                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                        PUBLISH                               July 18, 2014

                                                                          Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS                          Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,

 v.                                                            No. 13-2021
 CAMILLE SUZANNE LENTE,

        Defendant–Appellant.




                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 1:05-CR-02770-WJ-1)


Benjamin A. Gonzles, Assistant Federal Public Defender, Office of the Federal Public
Defender, District of New Mexico, Albuquerque, New Mexico for the Defendant-
Appellant.

Laura Fashing, Assistant United States Attorney (Steven C. Yarbrough, Acting United
States Attorney with her on the briefs), Office of the United States Attorney, District of
New Mexico, Albuquerque, New Mexico for the Plaintiff-Appellee.


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.


LUCERO, Circuit Judge.
       Camille Lente appeals a sentence of 192 months’ imprisonment, well above her

advisory Guidelines range of 46 to 57 months, for three counts of involuntary

manslaughter and one count of assault resulting in serious bodily injury. The district

court relied on several specific factual circumstances in fashioning its sentence, including

Lente’s excessive recklessness, her underrepresented criminal history, and her post-

conviction conduct. It expressed disagreement with the Guidelines’ treatment of

multiple-fatality involuntary manslaughter cases and devoted significant attention to

other federal sentences involving similar conduct as part of its duty to avoid unwarranted

sentencing disparities. The district court’s determinations were fully supported by the

extensive record created by the parties. We conclude that the district court thoroughly

considered the relevant sentencing factors and adequately explained the basis of its

decision to vary substantially upward, and that the sentence imposed was reasonable.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                             I

                                             A

       This is the third appeal of Lente’s sentence. Following a drunk-driving crash on

the Isleta Pueblo in New Mexico, in which three people were killed and another severely

injured, Lente pled guilty to three counts of involuntary manslaughter and one count of

assault resulting in serious bodily injury. According to the pre-sentence investigation

report (“PSR”), her advisory Guidelines range was 46 to 57 months’ imprisonment.

However, the district court varied upward and imposed a sentence of 216 months.
                                            -2-
       A divided panel of this court vacated Lente’s sentence and remanded to a different

judge for resentencing. United States v. Lente, 323 F. App’x 698, 699 (10th Cir. 2009)

(unpublished) (per curiam) (“Lente I”). Judge Hartz concurred. He concluded that the

government breached the plea agreement by stipulating that Lente was “entitled to a

guidelines reduction in offense level for acceptance of responsibility” but subsequently

“endors[ing] a presentence-report recommendation that the court vary upward because of

the defendant’s failure to accept responsibility.” Id. at 699 (Hartz, J., concurring). Judge

Holmes also concurred. After noting seven bases identified by the district court for its

variance, he stated that although “the district court’s reasons might well justify some

upward variance, I simply cannot conclude on this record that they justify the major

variance that Ms. Lente received.” Id. at 705-06 (Holmes, J., concurring) (emphasis

omitted). Judge McWilliams would have affirmed the sentence. Id. at 699 (McWilliams,

J., dissenting).

       On remand, both sides submitted additional evidence. The district court also took

testimony and heard victim impact statements during a resentencing hearing. In a written

order, the district court concluded that a sentence of 192 months’ imprisonment was

appropriate. It cited several factors that contributed to its upward variance: (1) the

Guidelines did not adequately reflect Lente’s criminal history; (2) the Guidelines did not

sufficiently account for the multiple deaths caused by Lente; and (3) Lente exhibited

extreme recklessness, as evidenced by her blood alcohol content (“BAC”) reading after

the crash, her failure to ever obtain a driver’s license, and her decision to drive drunk in a
                                             -3-
non-remote area. It concluded that a within-Guidelines sentence would not adequately

reflect the seriousness of the offense, deter Lente from future criminal conduct, or protect

the public. After Lente submitted objections, the district court entered an amended order

with minor revisions.

       We reversed and remanded a second time. United States v. Lente, 647 F.3d 1021,

1024 (10th Cir. 2011) (“Lente II”). Although we expressly declined to reach the issue of

substantive reasonableness, we concluded that the district court had procedurally erred by

failing to address Lente’s argument that the sentence would create unwarranted

disparities. Id. at 1032-39. We also concluded that the district court committed

procedural error by failing to address Lente’s contention that the circumstances prior to

the crash mitigated her degree of recklessness, id. at 1036-37, noting that Lente

“introduced undisputed evidence about pre-accident developments, including that her

mother gave her the keys to her mother’s car and told her to drive,” id. at 1036. We

stated, however, that this latter procedural error “may have been harmless.” Id. at 1038.1

       The parties once again supplemented the record with extensive additional

evidence. At an evidentiary hearing, the court heard competing expert testimony. It re-

imposed a sentence of 192 months.



       1
         Additionally, we determined that even if the district court committed procedural
error by providing Lente with insufficient notice that it intended to rely on traffic
conditions at the crash location as part of its recklessness analysis, any such error was
harmless. Id. at 1037.

                                            -4-
                                              B

       The district court described the factual background of the crash as follows:

               On December 2, 2005, after consuming excessive amounts of
       alcohol, Defendant drove her mother’s Chevrolet Suburban on New Mexico
       State Road 47 within the exterior boundaries of the Isleta Indian
       Reservation in New Mexico. Anthony Tewahaftewa, a friend of
       Defendant’s, was riding in the front passenger seat. At approximately
       10:40 p.m., Defendant, who was traveling northbound, swerved across the
       center line of the highway and crossed into the southbound traffic lane. She
       collided with a Ford Ranger pickup truck driven by Jessica Murillo. Ms.
       Murillo was driving her 12-year-old brother, Andres Murillo, and her 17-
       year-old boyfriend, Joshua Romero, back from Albuquerque where the
       three had gone to see a movie. Anthony Tewahaftewa, Andres Murillo and
       Joshua Romero all died immediately on impact. The autopsy reports for
       the three deceased victims indicate that all three died of severe, multiple
       blunt force injuries sustained during the crash. Jessica Murillo survived,
       but sustained fractures to her right femur, right shoulder, and right ankle,
       and received numerous facial lacerations. In the intervening months, Ms.
       Murillo underwent many hours of physical therapy just so she could walk
       again. Defendant suffered two broken ankles and a dislocated hip.
       Immediately after the accident, both Jessica Murillo and Defendant were
       transported to the University of New Mexico Hospital.
               Two hours after the accident, hospital workers took a blood sample
       from Defendant. The blood sample test results showed a blood alcohol
       level of 0.21—over two and one-half times the New Mexico legal limit of
       [0.08]. In addition, the test revealed that Defendant had marijuana present
       in her system. In subsequent interviews with agents from the Bureau of
       Indian Affairs, Defendant admitted to drinking between 13 and 19 beers
       before the crash. Finally, the agents discovered that Defendant had never
       held a valid New Mexico drivers’ license and that the [Suburban] she was
       driving was not insured.

       After discussing its sentencing discretion, identifying the sentencing factors listed

in 18 U.S.C. § 3553(a), and accurately noting the undisputed Guidelines range of 46 to 57

months, the court held that a within-Guidelines sentence would be “woefully

inadequate.” Incorporating the legal analysis from its prior order, the court stated that it
                                             -5-
would focus primarily on the procedural errors identified by this court in Lente II.

       First, the district court ruled that the Guidelines did not adequately account for

Lente’s prior criminal history. It characterized Lente as showing “a repeated willingness

to abuse alcohol and engage in violent and/or reckless behavior.” However, Lente’s prior

convictions did not generate criminal history points under the Guidelines because they

occurred in tribal court.

       Second, the district court concluded that the Guidelines did not adequately account

for the multiple fatalities involved in the crash, describing this as perhaps the most

important factor in its decision to vary upward. As the court explained in its prior order,

the Guidelines assessed only one offense level increase per victim, resulting in

approximately five to six month increases in the advisory Guidelines range for each. See

U.S.S.G. § 3D1.4 (describing the formula for grouping multiple counts). The court stated

that “the Guidelines may be adequate” for involuntary manslaughter cases with a single

victim or cases in which the victims “share some minor culpability,” but in cases with

“multiple victims who are entirely blameless, and sadly just happened to be in the wrong

place at the wrong time,” the Guidelines were insufficient.

       Third, the court ruled that Lente had been extraordinarily reckless. It cited her

BAC of .21, measured approximately two hours after the crash. Although the court heard

competing expert testimony as to whether Lente’s BAC at the time of the crash was

higher or lower than .21, it declined to rule on that issue, stating instead that its finding of

extreme recklessness rested on the fact that Lente chose to drive after consuming enough
                                              -6-
alcohol to reach a .21 BAC. It also noted that Lente had never obtained a driver’s

license, and that she chose to drive drunk on State Road 47, which was classified by the

New Mexico Department of Transportation as “unusually significant to its surrounding

area” because it carries a high proportion of total urban area travel.

       In addition to the foregoing factors, which were taken into account—albeit in

somewhat lesser detail—during the second sentencing, the district court considered

several additional issues. It ruled that the mitigating factors cited by Lente regarding the

circumstances leading up to the crash were “insufficient to alter its previous conclusion

that Defendant acted with extreme recklessness.”

