Sentencing appeals are hard to win. Appellate courts review a sentence for abuse of discretion, and they repeat, in nearly every opinion, that they will not second-guess how a trial judge weighed the sentencing factors. The judge sat in the room. The judge watched the defendant. And the appellate court only has a transcript.
That’s why most challenges to the length of a sentence fail, and it’s why a reversal is worth reading closely when one comes down. Two decisions from the past two weeks show the same principle cutting in opposite directions. In Commonwealth v. Sharpe, 2026 PA Super 178 (Pa. Super. Aug. 6, 2026), the Superior Court vacated a Philadelphia sentence as unreasonably lenient — a Commonwealth appeal, which is rare enough on its own, and a successful one, which is rarer still. In United States v. Turbe, No. 25-3058 (3d Cir. July 31, 2026), the Third Circuit affirmed a sentence over a claim that the district judge had improperly considered arrests that never led to convictions.
Both cases came down to what the sentencing transcript showed. In Sharpe it showed too little. In Turbe it showed just enough.
How Pennsylvania Appellate Courts Review the Length of a Sentence
A challenge to how long a sentence is — as opposed to whether the court had the legal authority to impose it — is called a challenge to the “discretionary aspects” of the sentence. Nobody gets that review as a matter of right. The appealing party has to get through a four-part gate: a timely appeal, an issue preserved at sentencing or in a post-sentence motion, a short statement in the brief complying with the Rules of Appellate Procedure explaining why the appellate court should hear the claim, and a “substantial question” that the sentence conflicts with the Sentencing Code or with the fundamental norms underlying sentencing.
If the appealing party clears that gate, the Superior Court then looks at four statutory factors: the nature of the offense and the history and characteristics of the defendant; the sentencing court’s opportunity to observe the defendant; the findings the sentence was based on; and the guidelines. That list appears at 42 Pa.C.S. § 9781(d). And under Section 9781(c)(3), a sentence outside the guidelines can be vacated if it is “unreasonable.”
What makes a sentence unreasonable? The Supreme Court’s answer in Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), is that a sentence may be unreasonable if the record shows no consideration — express or implied — of the general standards in 42 Pa.C.S. § 9721(b): protection of the public, the gravity of the offense as it relates to the impact on the victim and the community, and the defendant’s rehabilitative needs. The guidelines are advisory in Pennsylvania. A judge can depart above or below them. But the reasons have to appear in the record, and they have to be reasons the record supports.
One more piece of context. Pennsylvania’s current sentencing guidelines include a list of factors a court may rely on to justify a departure below the recommended range. The list is not exhaustive, and it reads like a checklist of mitigation: the offense neither caused nor threatened serious harm, the defendant’s role in the offense, acceptance of responsibility, likelihood of responding affirmatively to probation, whether imprisonment would be an excessive hardship, treatment for substance abuse or behavioral health. Trial courts have begun citing these subsections directly. So did the judge in Sharpe. It didn’t save the sentence.
What Happened in Sharpe
Elijah Sharpe was alleged to have controlled a block in Kensington for a fentanyl and cocaine distribution operation. State police and the Attorney General’s Office wiretapped his calls through the summer and fall of 2023, and on those calls he can be heard directing what to sell, where to sell it, and how to handle competitors. He picked up drugs from distribution points and stocked stash houses. His two best-selling fentanyl stamps were branded “Death Row” and “Theraflu,” and the fentanyl was cut with xylazine.
On October 4, 2023, police executed search warrants at eight locations. At the three tied to Sharpe, they seized 266 grams of fentanyl and xylazine, 236 grams of cocaine and crack, 50 grams of methamphetamine, an AK-47, a shotgun, pistols, and ammunition.
Sharpe entered an open guilty plea, with no negotiated sentence, to possession with intent to deliver under 35 P.S. § 780-113(a)(30), criminal conspiracy, and corrupt organizations. The parties stipulated to an offense gravity score of 14 on the drug count and a prior record score of 2. As the opinion describes them, those scores produced a standard range of 8 to 15 years, with a mitigated minimum of seven years. The Commonwealth asked for nine to 20 years.
The trial court imposed 11½ to 23 months with immediate parole to house arrest, followed by ten years of probation. Roughly six years below the bottom of the mitigated range.
