                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0115p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 07-1252
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 ROY STEPHEN RECLA,
                                                 -
                                                N
                   Appeal from the United States District Court
                for the Western District of Michigan at Marquette.
               No. 06-00029—Robert Holmes Bell, District Judge.
                               Submitted: January 21, 2009
                           Decided and Filed: March 25, 2009
              Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

                                   _________________

                                        COUNSEL
ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. Maarten Vermaat, ASSISTANT UNITED STATES ATTORNEY,
Marquette, Michigan, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        CLAY, Circuit Judge. Defendant, Roy Stephen Recla, appeals the sentence of the
district court imposed following his plea of guilty to one count of intentionally and
unlawfully conspiring to distribute and to possess with intent to distribute oxycodone in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Recla contends that, in imposing
sentence, the district court improperly considered the possibility that his sentence would be
reduced by a future Rule 35(b) motion. Recla also argues that his sentence is procedurally
unreasonable because the district court failed to consider his argument that the court should



                                             1
No. 07-1252               United States v. Recla                                        Page 2


reduce his sentence to account for the time he spent in state custody. Finally, Recla asserts
that his sentence is “too severe” and, thus, substantively unreasonable because his sentence
would have been lower had the district court properly evaluated his arguments. For the
reasons set forth below, we VACATE Recla’s sentence and REMAND for resentencing.

                                      BACKGROUND

        On October 10, 2006, the United States charged Recla with knowingly, intentionally,
and unlawfully conspiring to distribute and to possess with intent to distribute oxycodone,
a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(C). The charges stem from a series of investigations by state and federal
authorities related to Recla’s possession of firearms, illegal drug use, and diversion of
prescription narcotics.

        In 2004, Michigan state authorities received information that Recla, a convicted
felon, possessed numerous firearms. The Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) became involved in the investigation, and discovered that Recla owned several
firearms, and regularly used them for hunting and other activities. The investigation also
revealed that Recla, who legally could not purchase firearms, enlisted family and friends to
obtain the firearms on his behalf.

        Beginning in 2003, Recla was the target of an investigation by the Drug Enforcement
Administration (“DEA”) regarding his excessive prescriptions for narcotic pain medication.
State authorities also began investigating Recla’s drug use after state police arrested Recla
and his girlfriend, Lisa Marie Makela, for erratic driving in May of 2005 and discovered
spoons with drug residue in the car. At an interview following his arrest, Recla admitted he
had recently used cocaine.

        The next day, Recla was released from custody on bond. Police officers agreed to
Recla’s request that the officers drive him home, and also stop at a pharmacy so that he could
pick up his prescription for oxycodone. After obtaining his prescription, he took two pills
while in the car with the officers. During the drive, he disclosed that he kept a firearm at his
father’s house, and also told the officers that Makela had used heroin the day police arrested
them for erratic driving. When he and the officers arrived at his house, Recla invited the
officers inside. He then informed them that Makela had pawned several of his firearms,
No. 07-1252             United States v. Recla                                         Page 3


offering proof of these transactions by showing officers the pawn slips. At the end of the
conversation, Recla, in an apparent attempt to avoid jail time, volunteered to become an
informant for the state’s drug investigation unit.

        Two days later, on May 13, 2005, Recla and Makela agreed to speak with state drug
enforcement authorities. During the interview, Recla and Makela disclosed their illegal use
of heroin and oxycodone, as well as their extensive network of drug dealers. Recla named
numerous sources of narcotics, and admitted that he supported himself through money he
received in exchange for the sale of prescription oxycodone pills.

        The DEA interviewed Recla on May 26, 2005, and learned that Recla began seeing
his doctor in early 2001 for pain following knee-replacement surgery. Over the next four
years, Recla visited his doctor on a monthly basis to request a new prescription for
oxycodone, each time reporting that his medication was lost or stolen.