       The court also considered a great deal of evidence about Lente’s post-conviction

conduct. Despite testimony from a clinical psychologist that Lente was amenable to

treatment for the depression and substance abuse problems he identified, the court

concluded that Lente’s post-conviction conduct indicated a high likelihood of

reoffending. Lente repeatedly abused drugs while in prison and failed to pursue

substance abuse programs available to her. The court thus concluded that a variance was

necessary to deter future offenses and to protect the public.

       Finally, the court thoroughly considered the need to avoid unwarranted sentencing

disparities, as required by our opinion in Lente II. See 647 F.3d at 1035-36, 1038-39. It

distinguished a number of involuntary manslaughter cases cited by Lente because they

were based on subsequently altered legal rules or included differing factual circumstances

(fewer deaths, lower BACs, less-travelled roads, and victims who elected to ride with a
                                             -7-
drunk driver).

       The court announced its sentence of 192 months’ total imprisonment and provided

the parties with a written decision. It imposed 72 months for each manslaughter count,

with the first two (relating to Romero and Murillo) running consecutive and the third

running concurrent, and 120 months on the assault charge, 48 months of which would run

consecutive. At Lente’s request, the court allowed her to file written objections in order

to preserve issues for appeal before filing its judgment. Lente timely appealed.

                                             II

       We review a sentence “for reasonableness under an abuse-of-discretion standard.”

Peugh v. United States, 133 S. Ct. 2072, 2080 (2013). “Reasonableness review is a two-

step process comprising a procedural and a substantive component.” United States v.

Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). “Procedural reasonableness involves

using the proper method to calculate the sentence. Substantive reasonableness involves

whether the length of the sentence is reasonable given all the circumstances of the case in

light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d

1167, 1169 (10th Cir. 2007) (citation omitted). Lente contends the district court

committed both procedural and substantive errors.

                                             A

       “A sentence is procedurally unreasonable if the district court incorrectly calculates

or fails to calculate the Guidelines sentence, treats the Guidelines as mandatory, fails to

consider the § 3553(a) factors, relies on clearly erroneous facts, or inadequately explains
                                             -8-
the sentence.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). A district

court must “set forth enough to satisfy the appellate court that [it] has considered the

parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

       Lente frames two specific arguments as procedural in nature. First, she contends

that the district court erred in failing to consider the role Tewahaftewa played in causing

the crash. Second, she posits that the district court erred by failing to address her

argument that multiple-fatality crashes should not be punished substantially more

severely than single-death crashes because the Sentencing Commission has rejected such

an approach as imposing harsher punishments based merely on “happenstance.”

       Because the district court carefully considered and rejected these arguments, we

conclude that both are better addressed as going to substantive reasonableness. Lente

cites our holding in Lente II that a district court commits procedural error when it fails to

address “material, non-frivolous arguments made by the defendant.” 647 F.3d at 1035

(quotation omitted). It is true that “failing to consider the § 3553(a) factors and failing to

adequately explain the chosen sentence [are] forms of procedural error. On the other

hand, a challenge to the sufficiency of the § 3553(a) justifications relied on by the district

court implicates the substantive reasonableness of the resulting sentence.” United States

v. Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011) (quotations and citation omitted).

And “the weight the district court places on certain factors is reviewed for substantive

unreasonableness.” United States v. Pinson, 542 F.3d 822, 835-36 (10th Cir. 2008).
                                             -9-
       Despite Lente’s assertions that the district court did not address her arguments, the

order under review discusses the issues she cites in significant detail. As to

Tewahaftewa’s actions just before the crash, the court first recounted the complicated

procedural path this issue had charted.2 The court described the conflicting evidence as

to whether Tewahaftewa interfered with Lente’s driving before the crash. But it held that

regardless of whether Tewahaftewa grabbed the steering wheel, Lente’s degree of

recklessness was not lessened. See Fed. R. Crim. P. 32(i)(3)(B) (a district court must

either rule on a disputed factual issue at sentencing “or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or because the court will

not consider the matter in sentencing”). The court explained that its finding of extreme

       2
          In the PSR, the probation office stated that an upward variance may be
appropriate for a number of reasons, including Lente’s attempt to impart some blame to
Tewahaftewa by claiming that he grabbed the steering wheel just before the crash. The
PSR suggested that Lente’s actions did not truly demonstrate acceptance of
responsibility. Prior to the initial sentencing, the government moved for an upward
departure or variance and stated it concurred with the PSR’s recommendations. Lente
objected, arguing that her initial comments were made due to intoxication, pain, and
medication, and maintained that “[i]n all her statements after leaving the hospital . . . she
has clearly accepted full responsibility for her actions.” In announcing the first sentence,
the court referenced Lente’s attempt to shift blame to Tewahaftewa.
        One of the panel members in Lente I concluded that the government had breached
the plea agreement by endorsing the PSR’s recommendation for an upward variance
based on a failure to accept responsibility. 323 F. App’x at 699 (Hartz, J., concurring).
On remand, the government expressly disclaimed reliance on this factor. Lente argued
that based on witness statements and conflicting expert reports, “the government cannot
prove to any degree of certainty that she knowingly lied about Mr. Tewahaftewa’s
interfering with her driving,” and thus “[t]here is an insufficient factual basis for
assigning her additional punishment.” Following the second remand, Lente argued for
the first time that her account of Tewahaftewa’s actions just before the crash served to
mitigate her responsibility.

                                            -10-
recklessness “derives not from small actions undertaken immediately before the crash,

but from [Lente’s] choice to drive at all after consuming 13 to 19 beers.” It also

remarked that Lente had elected to drive Tewahaftewa home despite knowing that he was

intoxicated and had been acting in a boisterous manner, and that she was “too intoxicated

to be able to respond effectively to unexpected interference with her driving.”

       Lente claims it was irrational for the district court to discount the potentially

causal role played by Tewahaftewa while increasing her sentence dramatically based in

part on the number of deaths caused. This is plainly an argument that the district court

improperly weighted a factor, which goes to substantive reasonableness, Pinson, 542 F.3d

at 835-36, rather than a claim that the district court failed to consider an issue.

       With respect to Lente’s contention that the district court erred by ignoring her

argument regarding the Sentencing Commission’s guidance on multiple-fatality crashes,

we concluded in Lente II that this was a substantive issue:

       Ms. Lente argues that the district court erred in increasing her sentence
       because three people died. She contends it was procedural error for the
       court to give inadequate explanation of its policy disagreement with the
       Guidelines. Although the absence of explanation could constitute
       procedural error, the court did give a procedurally adequate explanation for
       why it disagreed with the Guidelines. Ms. Lente’s true complaint is with
       the substance of that explanation, i.e., whether the district court presented a
       persuasive reason for disagreeing with the Guidelines. This challenge
       speaks to substantive reasonableness.

647 F.3d at 1031 (citation omitted). Because the district court incorporated its previous

discussion of this issue, and expanded on that discussion, in its order following our

second remand, we similarly conclude that this complaint is substantive rather than
                                             -11-
procedural.3 We consider both issues in our analysis infra.

                                             B

       “[S]ubstantive reasonableness review broadly looks to whether the district

court abused its discretion in weighing permissible § 3553(a) factors in light of the

totality of the circumstances.” United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir.

2009) (quotation omitted). We review the substantive reasonableness of “all sentences—

whether inside, just outside, or significantly outside the Guidelines range—under a

deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).

Under this standard, we will “deem a sentence unreasonable only if it is arbitrary,

capricious, whimsical, or manifestly unreasonable.” Gantt, 679 F.3d at 1249 (quotation

omitted).

       The sentence imposed in this case is 135 months or 236.8% above the high end of

Lente’s advisory Guidelines range. A district court “must consider the extent of the

deviation [from the Guidelines] and ensure that the justification is sufficiently compelling

       3
          As part of this argument, Lente also claims that the district court procedurally
erred by stating in its order following the first remand, which was incorporated into the
order under review, that an upward departure for multiple deaths would be authorized
under U.S.S.G. § 5K2.1. This is a procedural reasonableness argument. See Haley, 529
F.3d at 1311 (procedural error to “incorrectly calculate[] . . . the Guidelines sentence”).
But we need not address whether a departure on this basis would have been proper, as the
district court ultimately did not depart, but rather varied, from Lente’s Guidelines range.
Because the court was permitted to vary from the Guidelines based on its disagreement
with the advisory range, as we discuss infra, we conclude that any procedural error in
making the statement at issue was harmless. See United States v. Gantt, 679 F.3d 1240,
1247 (10th Cir. 2012) (“A variance can be imposed without compliance with the rigorous
requirements for departures.”).

                                            -12-
to support the degree of the variance.” Gall, 552 U.S. at 50. A “major” variance should

have “a more significant justification than a minor one.” Id. Nevertheless, the Court has

rejected “an appellate rule that requires ‘extraordinary’ circumstances to justify a

sentence outside the Guidelines range” and “the use of a rigid mathematical formula that

uses the percentage of a departure as the standard for determining the strength of the

justifications required for a specific sentence.” Id. at 47.

       [W]e must give due deference to the district court’s decision that the
       § 3553(a) factors, on a whole, justify the extent of the variance. An
       appellate court’s disagreement with the District Judge’s conclusion that
       consideration of the § 3553(a) factors justified a marked deviation from the
       Guidelines range is simply not enough to support a holding that the district
       court abused its discretion. It is not for the Court of Appeals to decide de
       novo whether the justification for a variance is sufficient or the sentence
       reasonable, and we must therefore defer not only to a district court’s factual
       findings but also to its determinations of the weight to be afforded to such
       findings.

