               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0643n.06

                                          No. 08-5293                                FILED
                                                                                 Sep 16, 2009
                             UNITED STATES COURT OF APPEALS                 LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )     ON APPEAL FROM THE
       Plaintiff-Appellee,                                )     UNITED STATES DISTRICT
                                                          )     COURT FOR THE MIDDLE
v.                                                        )     DISTRICT OF TENNESSEE
                                                          )
CHRISTOPHER L. SIMPSON,                                   )                       OPINION
                                                          )
       Defendant-Appellant.                               )




BEFORE:       COLE, CLAY, and KETHLEDGE, Circuit Judges.

       COLE, Circuit Judge. Christopher L. Simpson appeals the district court’s judgment

sentencing him to 84 months of imprisonment after he pleaded guilty to one count of possessing

a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and one count

of possessing a firearm after being convicted of the misdemeanor offense of domestic violence

in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). On appeal, Simpson argues that the

sentence imposed was procedurally and substantively unreasonable. For the reasons that follow,

we conclude that the district court committed procedural error, and we VACATE Simpson’s

sentence and REMAND for resentencing.




                                               1
No. 08-5293
United States v. Simpson

                                     I. BACKGROUND

       A.     Procedural history

       Simpson pleaded guilty to one count of possessing a firearm as a convicted felon in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and one count of possessing a firearm after

being convicted of the misdemeanor offense of domestic violence in violation of 18 U.S.C. §§

922(g)(9) and 924(a)(2). On September 10, 2007, the district court held a sentencing hearing

and imposed a sentence of 84 months of imprisonment on each count, to run concurrently, and

three years of supervised release on each count, also to run concurrently. The court filed its

judgment on February 14, 2008, and Simpson timely appealed.

       B.     Substantive facts

       After Simpson pleaded guilty, the United States Probation and Pretrial Services

department prepared a Presentence Investigation Report in which it calculated Simpson’s

advisory sentencing range under the United States Sentencing Guidelines (the “Guidelines”) to

be 92 to 115 months’ imprisonment. Simpson filed a sentencing position statement and a

sentencing memorandum in which he requested a sentence significantly below the advisory

Guidelines range based on emotional and physical abuse he suffered as a child, the lack of adult

male role models in his formative years, and the severe handicap of his infant son.         The

Government opposed a departure or variance and requested a sentence within the advisory

Guidelines range. The district court concluded that Simpson’s difficult childhood was “extreme”

and “extraordinary” and applied a one-level downward departure under Guidelines § 5K2.0.




                                               2
No. 08-5293
United States v. Simpson

(R.42, Sent’g Tr. 178-79, 185.)1 This resulted in a new Guidelines range of 84 to 105 months,

and the district court sentenced Simpson to 84 months of imprisonment on each of the two

counts, to run concurrently, and three years of supervised release.

                                         II. ANALYSIS

       A.      Standard of review

       We review sentences for reasonableness under an abuse-of-discretion standard. See Gall

v. United States, 128 S. Ct. 586, 594 (2007); United States v. Booker, 543 U.S. 220, 260-61

(2005); United States v. Sedore, 512 F.3d 819, 822 (6th Cir. 2008). Reasonableness in this

context has both procedural and substantive components. Sedore, 512 F.3d at 822.

       A district court commits procedural error and abuses its sentencing discretion by:

       failing to calculate (or improperly calculating) the Guidelines range, treating the
       Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts, or failing to adequately
       explain the chosen sentence—including an explanation for any deviation from the
       Guidelines range.

Gall, 128 S. Ct. at 597. Under 18 U.S.C. § 3553(a), a sentencing court must consider:

       (1) the nature and circumstances of the offense and the history and characteristics
       of the defendant;
       (2) the need for the sentence imposed--
               (A) to reflect the seriousness of the offense, to promote respect for
               the law, and to provide just punishment for the offense;
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant; and
               (D) to provide the defendant with needed educational or vocational
               training, medical care, or other correctional treatment in the most
               effective manner; . . . .


       1
          “R.__” refers to the district court docket entry number of documents available
electronically through the district court docket report.