        Based on their investigation, on June 14, 2006, state authorities charged Recla with
possession of heroin, possession of a firearm by a felon, and use of heroin in violation of
numerous Michigan laws. While Recla awaited trial on state charges, the government
brought federal charges for possession and possession with intent to distribute oxycodone
in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). On October 26, 2006, state
authorities transferred Recla to federal custody.

        Recla pleaded guilty to the federal charges on October 26, 2006. Pursuant to the plea
agreement negotiated in September of 2006, state authorities agreed not to initiate further
prosecution for firearm possession and drug trafficking, and to dismiss the pending charges
related to possession and use of heroin and firearm possession by a felon. The government
stipulated that it also would drop its prosecution for firearm and drug possession. In
exchange, Recla agreed to provide information regarding his drug-trafficking activities and
to assist the government with its prosecution of individuals involved in the drug transactions.
The government agreed that, based on Recla’s assistance, it would consider filing a motion
to reduce Recla’s sentence pursuant to either § 5K1.1 of the Guidelines or Rule 35(b) of the
Federal Rules of Criminal Procedure.

        After Recla pleaded guilty, the Probation Department prepared a presentence
investigative report (“PSR”). The PSR calculated Recla’s base offense level at 26, and
No. 07-1252               United States v. Recla                                       Page 4


added two levels for possession of firearms. Based on Recla’s written statement accepting
responsibility and apologizing for his actions, the PSR recommended that Recla’s offense
level be decreased by two. The PSR also reduced Recla’s offense level by one for his timely
guilty plea, resulting in a total offense level of 25. After calculating Recla’s offense level,
the PSR determined his criminal history category. Although Recla had an extensive criminal
record, the PSR assigned him to criminal history category I because most of his illegal
activities “were . . . no longer scored [for purposes of computing criminal history].” (J.A.
56.) Under the Guidelines, Recla’s criminal history category and offense level supported a
sentencing range of fifty-seven to seventy-one months imprisonment. Pursuant to 21 U.S.C.
§ 841(b)(1)(C), Recla’s offense was subject to a maximum term of imprisonment of twenty
years.

         Prior to the sentencing hearing, Recla filed a sentencing memorandum requesting
that the district court “impose a sentence consistent with the factors outlined in 18 U.S.C.
§ 3553(a) and the . . . United States Sentencing Guidelines.” (J.A. 32) (emphasis removed).
The memorandum also urged consideration of several mitigating factors in imposing
sentence.    Recla’s primary argument was that his “persistent mental health issues,
. . . historical use of almost every available form of illegal controlled substance, and
. . . inability to maintain employment” resulted from a 1974 hunting accident in which Recla
shattered his right femur, an injury that required Recla to take prescription pain medication.
(J.A. 29.) (The prescription for oxycodone following Recla’s knee-replacement surgery was
unrelated to the hunting accident.) The memorandum emphasized Recla’s acceptance of
responsibility and request for drug treatment and counseling so that he could “move on from
[his] past.” (J.A. 30.)

         In addition, the memorandum disputed the PSR’s suggestion that the court consider
departing upward from the Guidelines range. Recla argued that any prison sentence within
the Guidelines range would have the desired deterrent effect because Recla never had spent
more than one year in prison for previous convictions. Recla also repeated an objection he
made to the PSR’s sentence enhancement for possession of firearms, arguing that there was
no evidence that the guns were “present” during the drug-trafficking activities since Recla
stored the guns at his parents’ home. Finally, Recla urged the sentencing court to consider
No. 07-1252             United States v. Recla                                        Page 5


reducing the sentence imposed by the time he spent in state custody prior to his transfer to
federal custody.