United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (quotations, citations, and

alterations omitted).

                                               1

       We begin with the factor that the district court described as perhaps the most

important to its decision to vary upward: its conclusion that the Guidelines do not

adequately account for the fact that Lente’s offense caused multiple deaths. “[A] district

court may in appropriate cases impose a non-Guidelines sentence based on a

disagreement with the Commission’s views.” Pepper v. United States, 131 S. Ct. 1229,

1247 (2011). Regarding such policy disagreements, the Supreme Court has instructed

                                             -13-
that “a district court’s decision to vary from the advisory Guidelines may attract greatest

respect when the sentencing judge finds a particular case outside the heartland to which

the Commission intends individual Guidelines to apply.” Kimbrough v. United States,

552 U.S. 85, 109 (2007) (quotations omitted). “On the other hand, while the Guidelines

are no longer binding, closer review may be in order when the sentencing judge varies

from the Guidelines based solely on the judge’s view that the Guidelines range fails

properly to reflect § 3553(a) considerations even in a mine-run case.” Id. (quotation

omitted).

          The district court stated that an increase of only five to six months for each of the

victims, particularly the three who died, constituted a “miserly enhancement.” But in its

prior order the court indicated that it did not categorically disagree with the Guidelines’

treatment of involuntary manslaughter. The court declined in both orders to take a

position on cases in which a single death results or those in which multiple victims had

some share of culpability, focusing on the fact that three of the victims in this case simply

happened to be in the wrong place at the wrong time. This circumstance also featured

heavily in the court’s explanation of its decision regarding the partially consecutive and

partially concurrent nature of the sentences imposed; it ran the sentence relating to the

death of Tewahaftewa concurrently to account for his decision to ride with a drunk

driver.

          Lente argues that the district court’s emphasis on multiple deaths was

unreasonable. She contends that the Sentencing Commission, acting in its institutional
                                               -14-
role, has considered and rejected large sentence increases for multiple-death crashes

because, in her words, such results are “based on the happenstance of unintended

consequences.” Lente claims that the district court failed to appreciate the unfairness of a

substantial increase disconnected from her mens rea and at odds with the Commission’s

policy choices.

       Under the multiple count rules contained in Chapter 3, Part D of the Guidelines,

each of Lente’s counts was treated as a separate “group” because they did not “involve

substantially the same harm.” See U.S.S.G. § 3D1.2. Each group added a single “unit,”

and her four total units resulted in an increase of four offense levels. See § 3D1.4. As

the district court noted, this system added approximately five to six months per victim to

Lente’s sentencing range. See id. ch. 5, pt. A (Sentencing Table).

       Although we agree with Lente that the Guidelines attempt to take multiple deaths

into account to at least some extent, we are less certain the Sentencing Commission has

concluded that such crimes cannot draw significantly harsher punishment because that

punishment would be based on “happenstance.” To the contrary, the history of the

involuntary manslaughter Guidelines indicates that the Commission, its working groups,

and others have repeatedly expressed concern that the sentencing ranges for involuntary

manslaughter generally and for multiple-fatality cases in particular are too low.

       In 1997, a Manslaughter Working Group Report stated that “[o]ffenses resulting in

multiple deaths . . . appear to raise a concern vis-à-vis the Guidelines’ multiple count

rules.” Manslaughter Working Group Report to the Commission 11 (Dec. 15, 1997),
                                            -15-
available at http://www.ussc.gov/sites/default/files/pdf/research/working-group-

reports/miscellaneous/19971215_Manslaughter_Report.pdf. A survey of probation

officers conducted by the Working Group demonstrated “a consensus that the multiple

counts rule was inadequate in dealing with additional deaths.” Id. at 12. The Report

suggested increasing the base offense level for reckless involuntary manslaughter, which

would “alleviate some of the problems in multiple death cases.” Id. at 14. And it

provided several options specifically addressing multiple-fatality cases, including:

(1) adding a specific offense characteristic; (2) altering the multiple count rules to

increase punishment; (3) imposing consecutive sentences rather than using multiple count

rules; (4) allowing for an upward departure; and (5) limiting the credit for acceptance of

responsibility in such cases. Id. at 14-15.

       In 2003, another working group provided input to the Commission with respect to

involuntary manslaughter. See Report of the Native American Advisory Group (Nov. 4,

2003), available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications

/research-projects-and-surveys/miscellaneous/20031104_Native_American_Advisory_

Group_Report.pdf. This report noted that it benefitted from the findings in the

Manslaughter Working Group Report, and recommended increasing the base offense

level for reckless involuntary manslaughter, adding a four-level increase for drunk

driving cases, and adding a two-level increase for multiple fatalities. Id. at 14-16.

During the time the Native American Advisory Group was working on its report, the

Sentencing Commission called for comment on a proposed amendment increasing the
                                              -16-
base offense level for involuntary manslaughter. See Notice of Proposed Amendments to

Sentencing Guidelines, Policy Statements, & Commentary & Request for Public

Comment, 67 Fed. Reg. 77,532, 77,546 (Dec. 18, 2002). The Native American Advisory

Group noted in its report that the Department of Justice recommended increasing the base

offense level and adding specific offense characteristics, and the Federal Defenders

supported a lesser increase to the base offense level. Report of the Native American

Advisory Group at 15.

       Effective November 1, 2003, the involuntary manslaughter Guidelines were

amended to increase the base offense level from 10 to 12 for criminally negligent

involuntary manslaughter and from 14 to 18 for reckless involuntary manslaughter.

U.S.S.G. app. C, amend. 652. The Commission stated that it promulgated the

amendment in response to “a concern that the federal sentencing guidelines do not

adequately reflect the seriousness of involuntary manslaughter offenses.” Id. It noted

input from the Department of Justice, some members of Congress, and the Native

American Advisory Group. Id.

       The Commission did not indicate why it rejected alternative proposals. See id.

However, it did identify as a priority the “continuation of its policy work related to

manslaughter, particularly consideration of guideline amendment proposals providing

specific offense characteristics in [§] 2A1.4 (Involuntary Manslaughter), and other

homicide offenses.” Notice of Final Priorities, 68 Fed. Reg. 52,264, 52,265 (Sept. 2,

2003). And shortly after Amendment 652 went into effect, the Commission requested
                                            -17-
public comment on whether the base offense level for involuntary manslaughter should

be further increased, whether the specific offense characteristics proposed by the Native

American Advisory Group should be adopted, and whether to adopt other changes.

Notice of Proposed Amendments to Sentencing Guidelines, Policy Statements, &

Commentary & Request for Public Comment, 68 Fed. Reg. 75,340, 75,371 (Dec. 30,

2003).

         Effective November 1, 2004, Amendment 663 to the Guidelines was enacted.

U.S.S.G. app. C, amend. 663. It raised the base offense level for involuntary

manslaughter to 22 for cases in which “the offense involved the reckless operation of a

means of transportation.” Id. The Commission also added a special instruction to the

involuntary manslaughter provision, directing that “[i]f the offense involved the

involuntary manslaughter of more than one person, Chapter Three, Part D (Multiple

Counts) shall be applied as if the involuntary manslaughter of each person had been

contained in a separate count of conviction.” Id. And the Commission added an

application note explaining that a “homicide resulting from driving, or similarly

dangerous actions, while under the influence of alcohol or drugs ordinarily should be

treated as reckless.” Id. The Commission stated that its addition of the new base offense

level “complete[d] work undertaken in the previous amendment cycle to address

disparities between federal and state sentences for vehicular manslaughter.” Id. The

purpose of the special instruction was “to ensure an incremental increase in punishment

for single count offenses involving multiple victims.” Id.
                                           -18-
       In addition, Congress has twice acted to increase the penalties for involuntary

manslaughter. In 1994, Congress increased the statutory maximum for involuntary

manslaughter from three to six years. Violent Crime Control & Law Enforcement Act of

1994, Pub. L. No. 103-322, § 320102, 108 Stat. 1796, 2109. And subsequent to the crime

at issue in this case, Congress further increased the statutory maximum to eight years.

Court Security Improvement Act of 2007, Pub. L. No. 110-177, § 207, 121 Stat. 2534,

2538 (2008).4

       Data collected by the Sentencing Commission also demonstrates that district

courts have used their discretion to vary above the involuntary manslaughter Guidelines

range much more frequently than for federal defendants generally, and have often

imposed substantial upward variances. See U.S. Sentencing Comm’n, Sourcebook of

Fed. Sentencing Statistics, tbls. N, 28, 32B (2013) (1.5% total upward variant sentences,

7.3% of involuntary manslaughter cases, median manslaughter variance 52.2% above

Guidelines maximum)5; U.S. Sentencing Comm’n, Sourcebook of Fed. Sentencing

Statistics, tbls. N, 28, 32B (2012) (1.3% total upward variant sentences, 16.2% of


       4
        The district court correctly identified Lente’s statutory maximum for the pre-
amendment involuntary manslaughter counts as six years. See United States v. Weiss,
630 F.3d 1263, 1276 (10th Cir. 2010) (“The Ex Post Facto Clause forbids the imposition
of punishment more severe than the punishment assigned by law when the act to be
punished occurred.” (quotation omitted)).
       5
         The Sentencing Commission provides data describing whether sentences fall
within, above, or below the advisory range for specific crimes, but groups all
manslaughter convictions together for purposes of stating the median variance.