                                                 3
No. 08-5293
United States v. Simpson


18 U.S.C. § 3553(a)(1)-(2).

       A reviewing court must also consider the substantive reasonableness of the sentence.

Gall, 128 S. Ct. at 597. A sentence may be substantively unreasonable if the sentencing court

“select[ed] the sentence arbitrarily, bas[ed] the sentence on impermissible factors, . . . or [gave]

an unreasonable amount of weight to any pertinent factor.” United States v. Ferguson, 456 F.3d

660, 664 (6th Cir. 2006) (quotation marks omitted). However, the “touchstone” of substantive

reasonableness is “whether the length of the sentence is reasonable in light of the § 3553(a)

factors.” United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). This Court grants a

rebuttable presumption of substantive reasonableness to sentences within the advisory

Guidelines range. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); see also Rita v.

United States, 551 U.S. 338, 354 (2007) (permitting courts of appeals to adopt such a

presumption).

       Although Simpson did not raise an objection at sentencing asserting the claim he now

makes on appeal, plain-error review does not apply in this case. While we typically review

claims of procedural unreasonableness for plain error unless they were preserved by an objection

at sentencing, see United States v. Vonner, 516 F.3d 382, 385-86, 390-91 (6th Cir. 2008) (en

banc), we have not followed this course when considering claims that the sentencing court

misunderstood the scope of its authority in light of recent changes in the law of sentencing. See

United States v. Herrera-Zuniga, 571 F.3d 568, 579-81 (6th Cir. 2009) (holding that plain-error

review did not apply to claim that the district court misunderstood the scope of its sentencing

authority, even when the defendant failed to object at sentencing); see also United States v.

                                                 4
No. 08-5293
United States v. Simpson

Guest, 564 F.3d 777, 779 (2009) (examining whether a trial court understood its authority to

vary from the crack cocaine Guidelines without applying plain-error review); United States v.

Johnson, 553 F.3d 990, 995-96 (6th Cir. 2009) (same). In Herrera-Zuniga, we determined that

       it would be inappropriate to apply Vonner’s forfeiture rule to . . . Herrera-
       Zuniga’s claim that the district court lacked the authority to categorically reject
       the [applicable] base offense level prescribed under [the Guidelines] given the
       lingering confusion in the circuit as to whether such claims are “procedural” or
       “substantive” challenges.

Herrera-Zuniga, 571 F.3d at 579. We also noted that the Vonner rule is a court-developed rule

that “was adopted entirely for practical reasons” and that Vonner “expressly encouraged ‘a

common-sense application of the plain-error doctrine,’ and instructed future courts to apply the

rule ‘with an eye to the realities of the facts and circumstances of each sentencing proceeding.’”

Id. at 580 (quoting Vonner, 516 F.3d at 391).

       As in Herrera-Zuniga, the issue before us is whether the district court correctly

understood the scope of its authority to reject the Guidelines. Simpson raises this as both a

procedural and a substantive claim, but we conclude that it is appropriately framed as a

procedural-unreasonableness claim. See Gall, 128 S. Ct. at 597 (stating that a district court

commits procedural error when it “treat[s] the Guidelines as mandatory”). Simpson’s confusion

about how to frame his claim is understandable given the “overlap” between procedural and

substantive reasonableness considerations, an area of law that this Court has continued to clarify

in recent years. See Herrera-Zuniga, 571 F.3d at 579-80. Rather than penalize Simpson for his

failure to recognize his claim as a procedural one, we will not apply Vonner’s forfeiture rule

here. See id. at 579-81. Accordingly, despite the fact Simpson did not object below, we will


                                                5
No. 08-5293
United States v. Simpson

review his claim under the normal abuse-of-discretion standard. See Gall, 128 S. Ct. at 591;

Herrera-Zuniga, 571 F.3d at 581.

       Additionally, in cases in which an appellant claims that the sentencing court

misunderstood its authority, we will only remand based upon an “indication of error in the

record,” not upon “mere conjecture” that the court felt improperly constrained. Guest, 564 F.3d

at 779, 781. The record in this case indicates an error in the district court’s understanding of its

authority to vary from the Guidelines.