        On February 15, 2007, the district court held the sentencing hearing. At the hearing,
Recla withdrew his objection to the two-point addition for firearm possession. Neither party
objected to the PSR’s calculation of Recla’s criminal history category or total offense level.
At the hearing, defense counsel emphasized Recla’s cooperation with the government’s
prosecution of individuals involved in drug trafficking, including Recla’s testimony before
a grand jury. In addition, defense counsel requested that the court consider placing Recla
at a Wisconsin prison so that he could be available to assist the government in future
investigations. The government did not express a position regarding Recla’s cooperation,
noting that it would be “left for another day” and that the government was “considering a
post-sentencing Rule 35 motion based on future cooperation.” (J.A. 50) (emphasis added).

        As in the sentencing memorandum, defense counsel’s primary argument during the
sentencing hearing was that Recla became addicted to pain medication following a hunting
accident and developed a tolerance, requiring him to take increasing doses of narcotics and
to resort to illegal drugs as a substitute for his medication. Defense counsel asked the court
to consider requiring counseling for Recla to assist him in moving past his drug problems.
Defense counsel also emphasized that any term of imprisonment exceeding one year would
fulfill the purpose of providing deterrence, and that any additional time imposed through an
upward departure from the Guidelines would not have a corresponding deterrent effect.
Finally, defense counsel noted that much of the time Recla spent in state custody was for the
benefit of the federal investigation, and asked the court to consider reducing Recla’s
sentence to take into account the time he served in state prison. Recla also made a statement
to the court, asking for a “break in sentencing” so that he could better himself and receive
counseling.

        Following these arguments, the district court announced sentence. First, the district
court expressed its view that Recla’s “prior lawlessness is not clearly represented by his
criminal history score due to the way th[e] Guidelines Commission scores it.” (J.A. 56.)
The district court then sentenced Recla as follows:
No. 07-1252              United States v. Recla                                             Page 6


                 . . . I find that under 3553(a), . . . Mr. Recla’s pattern of conduct
        demonstrates a lack of respect for law and need to protect the public. He
        appears to feel that he’s a law unto himself with utter disregard for the
        serious strains such conduct places on the medical care system which is
        financially strapped in his rural area, on local law enforcement, local service
        agencies striving to cope with the addiction problems that he’s contributed
        to.
                 It seems to this Court that the nature and circumstances of this
        offense is of some duration. The history and characteristics of this defendant
        is that he really hasn’t helped himself or anybody else in this process.
                 This is a serious offense. It plagues his community and demonstrates
        his marked lack of respect for law. The public needs to be protected and Mr.
        Recla needs to be provided with medical, educational, and correctional
        treatment.
                 It will be the sentence of this Court based upon the entire review of
        the presentence report, the entire review of the fine sentencing report, the
        entire review of the guilty plea, that a 70-month sentence in the Federal
        Bureau of Prisons will be imposed with the understanding that there
        probably will be subsequent motions filed subsequently [sic], with four
        recommendations to the Bureau of Prisons.
                 One is that Mr. Recla receive substance abuse evaluation and that his
        complained-of medical condition be evaluated for purposes of receiving
        appropriate care and appropriate pain treatment . . . .
                 Secondly, I want Mr. Recla to receive some mental health evaluation
        subsequent to the medical evaluation.
                 Thirdly, I want Mr. Recla to secure his GED certificate. . . .
                 And lastly, the Court would find that if it is at all possible for Mr.
        Recla to be placed in [] Oxford, Wisconsin . . . , that that be a potential place
        where he may be placed. . . .
                 Thereafter, Mr. Recla will be placed on three years of supervised
        release . . . .

(J.A. 58-60.)

        The district court then explained its reasons for rejecting the “hunting accident”
explanation. The judge stated that he could not “quite buy the hunting accident when he was
a teenager giving rise to his helplessness as a result of drug addiction. That is too simplistic
and it just defies imagination.” (J.A. 56.) The district court further noted that Recla’s
extensive injuries as a teenager “bear[] no excuse” for his criminal conduct or continued use
of illegal substances. (J.A. 57.) The district court indicated that it did not “know of any
legitimate way a person can say, I’m in pain all the time . . . . . [so] I have to illegally use
drugs in order to get by. That makes no sense.” (Id.)
No. 07-1252             United States v. Recla                                        Page 7


        On February 16, 2007, the district court entered its judgment sentencing Recla to
seventy months of imprisonment. Recla timely appealed.