                                           -19-
involuntary manslaughter cases, median manslaughter variance 93.6% above Guidelines

maximum); U.S. Sentencing Comm’n, Sourcebook of Fed. Sentencing Statistics, tbls. N,

28, 32B (2011) (1.2% total upward variant sentences, 8.2% of involuntary manslaughter

cases, median manslaughter variance 91.7% above Guidelines maximum); U.S.

Sentencing Comm’n, Sourcebook of Fed. Sentencing Statistics, tbls. N, 28, 32B (2010)

(1.3% total upward variant sentences, 16.0% of involuntary manslaughter cases, median

manslaughter variance 62.2% above Guidelines maximum); U.S. Sentencing Comm’n,

Sourcebook of Fed Sentencing Statistics, tbls. N, 28, 32B (2009) (1.3% total upward

variant sentences, 10.5% of involuntary manslaughter cases, median manslaughter

variance 64.9% above Guidelines maximum); U.S. Sentencing Comm’n, Sourcebook of

Fed. Sentencing Statistics, tbls. N, 28, 32B (2008) (0.9% total upward variant sentences,

2.3% of involuntary manslaughter cases, no data on median manslaughter variance); U.S.

Sentencing Comm’n, Sourcebook of Fed. Sentencing Statistics, tbls. N, 28, 32B (2007)

(0.8% total upward variant sentences, 5.9% of involuntary manslaughter cases, median

manslaughter variance 22.6% above Guidelines maximum); U.S. Sentencing Comm’n,

Sourcebook of Fed. Sentencing Statistics, tbls. N, 28, 32B (2006) (0.7% total upward

variant sentences, 11.4% of involuntary manslaughter cases, median manslaughter

variance 50% above Guidelines maximum).6


       6
         Following our second remand, the government submitted evidence to the district
court indicating that the total percentage of above-Guidelines sentences in involuntary
manslaughter cases is even higher than the cited rates. We do not include upward
                                                                             Continued . . .
                                             -20-
       Despite the foregoing, Lente’s argument that multiple deaths are more the result of

chance than additional fault carries some force. As we stated in United States v. Rosales-

Garcia, 667 F.3d 1348 (10th Cir. 2012), we should attempt to avoid “needless and

nonsensical aberrant results” under which a defendant “would face more substantially

increased punishment solely because of . . . happenstance.” Id. at 1354. Nevertheless,

we think the district court’s conclusion that the Guidelines do not adequately account for

multiple-death crashes is at least reasonable.

       In Rosales-Garcia, the “happenstance” referenced was the order in which a

defendant’s state probation was revoked as compared to the initiation of federal charges.

Id. There is no plausible argument that one such ordering is more deserving of

punishment than another. In sharp contrast, the fact that Lente’s crime caused the deaths

of several victims is clearly a relevant consideration in determining an appropriate

sentence. “Courts have always taken into consideration the harm done by the defendant

in imposing sentence . . . .” Payne v. Tennessee, 501 U.S. 808, 825 (1991). That harm


departures in our analysis. See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th
Cir. 2007), overruled on other grounds by Irizarry v. United States, 553 U.S. 708, 713
(2008) (explaining that a departure is based on application of Chapters Four or Five of
the Sentencing Guidelines, and a variance is based on the § 3553(a) factors). Because a
majority of federal involuntary manslaughter defendants are Native American, the high
percentage of departures may be connected to U.S.S.G. § 4A1.2(i), which provides that
tribal court sentences are not counted toward a defendant’s criminal history score, but
may provide grounds for an upward departure under U.S.S.G. § 4A1.3 for
underrepresented criminal history. See Report of the Native American Advisory Group
at 9 n.27, 14.


                                            -21-
comprises part of the “the nature and circumstances of the offense” that district courts

must address in fashioning a sentence. 18 U.S.C. § 3553(a)(1). Congress directed the

Sentencing Commission to consider “the nature and degree of the harm caused by the

offense, including whether it involved . . . a person [or] a number of persons.” 28 U.S.C.

§ 994(c)(3). And the Guidelines include in the definition of relevant conduct “all harm

that resulted from the acts and omissions” of the defendant in committing the offense.

U.S.S.G. § 1B1.3(a)(3).

       Lente contends, however, that by adopting U.S.S.G. § 2A1.4(b)(1), the Sentencing

Commission has determined that multiple deaths warrant only marginally increased

punishment. That provision states that “[i]f the offense involved the involuntary

manslaughter of more than one person, Chapter Three, Part D (Multiple Counts) shall be

applied as if the involuntary manslaughter of each person had been contained in a

separate count of conviction.” Id. The Commission adopted this instruction “to ensure

an incremental increase in punishment for single count offenses involving multiple

victims.” U.S.S.G. app. C, amend. 663. Because Lente was charged with separate

counts, this provision did not apply to her case. This instruction is addressed to situations

in which a defendant is charged with a single count of involuntary manslaughter despite

multiple deaths, reflecting the Commission’s desire “to limit the significance of the

formal charging decision.” U.S.S.G. ch. 3, pt. D, introductory cmt.

       It is true that the Guidelines’ ordinary grouping rules apply to cases involving

multiple involuntary manslaughter convictions. But this is the result of the application of
                                            -22-
a general rule that covers a large number of very different crimes, rather than a deliberate,

specific choice by the Sentencing Commission with respect to multiple-fatality drunk-

driving incidents. For example, a defendant convicted of several counts of minor assault,

burglary, or possessing contraband in prison would face the same incremental increase

per count as an involuntary manslaughter defendant who kills several people. See

U.S.S.G. § 3D1.2(d) (listing §§ 2A2.3 (Minor Assault), 2B2.1 (Burglary), and 2P1.2

(Possessing Contraband in Prison) as offenses that are separately grouped).

       Considering the vast array of conduct covered by the grouping rules contained in

§ 3D1.1 to 4, we do not think the district court’s decision can be characterized as

expressing an opinion that “the Guidelines range fails properly to reflect § 3553(a)

considerations even in a mine-run case.” Kimbrough, 552 U.S. at 109 (quotation

omitted). Instead, the court expressed disagreement with the adequacy of the grouping

rules with respect to a vanishingly small subset of offenses those rules cover: multiple-

count involuntary manslaughter cases. Only one tenth of one percent of total federal

sentences in 2013 included involuntary manslaughter convictions. U.S. Sentencing

Comm’n, Sourcebook of Federal Sentencing Statistics, tbl. 17 (2013). And the

Commission expressly notes that the grouping “rules have been designed primarily with

the more commonly prosecuted federal offenses in mind.” U.S.S.G. ch. 3, pt. D,

introductory cmt.

       Nor does Lente’s crime constitute a “mine-run” involuntary manslaughter case.

Only nine percent of involuntary manslaughter cases considered by the Manslaughter
                                            -23-
Working Group involved multiple deaths. Manslaughter Working Group Report to the

Commission at 11. Only three of these ninety-four cases involved three deaths. Id. at 12.

According to New Mexico state data from 2005, alcohol-related crashes that resulted in a

fatality averaged 1.16 deaths per crash.7 The district court also relied on the fact that

three of the victims—two of whom were killed—were entirely blameless in that they did

not choose to ride with an impaired driver. The Manslaughter Working Group found that

only one third of involuntary manslaughter victims were strangers to the offender.

Manslaughter Working Group Report to the Commission at 10, fig. 14.

       Rather than rejecting the Sentencing Commission’s conclusions as to a typical

case, the district court expressed disagreement with the manner in which the Guidelines

treat the confluence of two Guidelines provisions that rarely interact. Given that the vast

majority of involuntary manslaughter cases do not result in multiple deaths, that

relatively few victims simply happen to be in the wrong place at the wrong time, and that

the Commission has acknowledged it crafted the grouping rules with more common

crimes in mind, we must reject Lente’s argument that the district court’s decision

warrants the “closer review” for categorical policy disagreements referenced in




       7
         Lente notes that this figure includes single car accidents in which only the driver
was killed, which could not lead to involuntary manslaughter charges. We acknowledge
that shortcoming in the data, but conclude that the record firmly supports the conclusion
that multiple-death involuntary manslaughter cases are rare.


                                            -24-
Kimbrough, 552 U.S. at 109 (quotation omitted).8 Lente’s case involves neither a

common application of the grouping rules, nor an ordinary involuntary manslaughter

offense. The district court’s decision permissibly focused on the particular and unusual

facts of Lente’s case.

          Recognizing that at least some deference is due to the district court, we conclude

that it permissibly varied upward in significant measure based on its conclusion that the

Guidelines did not adequately account for the harm caused by Lente’s offense. The court

acted within its discretion in concluding that a six-month sentencing increase per victim

was not sufficient to “to reflect the seriousness of the offense.” § 3553(a)(2)(A). As

described above, the Commission has received input questioning the adequacy of the

Guidelines’ recommended sentences for multiple-fatality involuntary manslaughter cases.