B.     The district court’s misunderstanding of its authority prevented it from considering
       Simpson’s request for a variance

       Simpson argues that his sentence was procedurally unreasonable because the district

court treated the Guidelines’ restrictions on departures as mandatory and did not recognize its

authority to vary outside of the Guidelines range. In his sentencing position statement and

sentencing memorandum he requested both a departure and a variance based on a number of

mitigating factors and emphasized that the district court had discretion to vary below the

advisory range based on factors prohibited or discouraged by the Guidelines’ discussion of

departures. Simpson claims that the district court ignored his request for a variance and only

considered whether he was entitled to a departure under § 5K2.0 of the Guidelines.

       We have stated that the actual terminology used by a court when imposing a sentence is

not critical. See Herrera-Zuniga, 571 F.3d at 586 (explaining that this Court has “not required

that district courts carefully distinguish between whether the decision to deviate from the




                                                 6
No. 08-5293
United States v. Simpson

advisory Guidelines range is based on a departure or variance.”).2 The salient issue is whether

the sentencing court recognized the advisory nature of the Guidelines and its full authority to

impose a sentence outside the Guidelines range. See Gall, 128 S. Ct. at 596-97 (requiring judge

to “consider all of the § 3553(a) factors to determine whether they support the sentence

requested by a party,” to “make an individualized assessment based on the facts presented,” and

to refrain from presuming that the Guidelines range is reasonable or treating the Guidelines as

mandatory); United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir. 2008) (explaining that a

sentencing court has different, broader authority to vary from the suggested Guidelines range

based on the § 3553(a) factors than to depart from it based on § 5 of the Guidelines).

       In this case, the district court began its pronouncement of sentence by noting, “[b]efore I

state the sentence, the Court has considered the defendant’s motion for downward departure

based primarily on his background and circumstances.” (R.43, Sent’g Tr. 176.) The court then

discussed Simpson’s troubled upbringing and family circumstances, stating:

       [T]he family ties and responsibilities is a category that’s recognized in the
       guidelines, as well as his other responsibilities. I mean his background and
       upbringing can be considered.

              All of these must exist to [sic] an extraordinary way. The guidelines say
       that neither of these matters should ordinarily be considered by the Court,


       2
          “A Guidelines ‘departure’ refers to the imposition of a sentence outside the advisory range
or an assignment of a criminal history category different than the otherwise applicable category .
. . result[ing] from the district court’s application of a particular Guidelines provision, such as
§ 4A1.3 or § 5 part K.” United States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009). “A ‘variance’
refers to the selection of a sentence outside of the advisory Guidelines range based upon the district
court’s weighing of one or more of the sentencing factors of § 3553(a).” Id. at 686-87. “While the
same facts and analyses can, at times, be used to justify both a Guidelines departure and a variance,
the concepts are distinct.” Id. at 687.

                                                  7
No. 08-5293
United States v. Simpson

       however, in departing downward. They, of course, can be considered in
       determining where in the guidelines range the defendant should be sentenced.

(Id. at 177 (emphasis added).) The court explained that it was “moved by the report of the

defendant’s upbringing,” that it believed that it was “an extraordinary circumstance” that took

the case “out of the heartland of cases,” and that it would grant a one-level downward departure

based upon this factor. (Id. at 178-79.) Thereafter, the Court stated that “[c]ontrary to the

request of the Government, I’m going to sentence Mr. Simpson to the low end of the guidelines

range” and stated that it believed the sentence would be “just, but not greater than necessary to

meet the sentencing goals in the case.” (Id. at 180.) Other than brief statements at the end of the

sentencing hearing, the district court made little reference to the factors set forth in 18 U.S.C. §

3553(a) or the advisory nature of the Guidelines, although it noted that “[t]he Guidelines are not

mandatory, of course. They’re simply advisory.” (R.43, Sent’g Tr. 186.)