                                      DISCUSSION

I.      REFERENCE TO FUTURE SENTENCING REDUCTION

        A.      Standard of Review

        Both the government and Recla suggest that the district court’s alleged consideration
of a potential Rule 35(b) motion presents a procedural reasonableness issue. However, it is
not clear that Recla’s challenge is to the procedural reasonableness of his sentence. In
allegedly considering a factor that has no relation to the § 3553(a) factors—a possible post-
sentencing motion to reduce Recla’s sentence—the district court might have misapplied
§ 3553(a), as “it is clear that a ‘sentence based on an improper factor fails to achieve the
purposes of § 3553(a) and may be unreasonable regardless of length.’” United States v.
Malone, 503 F.3d 481, 484 (6th Cir. 2007) (quoting United States v. Williams, 456 F.3d
1353, 1361 (11th Cir. 2006)). Regardless of the nature of Recla’s challenge, however, we
review his sentence for reasonableness. See Gall v. United States, ___ U.S. ___, 128 S. Ct.
586, 597 (2007).

        B.      Analysis

        During the sentencing hearing, the government indicated that any sentence reduction
would occur pursuant to a “post-sentencing Rule 35 motion based on future cooperation.”
(J.A. 50.) Rule 35(b) of the Federal Rules of Criminal Procedure provides that, “[u]pon the
government’s motion made within one year of sentencing, the court may reduce a sentence
if the defendant, after sentencing, provided substantial assistance in investigating or
prosecuting another person.” Fed. R. Crim. P. 35(b)(1). Thus, Rule 35(b) “allows a district
court to re-sentence a defendant to reflect substantial assistance rendered after the initial
sentence was imposed.” United States v. Ridge, 329 F.3d 535, 541 (6th Cir. 2003). On
appeal, Recla argues that, in determining his sentence, the district court improperly
considered the government’s intention to seek a sentence reduction under Rule 35(b).

         When the sentencing court considers an impermissible factor in calculating a
defendant’s sentence, a reviewing court will vacate and remand for resentencing. E.g.,
No. 07-1252                United States v. Recla                                                 Page 8


United States v. Keller, 498 F.3d 316, 324-25 (6th Cir. 2007) (vacating and remanding
because the district court improperly considered the defendant’s post-sentencing conduct in
the context of a Booker remand). In their arguments to this Court regarding whether the
district court considered an improper factor, both Recla and the government rely on case law
establishing that sentencing courts are precluded from considering a future sentence
reduction under Rule 35(b) in determining whether to grant the government’s motion to
                                                                  1
reduce the defendant’s sentence under USSG § 5K1.1.                   These cases emphasize that a
sentencing court must maintain the “temporal boundaries” between motions under
§ 5K1.1 and those filed pursuant to Rule 35(b). Thus, a sentencing court is precluded
from considering “the prospect of Rule 35(b) relief in the future” in its determination of
whether to grant the government’s motion under § 5K1.1. Ridge, 329 F.3d at 542. In
this case, however, the government did not file, and thus the court did not consider, a
§ 5K1.1 motion.

         Regardless of whether the reasoning of such cases applies outside of the context
of a sentencing court’s consideration of a § 5K1.1 motion, it is clear that sentencing
courts cannot consider the potential for a future sentence reduction in imposing sentence.
See United States v. Drown, 942 F.2d 55, 59 (1st Cir. 1992) (“Imposition of a heavy
sentence greater than would otherwise be warranted, on the theory that it will be reduced
pursuant to Rule 35 . . . if the defendant cooperates in the future investigations, is not
appropriate.”). Further, sentencing the defendant to a particular term of imprisonment
because the sentence later might be reduced is inconsistent with the purpose of Rule
35(b), which permits a court to reward a defendant with a lower sentence based on the
defendant’s post-sentencing cooperation.               Thus, if the district court in this case
considered the government’s intention to file a Rule 35(b) motion in imposing
sentence—by, for example, imposing a higher sentence than it would have in the absence
of the government’s stated intention—Recla’s sentence is unreasonable, and we must
remand for resentencing.