See Manslaughter Working Group Report to the Commission at 11 (“Offenses resulting

in multiple deaths . . . appear to raise a concern vis-à-vis the Guidelines’ multiple count

rules.”); id. at 12 (noting a consensus among probation officers “that the multiple counts

rule was inadequate in dealing with additional deaths”); Report of the Native American

Advisory Group at 15-16 (recommending an additional enhancement for multiple-death

cases).

          8
         The Supreme Court has repeatedly declined to rule definitively on whether such
categorical policy differences actually warrant closer review. See Peugh, 133 S. Ct. at
2080 n.2 (noting that the Court has “left open the question”); Kimbrough, 552 U.S. at 109
(stating that “closer review may be in order”). Given our conclusion that the district
court distinguished the case at bar from a mine-run case, we have no occasion to consider
the issue.

                                              -25-
       Moreover, other courts have concluded that multiple-victim involuntary

manslaughter cases are insufficiently punished by the Guidelines. In United States v.

Fight, 625 F.3d 523 (8th Cir. 2010), the court upheld a sentence of 231 months’

imprisonment for three involuntary manslaughter convictions resulting from an impaired-

driving crash, well above the defendant’s Guidelines range of 77 to 96 months. Id. at

524. The district court in that case relied heavily on the fact that the defendant caused the

deaths of “three innocent individuals.” Id. at 525. And the Eighth Circuit held that the

district court permissibly exercised its discretion in concluding that “concurrent sentences

within the advisory guideline range did not adequately reflect the seriousness of [the

defendant]’s offenses.” Id. at 526. Similarly, in United States v. Shipp, 529 F. App’x

862 (9th Cir. 2013) (unpublished), the court affirmed an upwardly variant 108-month

sentence for involuntary manslaughter and assault resulting in serious bodily injury. Id.

at 862-63. The court rejected both procedural and substantive reasonableness challenges,

concluding that the district court satisfactorily “explained why it believed that the

Guidelines did not adequately account for multiple victims and why consecutive

sentences were necessary.” Id. at 863. And although we reversed under a now-rejected

set of sentencing rules, see Section II.B.6, infra, the district court in United States v.

Wolfe, 435 F.3d 1289 (10th Cir. 2006), concluded that multiple deaths are “not

adequately taken into account by the involuntary manslaughter guidelines.” Id. at 1294.

       We acknowledge that Lente did not possess an intent to injure, and that the

number of victims who are harmed in a single crash such as this one is based at least
                                             -26-
partly on chance. However, as the Manslaughter Working Group noted, “the culpable

mental state in alcohol-related or drug-related vehicular homicide offenses may involve

such an egregious state of recklessness that it approaches the mental state for murder.”

Manslaughter Working Group Report to the Commission at 11. And as we explain in the

next section, the district court correctly concluded that Lente acted with extreme

recklessness. We do not think it controversial that a district court should consider the

harm caused by a defendant’s unlawful conduct. See Payne, 501 U.S. at 825. Nor do we

need to belabor the point that adding just a few months of additional prison time can

reasonably be found insufficient to reflect the seriousness of causing the death of an

innocent young person.

       Despite both the Guidelines’ treatment of multiple deaths and Lente’s

“happenstance” argument, we hold the district court did not abuse its discretion in

varying upward significantly to account for the harm done to Lente’s victims. We do not

conclude that this factor alone would support the sentence imposed. However, this factor

permissibly accounts for a substantial portion of the variance.

                                             2

       The multiple deaths caused by Lente’s crash were not the only justification

supporting the district court’s variance. The court also held that a variance was

appropriate because Lente acted with extreme recklessness, and it provided several

reasons for this conclusion. We agree that Lente acted with extreme recklessness and

that this factor supported an upward variance.
                                            -27-
         As the Court stated in Kimbrough, “a district court’s decision to vary from the

advisory Guidelines may attract greatest respect when the sentencing judge finds a

particular case outside the heartland to which the Commission intends individual

Guidelines to apply.” 552 U.S. at 109 (quotations omitted). “Even though the

involuntary manslaughter Guideline already contemplates reckless conduct and the usual

case of drunk driving resulting in death,” district courts nonetheless “may still examine

the degree of recklessness in a given case to determine whether this factor exists to such

an exceptional level it takes the case outside the ‘heartland’ of usual involuntary

manslaughter cases.” United States v. Whiteskunk, 162 F.3d 1244, 1250 (10th Cir.

1998).

         Lente notes that the “heartland” of involuntary manslaughter cases in federal court

includes alcohol-related vehicular homicides. See Report of the Native American

Advisory Group at 14-15 (almost 75% of cases involving Indian defendants in the data

set fit this description). Even among this subset of cases, however, Lente’s conduct was

egregious. Lente admitted that she consumed between thirteen and nineteen drinks

before the crash. When tested at the hospital following the crash, her BAC was measured

at .21. As the district court noted, this figure is more than two-and-a-half times New

Mexico’s legal limit of .08. See N.M. Stat. § 66-8-102(C). It is significantly higher than

both the average New Mexico DWI figure of .16, and the mode BAC in fatal alcohol-

related accidents according to a 2006 study by the National Highway Traffic Safety

Administration, which was also .16. Data included with the Manslaughter Working
                                             -28-
Group Report provides that “each .02% increase in BAC results in a doubling of the risk

of being in a fatal crash.” Manslaughter Working Group Report to the Commission app.

4, at 4. And this court has “expressly sanctioned the district court’s reliance on the

defendant’s blood-alcohol level . . . in considering the degree of recklessness exhibited by

the defendant’s conduct.” United States v. Jones, 332 F.3d 1294, 1302 (10th Cir. 2003)

(quotation omitted); see also United States v. Pettigrew, 468 F.3d 626, 641 (10th Cir.

2006) (BAC of “approximately three times the legal limit” and other factors supported

departure for excessive recklessness).

       Lente is correct that this data is not perfect. Her BAC was measured several hours

after the crash, but the BAC data upon which the district court relied did not specify the

exact timing of BAC measurements. However, we think the district court’s conclusion

that Lente behaved in an extremely reckless manner by driving after consuming enough

alcohol to reach a .21 BAC is sound. New Mexico state law recognizes that BAC

measurements will often be taken sometime after an accident occurs. See N.M. Stat. 66-

8-102(C) (state law criminalizes driving if the defendant has a BAC of at least .08

“within three hours of driving the vehicle”). And common sense suggests that Lente’s

alcohol intake was excessive by any standard.

       The district court also relied on the fact that Lente elected to drive on a well-

travelled thoroughfare. Responding to our statement in Lente II that more specific

information about the traffic on the road at issue would have been useful, 647 F.3d at

1037, the court noted that State Road 47 was classified by the New Mexico Department
                                            -29-
of Transportation as an “Urban Principal Arterial-Other,” which means it is “unusually

significant to its surrounding area,” serves a major metropolitan center, and carries a high

proportion of total urban area travel. State data showed that at the time of year and time

of day of the accident, State Road 47 saw between 500 and 600 vehicles per hour.

Additionally, the court cited the fact that Lente had never obtained a driver’s license.

The Manslaughter Working Group recommended additional punishment for defendants

who lack a valid driver’s license. Manslaughter Working Group Report to the

Commission at 14.

       Lente argues that these latter two factors do not demonstrate extraordinary

recklessness. We agree that this information in and of itself would not support a large

variance.9 But when considered together with Lente’s excessive alcohol consumption,

which was plainly the focus of the district court’s extreme recklessness finding, the

district court permissibly concluded that Lente’s offense conduct fell outside the

heartland of involuntary manslaughter cases.

       The district court elected to vary rather than depart, but we note that the

Guidelines provide for an upward departure “in an exceptional case” if a factor already

considered by the Guidelines “is present in the offense to a degree substantially in excess

of . . . that which ordinarily is involved in that kind of offense.” U.S.S.G. § 5K2.0(a)(3).


       9
        The district court also noted that Lente’s failure to obtain a driver’s license
indicated a lack of respect for the law, which is a proper consideration. See
§ 3553(a)(2)(A) (sentence should reflect the need “to promote respect for the law”).

                                            -30-
And in Whiteskunk, we held that although the involuntary manslaughter Guidelines

account for recklessness, excessive recklessness as evidenced in part by a BAC more than

twice the legal limit supported an upward departure. 162 F.3d at 1250, 1252-53. We

have stated that a four-level departure for excessive recklessness would be reasonable

based in part on a BAC “more than twice the legal limit,” Jones, 332 F.3d at 1302, 1306,

and we have affirmed a two-level departure for excessive recklessness when the driver

had a BAC approximately three times the legal limit, Pettigrew, 468 F.3d at 641. We

acknowledge, however, that these departures were also based on the defendants’ histories

of driving while intoxicated. Pettigrew, 468 F.3d at 641; Jones, 332 F.3d at 1302. A

two- to four-level enhancement would have added fourteen to thirty months to the top of

Lente’s Guidelines range. See U.S.S.G. ch. 5, pt. A (Sentencing Table). We cite these

figures for their persuasive implications, cognizant that a “rigid” formula is no longer

appropriate in conducting substantive reasonableness review. Gall, 552 U.S. at 47.