Two other facts matter. First, Sharpe was on probation in three separate prior drug cases when he committed these offenses, and he was found in direct violation of all three. Second, his allocution. Everyone agreed at the outset of the hearing that the guilty plea reflected acceptance of responsibility. Then Sharpe spoke, and what he said was that police had targeted him, that he told officers he didn’t sell drugs, that he was working and going to school and had no time to run the streets, that “a lot of illegal stuff happened in this case,” and that if anything he was “just around the wrong crowd.”
The court gave little credit to the claim of innocence and said Sharpe was “entrenched” in the organization. It departed downward anyway, citing his age, his commercial driver’s license progress, likely PTSD from seven months of pretrial custody, a childhood marked by parental absence and physical abuse in juvenile placements, five gunshot wounds sustained as a teenager, and his three young children.
The Commonwealth filed a post-sentence motion arguing the sentence was excessively lenient. It was denied by operation of law, and the Commonwealth appealed.
Why the Superior Court Vacated
Judge Stabile, writing for a panel that included Judge Lane and President Judge Emeritus Stevens, took the trial court’s stated reasons one at a time and found that none of them held up on the record.
The first was the characterization of the offenses as “nonviolent and economically based.” The panel called that a gross misstatement. Its reasoning was that focusing on the absence of direct physical force ignores that a fentanyl seller supplies the means by which users harm and kill themselves, and that Sharpe knew it. He can be heard on a call predicting that his “Death Row” stamp would “probably put somebody down.” Add the arsenal in the stash houses and his own prediction of a “war” with rivals, and the panel concluded that the mitigating factor for offenses that “neither caused nor threatened serious harm” simply didn’t apply.
The second was acceptance of responsibility. Here the panel had the easier task, because Sharpe’s own words did the damage. A guilty plea and waiver of a preliminary hearing can support this kind of mitigation, but not where the defendant then spends his allocution asserting innocence and complaining that the case was “crazy.” The panel also invoked Commonwealth v. Wilson, 946 A.2d 767 (Pa. Super. 2008), for the point that the guidelines apply the same way whether a case resolves by plea or by trial. A plea, standing alone, is not a ticket below the mitigated range.
The third was rehabilitative potential. Sharpe had done well on probation in some respects, but he had committed these offenses while serving probation in three prior drug cases. As the panel put it, he failed at the single most important condition: not committing new crimes. The trial court itself said it wasn’t sure Sharpe was done selling drugs.
The fourth was excessive hardship on Sharpe and his children. The panel accepted that this can support some mitigation, but faulted the trial court for weighing the hardship to Sharpe’s family without ever addressing the harm to the residents of Kensington, many of whom have families too, or how the public interest was served by his release.
The opinion closes with quotations from Justice Stewart’s concurrence in Furman v. Georgia about the seeds of anarchy and from Holmes, by way of Apprendi, on why the law has to carry out its threats. It also quotes the guidelines’ own statement, through the Supreme Court’s 2026 decision in Commonwealth v. Lee, that Pennsylvania’s system has “a primary focus on retribution.” The holding: imposing a purely rehabilitative sentence, with no retributive component, was unreasonably lenient on these facts. Vacated and remanded for resentencing.
Turbe: Bare Arrest Records in the Third Circuit
The federal decision addresses a narrower question, and one that comes up in federal sentencing: what a judge may do with arrests in the presentence report that never resulted in a conviction.
Federal sentencing courts have broad authority to consider information about a defendant. Congress said so in 18 U.S.C. § 3661. But the Third Circuit drew a due process limit in United States v. Berry, 553 F.3d 273 (3d Cir. 2009): a bare arrest record, standing alone, cannot support a longer sentence, because an arrest without proof of the underlying conduct doesn’t establish that the defendant did anything. “Bare” is the operative word. Where the presentence report describes the facts behind an arrest and the defendant doesn’t dispute them, the conduct may sometimes be considered.
Three later cases refined it. United States v. Mateo-Medina, 845 F.3d 546 (3d Cir. 2017), held that relying on a bare arrest record “even in part” is plain error. United States v. Ferguson, 876 F.3d 512 (3d Cir. 2017), held that merely mentioning arrests is not error, and that the defendant must “bridge the gap between reference and reliance.” And United States v. Mitchell, 944 F.3d 116 (3d Cir. 2019), found reliance where the judge interrupted the prosecutor to confirm the number of arrests, recited all eighteen of them, and then folded them into the “extensive criminal history” he identified as the sole justification for the sentence.