         1
           Under § 5K1.1, “a sentencing judge may sentence a defendant below the applicable guideline
range if the defendant has provided substantial assistance in the investigation and prosecution of others.”
Ridge, 329 F.3d at 541 (citing USSG § 5K1.1). Motions under § 5K1.1 generally are considered during
a defendant’s sentencing hearing, while a sentencing court considers a Rule 35(b) motion after the original
sentencing. See id.
No. 07-1252                United States v. Recla                                               Page 9


         In announcing sentence, the district court stated that Recla’s sentence “will be
imposed with the understanding that there probably will be subsequent motions filed
subsequently [sic].” (J.A. 58) (emphasis added). Relying on this statement, Recla
argues that his sentence is unreasonable. In response, the government argues that, in the
context of the entire record, the court’s “passing reference to the possibility of future
sentence reduction motions simply does not indicate that the . . . sentence was impacted
by the possibility of a motion under Rule 35(b).” (Appellee Br. 19.)

         At the beginning of the sentencing hearing, defense counsel informed the court
that Recla had testified before a grand jury pursuant to his cooperation agreement with
the government and that he “[was] anticipating in the future a Rule 35.” (J.A. 48.)
Defense counsel “wanted to make it clear that . . . Mr. Recla has been cooperative up to
this point and at least the Rule 35 is under consideration once indictments are returned.”
(J.A. 48-49.) The court then questioned the government regarding its intentions with
respect to Recla’s cooperation. The government informed the court that the issue of
cooperation was “primarily left for another day . . . . [T]he United States is considering
a post-sentencing Rule 35 motion based on future cooperation . . . . [A]ny action taken
by the government would be in a Rule 35 context.” (J.A. 50.) Following the
government’s statement, the sentencing judge indicated that he “understood.” (J.A. 50.)
The only other reference to Rule 35(b) occurred in the context of the judge’s
announcement of Recla’s sentence.2

         The record is ambiguous as to whether, in imposing sentence, the district court
considered the government’s intention to file a motion under Rule 35(b) to reduce
Recla’s sentence. However, several factors support a finding that the district court’s
sentence stemmed, at least in part, from this consideration. First, the district court’s
sentence was at the high end of the Guidelines range of fifty-seven to seventy-one
months. Although the PSR concluded that a sixty-four-month sentence was appropriate,
the sentencing judge imposed a seventy-month term of imprisonment. Further, the


         2
          Although the district judge did not mention Rule 35(b) explicitly in announcing sentence, the
only “future motion[]” discussed during the sentencing hearing was a motion under Rule 35(b). On appeal,
the government does not dispute that the district judge’s statement referred to a Rule 35(b) motion.
No. 07-1252            United States v. Recla                                     Page 10


district court stated that he was imposing this sentence “with the understanding” that
future motions might be filed by the government. While the government argues that a
“passing reference to a future Rule 35(b) motion” does not render the sentence
unreasonable, the district court’s statement is not simply a “passing reference.” Instead,
the statement occurs in the context of the district court’s announcement of sentence in
which he summarizes the factors that he considered:

       It will be the sentence of this Court based upon the entire review of the
       presentence report, the entire review of the fine sentencing report, the
       entire review of the guilty plea, that a 70-month sentence in the Federal
       Bureau of Prisons will be imposed with the understanding that there
       probably will be subsequent motions filed subsequently [sic], with four
       recommendations to the Bureau of Prisons.
(J.A. 58.)