       In light of the district court’s thorough consideration of the circumstances of the

offense and a comparison of Lente’s conduct with similar offenses, we uphold the district

court’s conclusion that Lente behaved in an extremely reckless manner. We also affirm

the district court’s reliance on this factor as part of its rationale for imposing a substantial

upward variance. See § 3553(a)(1) (requiring consideration of “the nature and

circumstances of the offense”).

                                               3

       The district court concluded that Lente’s criminal history was significantly
                                              -31-
underrepresented in her Guidelines advisory range. Despite numerous convictions, Lente

was not assessed any criminal history points because all of her crimes were adjudicated in

tribal court. See U.S.S.G. § 4A1.2(i) (“[s]entences resulting from tribal court convictions

are not counted” in criminal history computations). As with extreme recklessness, the

Guidelines expressly allow a district court to depart upward based on an underrepresented

criminal history. See id.; § 4A1.3 (“If reliable information indicates that the defendant’s

criminal history category substantially under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other

crimes, an upward departure may be warranted.”). The district court elected to vary

rather than to depart, but it noted that Lente’s criminal history category would have been

III had her adult convictions been counted, resulting in an advisory range of 57 to 71

months.10

       Moreover, the district court focused on the specific characteristics of Lente’s prior

adult convictions. The record supports the district court’s finding that Lente has

demonstrated “a repeated willingness to abuse alcohol and engage in violent and/or

reckless behavior.” The court referenced its prior order, which described five previous

tribal convictions, none of which counted toward Lente’s criminal history score. For four

of these, tribal records indicated that Lente was convicted of disorderly conduct after


       10
          We also note that a four-level departure based on extreme recklessness, coupled
with a criminal history category of III, would have resulted in an advisory range of 87-
108 months. See U.S.S.G. ch. 5, pt. A (Sentencing Table).

                                            -32-
becoming intoxicated and fighting or destroying property. The court expressly declined

to rely on three of these convictions, which occurred when Lente was a juvenile. It relied

on Lente’s two adult convictions for disorderly conduct and one for assault and battery.

The second disorderly conduct offense had not been considered in the court’s previous

order, and it “affirmed Defendant’s continuing problems with engaging in reckless

behavior as a result of alcohol abuse.”

       Lente correctly states that her criminal history does not include convictions for

drunk driving and that her prior crimes can arguably be described as “petty” in nature.

According to the Manslaughter Working Group, approximately one quarter of defendants

sentenced in vehicular homicide cases had prior “alcohol/public intoxication records”

(excluding driving while intoxicated), and less than ten percent had prior convictions for

assault or battery. Manslaughter Working Group Report to the Commission fig. 15.

Lente’s troubling tendency to abuse alcohol and violate the law is patent from her

criminal record. And her zero criminal history points clearly understated her criminal

history. The district court permissibly weighed this factor in its decision to vary upward.

                                             4

       Lente’s substance abuse and criminal behavior continued post-conviction. The

Supreme Court has held that evidence of post-sentencing conduct may be considered

“when a defendant’s sentence has been set aside on appeal and [the] case remanded for

resentencing.” Pepper, 131 S. Ct. at 1241. Such evidence “may be highly relevant to

several of the § 3553(a) factors that Congress has expressly instructed district courts to
                                            -33-
consider at sentencing” because it “provides the most up-to-date picture of [a

defendant]’s history and characteristics” and “also sheds light on the likelihood that [s]he

will engage in future criminal conduct, a central factor that district courts must assess

when imposing sentence.” Id. at 1242 (quotation omitted).

       The defendant in Pepper demonstrated positive tendencies between sentencing

proceedings. See id. Lente, unfortunately, has not. See id. at 1249 (citing with approval

Wasman v. United States, 468 U.S. 559, 572 (1984) (“[A] sentencing authority may

justify an increased sentence by affirmatively identifying relevant conduct or events that

occurred subsequent to the original sentencing proceeding.”)). Recorded prison calls

show that Lente regularly abused narcotics while incarcerated. She also indicated she

planned to become intoxicated upon her release and had used alcohol at least once in

prison. Lente had two prison disciplinary sanctions for the use of drugs or alcohol, as

well as a number of other offenses. She was expelled from a drug education class due to

repeated tardiness and refusal to follow the instructor’s direction not to wear headphones

during class sessions. And Lente failed to apply to prison drug treatment programs.

Shortly before her latest sentencing, a letter containing the opiate drug suboxone was sent

to Lente by a former inmate. The district court noted that although there was no evidence

Lente knew the drug was being sent, it was unlikely it would have been mailed to her

absent an expectation that Lente knew how to use it.

       Lente’s post-conviction conduct firmly supports the district court’s finding that

she was likely to reoffend. Despite seven years in prison, and the availability of
                                            -34-
treatment options, Lente has elected to continue her pattern of substance abuse. In light

of the foregoing evidence, the district court’s conclusion that an upwardly variant

sentence was necessary to “afford adequate deterrence to criminal conduct” and “protect

the public from further crimes of the defendant,” § 3553(a)(2)(B) & (C), was not

arbitrary.

                                              5

       The district court devoted significant attention to “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty

of similar conduct.” § 3553(a)(6). This provision requires a district court to consider

“disparities nationwide among defendants with similar records and Guideline

calculations.” Verdin-Garcia, 516 F.3d at 899 (emphasis omitted). It recognizes the

“unquestioned” precept “that uniformity remains an important goal of sentencing.”

Kimbrough, 552 U.S. at 107. However, “disparate sentences are allowed where the

disparity is explicable by the facts on the record.” United States v. Davis, 437 F.3d 989,

997 (10th Cir. 2006) (quotation and citations omitted). “And § 3553(a)(6)’s

consideration of unwarranted sentence disparities is but one factor that a district court

must balance against the other § 3553(a) factors in arriving at an appropriate sentence.”

United States v. Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010).

       Lente cites Wolfe, which contains several factual similarities to her case. The

defendant there was convicted on two counts of involuntary manslaughter following a

drunk-driving crash that killed two occupants of her vehicle and caused minor injuries to
                                            -35-
three other passengers. Id. at 1292-93. Wolfe consumed six or seven beers, and her BAC

was measured at .13 four hours after the crash. Id.11 Under the then-mandatory

Guidelines, Wolfe faced a sentencing range of 12 to 18 months. Id. at 1292-94. The

district court elected to vary upward three levels for “excessive recklessness,” three levels

because the defendant endangered the public welfare, and an additional three levels

because “the instant offense involved two deaths, and this was not adequately taken into

account by the involuntary manslaughter guidelines.” Id. at 1294 (quotations omitted). It

imposed a sentence of 41 months. Id. We reversed, concluding that the district court

“impermissibly double counted when it departed upward three levels because Wolfe’s

conduct resulted in two deaths, when the guideline calculation had already accounted for

the two deaths,” id. at 1302, and that “the district court cannot depart upward based on

the significant risk Wolfe’s conduct posed to the public if that determination is based

solely on the fact that two people died” because “the guidelines did already take this

factor into account,” id. at 1300, 1301. On remand, the district court imposed a sentence

of 20 months.

       There are several significant factual differences between Wolfe and the case at

bar: Wolfe consumed far less alcohol and killed one fewer person. Moreover, all of the

victims in that case elected to ride with a drunk driver. Further, in sentencing Lente, the


       11
           The district court stated at sentencing that Wolfe’s BAC “was probably closer to
.2 at the time of the accident” but “the district court did not use this factual finding, if it
was one,” in reaching its sentencing decision. Id. at 1298 n.7 (quotation omitted).

                                             -36-
district court stressed the fact that Wolfe was decided under a very different set of

sentencing rules. The base offense level applicable to Wolfe was the one in place prior to

the adoption of Amendments 652 and 663. See Wolfe, 435 F.3d at 1293 (stating that the

base offense level for reckless involuntary manslaughter was 14); U.S.S.G. app. C,

amend. 652 (raising base offense level to 18); U.S.S.G. app. C, amend. 663 (raising base

offense level to 22 if offense involved “the reckless operation of a means of

transportation”). And crucially, Wolfe held that district courts may not depart based on

factors already taken into account in a Guidelines range. Wolfe, 435 F.3d at 1302

(“[T]he fact that multiple deaths occurred, standing alone, cannot support the district

court’s decision to depart . . . [because] the guideline calculation had already accounted

for the two deaths.” (quotation omitted)). But under current precedent “[d]istrict courts

have broad discretion to consider particular facts in fashioning a sentence under 18

U.S.C. § 3553(a), even when those facts are already accounted for in the advisory

guidelines range.” United States v. Yanez-Rodriguez, 555 F.3d 931, 946 (10th Cir.

2009).