Gregory Turbe was arrested at the airport in St. Thomas with 11.82 kilograms of marijuana in his checked bags, pleaded guilty, and faced a guidelines range of 12 to 18 months. He had two convictions, from 1998 and 2003, and three arrests that never led to convictions. The presentence report described the facts of two of them, but as to the 1998 arrest, it said the circumstances were “unknown.”
Counsel objected at the start of the hearing both to the arrests appearing in the report and to their consideration at sentencing. The court overruled the objection and said this: it wouldn’t strike the arrests, because they showed prior contact with the criminal justice system; and, “I do want to note that I don’t put much weight on an individual who has been arrested but not convicted, but it could be relevant for other purposes.”
The panel, consisting of Judge Smith, Judge Krause, and Judge Chung, affirmed. It read that statement as the judge leaving the door open to a possible proper use of the arrests later in the hearing, not as an announcement that he would give them weight. A footnote makes the point directly: judges speaking in real time shouldn’t be held to grammatical perfection, and the court declined to read “I don’t put much weight on an individual” literally. The judge’s later references to Turbe’s “criminal history” referred only to his convictions, and the panel proved it with context. The judge remarked that the guidelines arguably understated Turbe’s criminal history because the 1998 conviction was too old to count, an observation that only makes sense if “criminal history” meant convictions, since arrests never count in the guidelines calculation.
Two other pieces of the opinion are worth addressing.
The panel rejected the government’s suggestion that reliance on bare arrests must be “central” to the sentence before it becomes error. Centrality is not the standard. Mateo-Medina‘s “even in part” language still governs. The panel also flagged, without approving, the prosecutor’s argument asking the court to focus on Turbe’s “interactions with the criminal justice system that has included convictions, that have included arrests.” The panel called that argument improper. It found no prejudice only because nothing suggested the judge was moved by it.
And in a footnote acknowledging the “apparent tension” between Ferguson and Mitchell, the panel offered practitioners something concrete. It considered adopting a supervisory rule requiring sentencing judges to identify any bare arrests brought to their attention and explain the relevance of any they considered. It declined, but it “remind[ed]” district judges to state explicitly either that they did not rely on any arrest not leading to a conviction, or that they found a particular arrest relevant, with an explanation of why and to what extent it affected the sentence.
That reminder is the most useful thing in Turbe for federal defense counsel. When a presentence report lists arrests without convictions, ask the court on the record to make that statement. If the court says it isn’t relying on them, the issue is gone.
Which brings up the preservation trap in this case. Turbe’s counsel objected at the beginning of the hearing, and the Third Circuit still applied plain error review, because under United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014) (en banc), an objection has to come when the procedural error becomes evident. An objection lodged before the error occurs is premature. So the sequence matters: object to the report’s contents up front, and then object again, specifically, if the court’s stated reasons at sentencing reveal reliance on the arrests.
Turbe also resolves a smaller question about explaining a supervised release term. The panel held that a sentencing court must respond to a party’s arguments, not to the party’s proposed sentence, because rejecting arguments implies rejecting the sentence those arguments supported. And a court need not run two separate § 3553(a) analyses, one for prison and one for supervision, so long as its single discussion shows meaningful consideration of the factors that bear on supervised release. Note the one exclusion: under 18 U.S.C. § 3583(c), the need for just punishment and to reflect the seriousness of the offense cannot support a term of supervised release. The panel cited last year’s Esteras v. United States, 606 U.S. 185 (2025), on the parallel point for revocations.
Both Cases Turn on the Sentencing Transcript
Read together, these decisions are about the same thing from opposite directions. Sharpe vacated a sentence because the reasons the judge gave weren’t supported by what the record showed. Turbe affirmed a sentence because the record didn’t show the judge relying on what he wasn’t allowed to consider.
Both depended on what the judge said out loud and what surrounded it. That’s a reason to treat the sentencing hearing as the place where the appeal is won or lost — asking the court to state its reasons with precision, tying mitigation to specific evidence and specific enumerated factors, and getting a clear statement on the record about anything the court is not supposed to weigh.