       The district court also prepared a statement of reasons (“STR”) that further explained the

sentence imposed. (R.48, STR 1-5.) After summarizing the mitigating circumstances presented

by Simpson, the court stated:

       Defendant’s reasons for requesting a downward departure are factors not
       ordinarily relevant in considering a motion for downward departure, and, in fact,
       departures for the reasons requested herein are disfavored. However, such factors
       may be considered if they exist in an extraordinary way. Having considered
       Defendant’s unfortunate upbringing by his mother . . . the Court finds
       circumstances are present to an unusual degree and are so extreme as to make this
       case extraordinary.

(Id. at 5.) The court used this analysis to justify a one-level Guidelines departure. The court

then concluded its STR with a brief discussion of the factors set forth in 18 U.S.C. § 3553(a).



                                                 8
No. 08-5293
United States v. Simpson

       Both at sentencing and in the STR, the court followed the same model of (1) calculating

the Guidelines range; (2) determining if any of the mitigating factors presented “extraordinary

circumstances” sufficient to justify a Guidelines departure; and (3) determining what sentence

within the relevant range was justified in light of the factors set forth in § 3553(a). This

approach is impermissible for several reasons.

       First, the court proceeded as if the Guidelines restrictions on departures are mandatory,

and as if the § 3553(a) factors are only relevant if they rise to the level of “exceptional”

circumstances as stated in § 5 of the Guidelines. See U.S.S.G. § 5K2.0 (departures based on

offender characteristics are only warranted if the characteristic is “present to an exceptional

degree”). This approach was erroneous because mitigating factors—even those that are not

“exceptional” or “extraordinary”—are proper considerations in determining whether a sentence

should fall outside of the Guidelines range. See Grams, 566 F.3d at 686-87 (discussing the

court’s authority to select “a sentence outside of the advisory Guidelines range based upon the . .

. weighing of one or more of the sentencing factors of § 3553(a)”); see also United States v.

Henry, 545 F.3d 367, 385 (6th Cir. 2008) (“Gall rejects the notion . . . that extraordinary

circumstances are required ‘to justify a sentence outside the Guidelines range.’”) (quoting Gall,

128 S. Ct. at 595).

       This mistake significantly affected the sentencing court’s understanding of its authority

because “‘variances from Guidelines ranges that a District Court may find justified under the

sentencing factors set forth in 18 U.S.C. § 3553(a)’ include a much broader range of

discretionary decisionmaking” than departures. Stephens, 549 F.3d at 466-67 (emphasis added)


                                                 9
No. 08-5293
United States v. Simpson

(quoting Irizarry v. United States, 128 S. Ct. 2198, 2202-03 (2008)); United States v. Davis, 537

F.3d 611, 617 (6th Cir. 2008) (“[A] trial judge’s authority to exercise independent judgment in

granting a variance after applying the § 3553(a) factors differs from his authority to grant

departures.”); see also United States v. Buchanan, 449 F.3d 731, 740 (6th Cir. 2006) (Sutton, J.,

concurring) (“[T]he guidelines’ restrictions on granting departures do not circumscribe a trial

court’s decision to grant a [§ 3553(a)] variance”). The district court’s statements indicate that it

felt “bound by the pre-Gall standard of review” and the Guidelines’ restrictions on departures

that require extraordinary or exceptional circumstances to justify a below-Guidelines sentence.

See Guest, 564 F.3d at 780. As a result, the court dismissed some of Simpson’s mitigation

evidence as unworthy of consideration when, in fact, the court was required to consider that

evidence. See Gall, 128 S. Ct. at 596-97.

       Second, both the sentencing hearing transcript and STR make clear that the court

considered the relevant § 3553(a) factors in the context of deciding what sentence within the

advisory Guidelines range was appropriate. (R.43, Sent’g Tr. 177 (“All of these [mitigating

factors] must exist to [sic] an extraordinary way. The guidelines say that neither of these matters

should ordinarily be considered by the Court, however, in departing downward. They, of course,

can be considered in determining where in the guidelines range the defendant should be

sentenced.”); R.48, STR 6 (“The Court has discussed some of the relevant factors which the

Court considered in determining the appropriate sentence within the guideline range, including

the nature and circumstances of the offense, as well as the history and characteristics of the

Defendant.”) (emphasis added).) As explained above, a sentencing court errs if it limits its


                                                10
No. 08-5293
United States v. Simpson

consideration of the § 3553(a) factors to where within the Guidelines range to impose the

sentence.