         Moreover, we did not discuss the availability of variances in Wolfe, although the

case was decided shortly after United States v. Booker, 543 U.S. 220 (2005). The district

court in Wolfe (sentencing before Booker) expressed concern that multiple deaths were

“not adequately taken into account by the involuntary manslaughter guidelines,” 435 F.3d

at 1294, but its sole option to rectify that inadequacy was the strictly limited use of

upward departures. Following Kimbrough, however, district courts are free to “vary
                                             -37-
from Guidelines ranges based solely on policy considerations, including disagreements

with the Guidelines.” 552 U.S. at 101 (quotation and alteration omitted). And the district

court in this case described its disagreement with the manner in which the Guidelines

treat multiple-fatality involuntary manslaughter cases as perhaps the most important

factor in its decision. Our sentencing scheme “seeks to eliminate not all sentencing

disparities, but only ‘unwarranted’ disparities.” United States v. Contreras, 180 F.3d

1204, 1210 (10th Cir. 1999). We think that the Supreme-Court-mandated change in

governing law suffices as a permissible distinguishing factor from Wolfe.12

       Lente also cites Pettigrew, in which we affirmed a 126-month sentence for a

defendant with a BAC approximately three times the legal limit who killed one and

injured three occupants of another vehicle. 468 F.3d at 630-31, 641. But as with Wolfe,

comparing Pettigrew to the present case is difficult in light of the district court’s heavy

reliance on its policy disagreement with the Guidelines—a sentencing consideration that

was prohibited in our earlier cases. The district court in Pettigrew attempted to impose a

lengthy sentence even though it was required to work within the confines of the

Guidelines. See 468 F.3d at 633 (departing upward to statutory maximum). And the

defendant in Pettigrew caused only a single death—a highly relevant consideration.


       12
          Lente notes that Wolfe received a 20-month sentence on remand, but even at the
time of the resentencing in that case our circuit held that “it is error for a district court to
impose a sentence outside the advisory guideline range based upon its own disagreement
with the” Guidelines. United States v. McCullough, 457 F.3d 1150, 1172 (10th Cir.
2006).

                                             -38-
       We similarly question Lente’s reliance on United States v. New, 491 F.3d 369 (8th

Cir. 2007). In that case, the defendant was sentenced to 144 months after he killed two

passengers while driving with a BAC of .32. Id. at 372. The defendant had a “lengthy

and violent criminal record” including two prior convictions for driving under the

influence. Id. at 374, 379. Although Lente states that New received a within-Guidelines

sentence, the court imposed a statutory maximum sentence that was within-Guidelines

only because the court elected to depart upward. Id. at 378-79. The district court’s

statement that it sought to impose “a sentence at the highest level that [it] could”

indicates it may well have gone higher if it possessed the authority to do so. Id.

       Many of the other involuntary manslaughter cases cited by Lente involve key

factual distinctions, including fewer deaths or lower BACs. See United States v.

Spencer, 387 F. App’x 841, 842-43 (10th Cir. 2010) (unpublished) (96-month sentence,

39 months above the Guidelines range, for defendant who killed one and severely injured

another, admitted he was drunk, and had three prior drunk-driving convictions); United

States v. Jim, 377 F. App’x 789, 790-91 (10th Cir. 2010) (unpublished) (crash killed two

passengers, defendant had BAC between .14 and .18 at time of crash, sentence of 57

months); United States v. Kathman, 490 F.3d 520, 523, 525-26 (6th Cir. 2007) (affirming

downwardly variant 20-month sentence for defendant who killed two passengers and had

estimated BAC between .097 and .133 at time of crash, based on relatively low degree of

recklessness and lack of any prior criminal conduct); United States v. Benally, No.

CR 09-0047, 2010 U.S. Dist. LEXIS 41363, at *1-3, 14 & n.4 (D.N.M. Apr. 20, 2010)
                                            -39-
(unpublished) (30-month sentence for one-death, three-injury crash; defendant consumed

at least 120 ounces of alcohol and had two driving while intoxicated convictions; all

parties agreed defendant was unlikely to re-offend); see also United States v. Bear Robe,

521 F.3d 909, 910 (8th Cir. 2008) (referencing prior 24-month sentence for involuntary

manslaughter, stating only that defendant “[w]hile intoxicated . . . led police on a high

speed pursuit, during which a passenger in the open bed of his pickup truck was ejected

and killed”).

       Most of the cases cited by Lente involving three or more deaths dealt with

defendants guilty of offenses distinct from her own. See United States v. Oba, 317 F.

App’x 698, 699-700 (9th Cir. 2009) (unpublished) (remanding 72-month sentence for

further consideration of unwarranted disparities argument after defendant’s reckless but

non-intoxicated operation of vessel led to convictions on three counts of seaman’s

manslaughter for the deaths of his passengers); United States v. Munoz-Tello, 531 F.3d

1174, 1177-81 (10th Cir. 2008) (96-month sentence for defendant convicted of four

counts of transporting an illegal alien resulting in death, no evidence of intoxication,

upward departure because the other Guidelines did not adequately account for the number

of deaths). We agree with the district court that these cases have little comparative value

because they did not involve drunk driving. See § 3553(a)(6) (requiring district courts to

consider “unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct” (emphasis added)); see also United States v.

Gardner, 905 F.2d 1432, 1436 (10th Cir. 1990) (despite need to avoid unwarranted
                                            -40-
disparities, “proportionality requires a sentencing ‘system that imposes appropriately

different sentences for criminal conduct of different severity.’” (quoting U.S.S.G. ch. 1,

pt. A, introductory cmt.)).

       The same problem is evident in United States v. Key, 599 F.3d 469 (5th Cir.

2010), upon which the government relies. There, the defendant pled guilty to

“intoxication manslaughter,” a state crime charged federally under the Assimilated

Crimes Act. Id. at 472. However, Key provides at least some basis for comparison

because the defendant’s Guidelines range was calculated using involuntary manslaughter

as the “most analogous federal sentencing guideline to the offense of conviction.” Id.

Despite a Guidelines range of only 46 to 57 months for killing another motorist while

driving under the influence of cocaine and other drugs, the court varied upward to 216

months. Id. at 472-73. The Fifth Circuit affirmed, holding that the defendant’s “extreme

recklessness, his criminal record, his rampant drug use[,] and the consequences of his acts

all support[ed]” the sentence. Id. at 475. We acknowledge that the defendant in Key

faced a lengthier statutory maximum, and had a more serious criminal history. See id. at

472.

       Perhaps the best comparator case is Fight, which is the only post-Booker13 three-


       13
          The parties make brief mention of Jones, 332 F.3d 1294, in which the defendant
was convicted of three counts of involuntary manslaughter after an alcohol-related crash
and sentenced to 71 months’ imprisonment. Id. at 1297. Working within the constraints
of the then-mandatory Guidelines, the district court imposed a seven-level upward
departure based on the significant danger to public safety caused by the defendant, his
                                                                             Continued . . .
                                           -41-
death involuntary manslaughter sentence brought to our attention. See 625 F.3d at 524.

The defendant, who had a BAC of .15 sometime after the accident, killed three strangers.

Id. Varying well above the advisory range of 77 to 96 months, the court imposed a

sentence of 231 months’ imprisonment. Id. at 524-25. As in Key, the defendant’s

criminal history was lengthier than Lente’s; his “criminal history stretche[d] over thirty

years, and many of his dozens of prior offenses [were] alcohol-related.” Id. at 526.

However, the district court placed significant focus on the three deaths, all of “innocent”

individuals. Id. at 525. And as in this case, two of the victims were minors, a point

highlighted by the Eighth Circuit’s decision affirming the sentence. Id. at 526.

       No two cases are identical. And we question whether the distinction between

victims who chose to ride with a drunk driver and those who were simply unlucky

warranted the attention devoted by the district court. But the number of deaths is

obviously an important consideration, as explained in Section II.B.1, supra, and a

defendant’s BAC is another consideration we have expressly sanctioned, see Section

II.B.2, supra. The only post-Booker involuntary manslaughter case cited to us with a

defendant responsible for as many deaths as Lente involved a sentence even higher than

the one she received.

       Moreover, the district court quoted Key’s comment that “disparity in sentencing,


extreme recklessness, and the court’s determination that “the multiple counts attributed to
the three deaths . . . [did] not contemplate the tragedy that occurred.” Id. at 1301-02
(quotation and alteration omitted).

                                            -42-
standing alone, is insufficient to render a sentence substantively unreasonable.” 599 F.3d

at 475. As the Supreme Court explained in Kimbrough, “some departures from

uniformity were a necessary cost of the remedy [the Booker Court] adopted.” 552 U.S. at

107-08. And the “advisory Guidelines combined with appellate review for

reasonableness and ongoing revision of the Guidelines in response to sentencing practices

will help to avoid excessive sentencing disparities.” Id. at 107 (quotation omitted). Our

case law requires “a district court to acknowledge a policy disagreement with [the

Guidelines] and then consider the disparity between the Guidelines treatment of []

defendant[s] . . . in light of all of the 3553(a) factors.” United States v. Lopez-Macias,

661 F.3d 485, 492-93 (10th Cir. 2011) (emphasis omitted). The district court in this case

did so thoroughly, and we conclude that the weight it placed on this particular factor was

reasonable.

                                              6

       In addition to the foregoing aggravating factors, the district court discussed several

issues urged by Lente as mitigating.

       With respect to the events leading up to the crash, we stated in Lente II that Lente

had introduced “undisputed evidence” that she and Tewahaftewa visited the home of

Elaine Jojola, where Lente’s mother, Nancy Abeita, was also visiting. 647 F.3d at 1024.

After Tewahaftewa behaved inappropriately, Jojola told him to leave, but he refused. Id.

Abeita gave Lente the keys to her car and told Lente to drive Tewahaftewa home. Id.