       While certain factors suggest the district court considered the government’s
intention to file a Rule 35(b) motion in determining Recla’s sentence, ultimately, the
record does not disclose the extent to which the possibility of the government filing a
Rule 35(b) motion influenced the district court’s sentencing decision—if it influenced
it at all. Accordingly, we cannot “conclude on the record before us that the district court
would have imposed the same . . . sentence” in the absence of this influence. Keller, 498
F.3d at 325. We therefore vacate Recla’s sentence and remand to the district court for
resentencing. On remand, the district court should clarify whether the government’s
intention to seek a sentence reduction under Rule 35(b) influenced its sentencing
decision, and determine whether the sentence should be modified in light of its
conclusion.

II.    PROCEDURAL REASONABLENESS

       Recla also challenges the procedural reasonableness of his sentence. He argues
that, because the district court “did not address at all or even acknowledge the issue
regarding the time [he] spent in state custody,” the district court failed to adequately
explain his sentencing decision and the sentence therefore is procedurally unreasonable.
This Court has established that “[w]here a defendant raises a particular argument in
No. 07-1252             United States v. Recla                                        Page 11


seeking a lower sentence, the record must reflect both that the district judge considered
the defendant’s argument and that the judge explained the basis for rejecting it.” United
States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).

        The Supreme Court similarly has emphasized the need for district courts to
explain their sentencing decisions. In Rita v. United States, 551 U.S. 338, 127 S. Ct.
2456 (2007), the Supreme Court concluded that “[t]he sentencing judge should set forth
enough to satisfy the appellate court that he has considered the parties’ arguments and
has a reasoned basis for exercising his own legal decisionmaking authority.” Id. at 2468.
While a “lengthy explanation” might not be required “when a judge decides simply to
apply the Guidelines to a particular case, . . . . [w]here the defendant . . . presents
nonfrivolous reasons for imposing a different sentence, . . . the judge will normally go
further and explain why he has rejected those arguments.” Id. The Court reiterated
these principles in its subsequent decision in Gall. Gall instructed appellate courts to
“ensure that the district court committed no significant procedural error,” including
“failing to adequately explain the chosen sentence.” Gall, 128 S. Ct. at 597. In
particular, the Court stated that, “[a]fter settling on the appropriate sentence, [the district
judge] must adequately explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.” Id.

        In the sentencing memorandum and during the sentencing hearing, defense
counsel raised the argument that the district court should reduce Recla’s sentence based
on the time that Recla served in state custody awaiting trial on state charges because the
Bureau of Prisons would not take that time into account in calculating Recla’s sentence.
Defense counsel noted that federal authorities interviewed Recla while he was in state
custody, and that Recla entered into his plea agreement in September of 2006, before his
transfer to federal custody on October 26, 2006.

        A district court must consider the advisory Guidelines range and all relevant
factors identified in 18 U.S.C. § 3553(a). United States v. Jones, 445 F.3d 865, 869 (6th
Cir. 2006). Recla’s argument is relevant under both § 3553(a)(2)(A), which requires a
court to consider whether the sentence would be just punishment for the offense, as well
No. 07-1252            United States v. Recla                                      Page 12


as § 3553(a)(2)(B), directing a sentencing court to consider the need for adequate
deterrence. See id. at 869 n.5. Thus, Recla’s argument that his sentence should be
reduced to account for time spent in state custody presents a valid basis for reducing his
sentence and, therefore, is not frivolous. See United States v. Sylvester, 289 F. App’x
860, 865-66 (6th Cir. 2008) (considering a challenge to the procedural reasonableness
of the defendant’s sentence based on the district court’s asserted failure to consider the
time that the defendant had spent in state custody as a mitigating factor).