        Third, the court’s repeated references to Simpson’s “request for a downward departure”

and its failure to acknowledge Simpson’s request for a variance support the view that the district

court misunderstood its authority to vary from the Guidelines range, rather than merely to grant a

Guidelines departure.      To be sure, the sentencing court was not required to use the term

“variance” when addressing Simpson’s arguments, and its failure to do so is not error per se. See

Herrera-Zuniga, 571 F.3d at 586-87. However, the court’s failure to acknowledge Simpson’s

request for a variance, in the context of the other statements it made, suggests that it did not

recognize its authority to vary from the Guidelines absent extraordinary circumstances. See

Stephens, 549 F.3d at 466-67 (finding it “particularly troubling” that the court “followed defense

counsel’s lead and used the term ‘departure’ exclusively in rejecting [defendant’s]

arguments . . . .”).

        The Government argues that the district court properly understood the scope of its

authority for several reasons. First, the court referenced the advisory nature of the Guidelines

several times. (R.43, Sent’g Tr. 186 (“The Guidelines are not mandatory, of course. They’re

simply advisory.”); R.48, STR 4 (“[T]he Supreme Court made clear that the guidelines

promulgated by the United States Sentencing Commission are merely advisory.”).) While these

statements support the Government’s argument when considered in isolation, the substance and

structure of the district court’s analysis show that it effectively treated the Guidelines’ limitations

on departures as mandatory. The Government notes that the district court discussed the § 3553(a)


                                                  11
No. 08-5293
United States v. Simpson

factors, stating in the STR that it had “considered all the factors set forth in 18 U.S.C. § 3553(a)”

and concluded that “[b]ased on the facts and circumstances in this case, . . . the sentence imposed

[would] be just punishment for this particular offense and . . . in the best interest of the public.”

(Id. at 5-6.) This argument fails because, as discussed above, the record indicates that the court

considered the § 3553(a) factors for the improperly narrow purpose of deciding what sentence

within the advisory Guidelines range was appropriate. Finally, the district court also explained

during the sentencing hearing that it would only grant a one-level Guidelines departure because

Simpson has an extensive criminal history—a history that the court described at length in both the

sentencing hearing and STR. This cannot be construed as indicating that the court recognized its

broad authority to vary from the Guidelines range rather than merely to depart from it based on

exceptional circumstances. While we recognize that the concepts of variances and departures

have sometimes blurred in recent years, and while this district court has considerable experience

in administering sentences in the post-Booker era, the rationale set forth on the record is in

conflict with our recent precedent, and we must grant Simpson’s request for a remand.

                                       III. CONCLUSION

       For the reasons stated above, we conclude that the district court committed procedural

error. Therefore, we VACATE Simpson’s sentence and REMAND for resentencing to allow the

court to consider Simpson’s mitigation arguments with full recognition of its authority to vary

from the Guidelines range.




                                                 12
No. 08-5293
United States v. Simpson

       KETHLEDGE, Circuit Judge, dissenting. Our task in this appeal would have been

greatly simplified, if not eliminated entirely, had Simpson merely told to the district court what he

tells us now—namely, that the district court failed to consider his request for a variance. That is a

good indication that plain-error review ought to apply here. And I think our caselaw, notably

United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc), bears out that indication. The

majority declines to apply Vonner, suggesting there is sufficient confusion regarding the nature of

Simpson’s claim (i.e., whether it is substantive or procedural) that we should apply the narrow

exception to Vonner set forth in United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009). I

do not agree that there can plausibly be any such confusion. Simpson’s claim is that the district

court failed altogether to consider his claim for a variance.           That claim is quintessentially

procedural, which brings it within the heartland of Vonner, and which in turn makes the claim

subject to plain-error review. I do agree with the majority that the district court erred by failing

separately to consider Simpson’s request for a variance; but under the circumstances present here,

I do not think the error was plain. I therefore respectfully dissent.




                                                  13