Following our second remand, the government submitted additional evidence suggesting
                                            -43-
that Abeita attempted to prevent Lente from driving, but allowed her to drive after Lente

became belligerent. The court ruled that it was permitted to consider this additional

evidence. It noted that the particular accounts of various witnesses differed, and that the

witnesses had motives to distort their stories. However, all of the accounts agreed that

Lente’s mother initially took the keys from her and that Lente argued with her mother

before she left. Lente herself admitted this much. Considering Lente’s criminal history,

which included numerous instances of Abeita calling the police “to address [her] drunken

behavior,” the court reasonably concluded that Lente was often willing to contest her

mother’s wishes. We agree with the district court that the decision to drive after

excessive alcohol consumption “ultimately lay with Defendant,” and thus Abeita’s

decision to hand Lente the keys did not mitigate Lente’s extreme recklessness.

         Lente also argues that the district court acted irrationally by increasing her

sentence based on the number of people killed without accounting for Tewahaftewa’s

alleged role in causing the crash. We reject Lente’s claim that the district court’s

treatment of these factors was improper. Even assuming that Tewahaftewa played some

role in causing the crash, “where more than one person’s actions contribute to an

unlawful result . . . each individual’s act is sufficient to render him culpable as a principal

for the harm caused.” United States v. Hatatley, 130 F.3d 1399, 1405-06 (10th Cir.

1997).

         In pleading guilty, Lente acknowledged that she “operate[d] [a] motor vehicle

without due caution and circumspection and in a grossly negligent manner . . . with
                                              -44-
knowledge that under the circumstances it made it reasonably foreseeable that [she]

might imperil the lives of others,” and that as a result of this action she killed three

people. We agree with the district court that Lente’s fault lies not in any particular

actions immediately before the crash, but in choosing to drive after consuming a

tremendous amount of alcohol with knowledge that her conduct could harm others.

There is nothing irrational about considering the harm caused by that decision, see Payne,

501 U.S. at 825, even if other factors contributed to the result.

       Lente also cites extensive evidence regarding the difficult circumstances of her

upbringing. She reports sexual and physical abuse as a child. Substance abuse was

rampant among those close to her. Both of Lente’s parents used drugs and alcohol.

Abeita’s boyfriend, who lived with Lente for much of her childhood, also abused drugs

and alcohol, and was killed in a car accident involving alcohol. The father of Lente’s

child committed suicide while intoxicated. Lente had a lengthy relationship with another

man who committed suicide while intoxicated. Lente herself attempted suicide twice,

once at age twelve and again while in pretrial detention. According to Dr. Elliot

Rapoport, a clinical psychologist, Lente suffers from major depressive disorder and

alcohol dependence. He testified that Lente uses alcohol in an effort to deal with her

untreated depression, and that her depressive disorder “was the underlying factor in most

of her legal difficulties.” Rapoport noted that Lente responded very well to the

counseling she received for a brief period as a teenager, which was confirmed by Lente’s

documentary record. He opined that Lente was amenable to treatment.
                                             -45-
       Lente correctly notes that “evidence of a poor upbringing or mental health

problems” can play a “crucial mitigating role.” Hooks v. Workman, 689 F.3d 1148, 1201

(10th Cir. 2012) (quotation omitted). She also argues that the district court erred by

refusing to consider her youth at the time of the offense. However, the mitigating

strength of these arguments is severely undercut by Lente’s post-conviction conduct. As

described in Section II.B.4, supra, Lente’s substance abuse continued during her

incarceration despite the availability of programs to address this problem. Dr. Rapoport

concluded in a supplemental report that Lente had not engaged in treatment because her

“depression, drug abuse-related difficulties, as well as her need to simply adjust to the

prison environment has been the primary focus of her limited psychological energy.” But

he acknowledged that it was “unlikely that [Lente] will show much in the way of

improvement” until she “is no longer abusing pain medication.”

       Evidence of childhood trauma, psychological issues, or youthful indiscretion is

most powerful when accompanied by signs of recovery. In Gall, for example, the Court

stressed “the dramatic contrast” between the defendant’s immature behavior at the time

he committed the crime at issue and his rehabilitation since then. 552 U.S. at 58; see also

id. at 41-45. But Lente was twenty-two years old at the time of the offense and twenty-

nine at the time of the most recent sentencing proceeding, and has done little to show that

she is seeking to correct her problematic behavior. The district court expressly

considered Dr. Rapoport’s opinion, but it relied instead on Lente’s post-conviction

conduct in finding that she was likely to reoffend. We have previously recognized, albeit
                                            -46-
in a very different context, that otherwise mitigating evidence may be “double-edged”

because it can also indicate a likelihood of recidivism. See Davis v. Exec. Dir. of Dep’t

of Corr., 100 F.3d 750, 763 (10th Cir. 1996) (jury may have reacted negatively to

evidence of defendant’s severe alcoholism by faulting him for “repeated failures to

effectively address” the problem); see also Bryan v. Mullin, 35 F.3d 1207, 1223-24 (10th

Cir. 2003) (en banc) (some evidence of psychiatric issues may suggest the defendant is a

continuing threat to society).

       None of this should suggest that Lente is beyond hope of recovery. The district

court recommended to the Bureau of Prisons that Lente be provided mental health and

substance abuse treatment while serving her sentence. We too express our sincere hope

that she obtains the treatment she needs. However, we cannot say that the district court

abused its discretion in granting limited import to Lente’s mitigating evidence in light of

the entire record.

                                              7

       Although we have discussed the issues considered by the district court

individually, we stress that sentencing courts “should engage in a holistic inquiry of the

§ 3553(a) factors.” Lopez-Macias, 661 F.3d at 492 (quotation omitted). The large

variance under review demands our careful scrutiny of each of the relevant sentencing

factors, see Gall, 552 U.S. at 51, but in conducting “substantive reasonableness review”

we look “broadly . . . to whether the district court abused its discretion in weighing

permissible § 3553(a) factors in light of the totality of the circumstances,” Sayad, 589
                                            -47-
F.3d at 1118 (quotation omitted).

       We ultimately conclude that the district court’s decision was at least within the

“range of possible outcomes” that the circumstances “fairly support,” United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007), but not without some pause. The

district court based its sentencing decision in large measure on its disagreement with the

Guidelines’ treatment of multiple-death involuntary manslaughter sentences. Although

we hold that the district court was at least reasonable in ruling that five to six months was

an insufficient marginal increase in punishment to account for each of the additional

victims, we are concerned that this type of disagreement could lead to widely disparate

sentences. If one judge reasonably concludes that the harm caused in a drunk-driving

crash deserves primary attention, while another judge reasonably concludes that mens rea

is paramount, we are presented with the untenable situation of defendants facing

enormously disparate sentences based solely on the identity of the sentencing judge.

       Despite this concern, we are persuaded that the district court’s sentencing

decisions were well-founded. The district court relied on Lente’s underrepresented

criminal history, her excessive recklessness, and her post-conviction conduct in

fashioning an individualized sentence. And rather than expressing wide-ranging

conceptual disagreement with the Guidelines, the district court focused on the

exceedingly rare application of the multiple-count rules to multiple-fatality involuntary

manslaughter cases. As described in Section II.B.1, supra, the sentencing judge was not

the first to question the propriety of those rules in such cases. Kimbrough emphasized
                                            -48-
that limiting sentencing disparities requires an iterative process in which sentencing

courts, appellate panels, and the Sentencing Commission respond to each other. See 552

U.S. at 107-08; see also Rita, 551 U.S. at 348 (“[T]he sentencing statutes envision both

the sentencing judge and the Commission as carrying out the same basic § 3553(a)

objectives, the one, at retail, the other at wholesale.”).

       We also underscore the important role of the extensive record created in this case.

In United States v. Friedman, 554 F.3d 1301 (10th Cir. 2009), we explained that “the

undeniably sparse record . . . certainly b[ore] on the question whether Friedman’s

sentence [was] substantively reasonable.” Id. at 1308 n.10; see also id. at 1309 (“[T]here

is simply nothing in the record regarding Friedman’s personal characteristics indicating

leniency of the magnitude granted by the district court in this case was appropriate.”).

Similarly, in Lente I, Judge Holmes noted that “[t]he district court created a ‘sparse

record’ in justifying the major-variance sentence that it gave to Ms. Lente and that must

necessarily ‘bear[] on the question’ of whether that sentence is substantively reasonable.”

323 F. App’x at 706 (Holmes, J., concurring) (quoting Friedman, 554 F.3d at 1308 n.10).

       In sharp contrast, the parties in the present appeal created the type of record we

expect to see when reviewing a sentence far outside the advisory Guidelines range. The

district court considered comparative data regarding the degree of Lente’s recklessness,

detailed background concerning her criminal history, and extensive evidence regarding

her post-conviction behavior. And it conducted a thorough survey of sentences entered

by other federal courts for similar conduct. We recognize that the district court imposed
                                              -49-
a very lengthy sentence in this case, and that “appellate review continues to have an

important role to play and must not be regarded as a rubber stamp,” Pinson, 542 F.3d at

836. In view of the record as a whole, and considering all of the circumstances

presented, we conclude that the sentence imposed was substantively reasonable.

                                            III

       AFFIRMED.




                                           -50-