        The parties appear to agree that the district court did not, at any point during the
sentencing hearing, explicitly refer to or discuss Recla’s argument regarding time served
while in state custody as a reason to reduce his sentence. The district court did explain
its reasons for rejecting Recla’s primary argument for a reduced sentence—that Recla’s
history of drug use stemmed from a hunting accident he suffered as a teenager—stating
that it could not “quite buy the hunting accident when he was a teenager giving rise to
his helplessness as a result of drug addiction.” (J.A. 56.) In addition, to the extent Recla
argued that his cooperation with the government warranted a lower sentence, the court
acknowledged that he had cooperated with the government’s investigation. However,
the district court failed to mention or otherwise acknowledge Recla’s argument that his
sentence should be reduced based on the time he spent in state custody. The government
argues that the fact that the judge “noted that he had reviewed [Recla]’s sentencing
memorandum, in which [Recla] raised this argument” demonstrates that the court
considered the argument. (Appellee Br. 16.) As a result, according to the government,
“[t]here is no reason to believe that the district court simply missed this part of the
memorandum.” (Id.)

        We disagree with the government that the district court’s reference to the
sentencing memorandum indicates that the district court “considered” the argument. The
omission of an explanation for rejecting one of Recla’s nonfrivolous arguments for a
reduction in his sentence failed to “assure[] not only that the defendant can understand
the basis for the particular sentence but also that the reviewing court can intelligently
determine whether the specific sentence is indeed reasonable.” Richardson, 437 F.3d
550. However, because we remand to the district court based on its potential error in
No. 07-1252            United States v. Recla                                      Page 13


considering the government’s intention to file a Rule 35(b) motion in imposing sentence,
we do not reach the issue of whether Recla’s sentence is unreasonable. See United
States v. Driver, 535 F.3d 424, 433 n.3 (6th Cir. 2008). Nonetheless, we emphasize that
the better practice is for district judges to articulate the reasons, “even if brief,” for
rejecting a defendant’s nonfrivolous arguments in favor of a reduced sentence. See Rita,
127 S.Ct. at 2469. Accordingly, the district court on remand will undoubtedly wish to
address Recla’s argument that his sentence should be reduced to take into account the
time he spent in state custody.

III.    SUBSTANTIVE REASONABLENESS

        In evaluating substantive reasonableness, the Court examines whether the length
of the sentence is “sufficient, but not greater than necessary, to comply with the
purposes” of sentencing as set forth by Congress in the sentencing statute. United States
v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006). Thus, “[t]he touchstone for our
review 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). A sentence is
substantively unreasonable where the district 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. Webb, 403 F.3d 373, 385 (6th Cir.
2005). In reviewing a sentence on appeal, this Circuit applies a rebuttable presumption
of reasonableness to sentences that are within a properly calculated Guidelines range.
United States v. Alexander, 543 F.3d 819, 822 (6th Cir. 2008); see also Gall, 128 S. Ct.
at 597 (“If the sentence is within the Guidelines range, the appellate court may . . . apply
a presumption of reasonableness.”). A within-Guidelines sentence, however, is not
“‘per-se reasonable.’” Richardson, 437 F.3d at 554 n.2 (quoting Webb, 403 F.3d at 385
n.9).

        Recla argues that his sentence is substantively unreasonable because the length
of his sentence was “too severe.” First, Recla argues that, because the district court
failed to consider his argument that he should receive a lower sentence to account for the
time he spent in state custody, the sentence is too long. Recla also contends that his
No. 07-1252           United States v. Recla                                  Page 14


sentence is too severe, and therefore substantively unreasonable, because the district
court considered the possibility that a future Rule 35(b) motion would reduce his
sentence.

       Because we remand to the district court so that this Court can meaningfully
review on appeal whether the district court considered an improper factor in imposing
sentence, we do not reach the issue of whether Recla’s sentence is substantively
unreasonable. See Driver, 535 F.3d at 433 n.3.

                                   CONCLUSION

       For the reasons set forth above, we VACATE Recla’s sentence and REMAND
the case for resentencing consistent with this opinion.
