                                                                              FILED
                                                             U n i t e d S t a t e s C o u rt o f A p p ea ls
                                                                           T e nth C ir cu it

                                                                       Februa ry 3, 2017
                UNITED STATES COURT OF APPEALS
                                                                   Elisa bet h A. Sh uma ker
                                                                       Clerk of Court
                       FOR THE TENTH CIRCUIT
                      ____________________________________

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
                                                  No. 16-1034
v.                                       (D.C. No. 1:15-CR-00221-RBJ-1)
                                                   (D. Colo.)
MICHAEL ALVARES FYKES,

      Defendant-Appellant.
                    _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before BACHARACH and O’BRIEN, Circuit Judges.  
                 _________________________________

     This appeal involves issues of probable cause, the meaning of

constructive possession, and the reasonableness of a sentence. The case

began with a 911 call, in which the caller stated that two men in a red


*
      This order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and
collateral estoppel. But the order and judgment may be cited for its
persuasive value under Fed. R. App. P. 32.1(a) and Tenth Cir. R.
32.1(A).

      The Honorable Neil Gorsuch heard oral argument but did not
participate in this order and judgment. The practice of this court
permits the remaining two panel judges if in agreement to act as a
quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also
United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997)
(noting that this court allows remaining panel judges to act as a
quorum to resolve an appeal).
sedan were forcing a woman to engage in prostitution. The 911 call led the

police to arrest two occupants of a red sedan. One of them was the

defendant, Mr. Michael Fykes.

      The police then searched the sedan and found a backpack containing

a handgun. Mr. Fykes admitted that he owned the backpack but denied

ownership of the handgun; he claimed that he had loaned his backpack to

the other man (Mr. Ron Trueblood), who presumably had placed the

handgun inside the backpack.

      After a jury trial, Mr. Fykes was convicted under 18 U.S.C.

§ 922(g)(1), which prohibits a convicted felon from possessing a firearm.

The sentence included 60 months’ imprisonment and 3 years’ supervised

release.

      Mr. Fykes raises two challenges to his conviction.

      First, Mr. Fykes asserts that the police lacked probable cause for the

arrests. Absent probable cause, the police could not later conduct an

inventory search of the sedan and find the handgun. We reject this

assertion, holding that the police had probable cause for the arrests.

      Second, Mr. Fykes challenges the jury instruction defining

“constructive possession.” As Mr. Fykes argues, the instruction failed to

include an element of constructive possession: intent to exercise dominion

or control over the handgun. This challenge was not raised in district court;

thus, we apply the plain-error standard.


                                   2
      The government concedes the existence of an obvious error. The

dispositive issue is whether the omission of the intent element affected Mr.

Fykes’s substantial rights by creating prejudice. Mr. Fykes cannot satisfy

this standard in light of the way that constructive possession was disputed

at trial. The parties presented dramatically opposed theories: The

government argued that Mr. Fykes owned the gun; he denied ownership.

The finding of guilt suggests that the jury credited the government’s

argument that Mr. Fykes had owned the gun. If the jury regarded Mr. Fykes

as the owner of the gun, the error in the jury instruction would have made

little difference. Other circumstances could conceivably have suggested

prejudice. But Mr. Fykes has not pointed to any other reason to consider

the error prejudicial.

      Mr. Fykes also challenges the procedural and substantive

reasonableness of his sentence. At sentencing, the district court imposed a

prison term that exceeded the guideline range, explaining that the

guidelines did not fully account for Mr. Fykes’s extensive criminal history

and lack of remorse. These factors led the court to apply both a departure

and a variance. The court erred by departing because departures require

notice, which the court failed to provide. But the variance was

procedurally and substantively reasonable. Thus, we affirm the sentence.

I.    Probable Cause




                                  3
      In district court, Mr. Fykes moved to suppress evidence that a gun

had been in the backpack. In the motion, he argued that the police had

lacked probable cause for the arrests, which would have precluded the

subsequent inventory search of the sedan. The district court denied the

motion to suppress, concluding that the police had probable cause for the

arrests. This conclusion was correct.

      In determining whether probable cause existed, we engage in de novo

review. United States v. Huff, 782 F.3d 1221, 1225 (10th Cir. 2015).

Through this review, we consider the evidence in the light most favorable

to the prosecution and accept the trial court’s factual findings unless they

are clearly erroneous. United States v. Brinson, 772 F.3d 1314, 1324 (10th

Cir. 2014).

      The Fourth Amendment provides:

      The right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures,
      shall not be violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and the
      persons or things to be seized.

U.S. Const. amend. IV. The Fourth Amendment requires a warrant to

search one’s “effects” unless an exception applies. See Cady v.

Dombrowski, 413 U.S. 433, 439 (1973).

      Vehicles are considered “effects” within the meaning of the Fourth

Amendment. Id. Thus, the police would ordinarily need a warrant to search



                                   4
the sedan. Because the police had no warrant, the presence of the firearm

would be admissible only upon satisfaction of an exception to the warrant

requirement.

     The government relies on the exception for inventory searches. Under

this exception, the police may inventory a vehicle’s contents under

appropriate circumstances. South Dakota v. Opperman, 428 U.S. 364, 369-

76 (1976). 1 One such circumstance is when the police impound a vehicle

that would otherwise be stranded when everyone in the vehicle is arrested.

See United States v. Shareef, 100 F.3d 1491, 1508 (10th Cir. 1996).

     Mr. Fykes contends that the evidence should have been excluded

based on the absence of probable cause for the arrests. If either arrest was

unlawful, the police could not have impounded and inventoried the sedan,

for Mr. Fykes or Mr. Trueblood could have driven the sedan away. And in

the absence of a lawful impoundment or inventory, evidence discovered in

the inventory search would ordinarily have been inadmissible. See Wong

Sun v. United States, 371 U.S. 471, 485 (1963). But, in our view, the

police could impound the vehicle and conduct an inventory search because

probable cause existed for the arrests of Mr. Fykes and Mr. Trueblood.

     Probable cause exists when “under the totality of the circumstances

. . . a reasonable person [would] believe that an offense has been or is

1
     The search must follow standard law enforcement procedures.
Opperman, 428 U.S. at 372. But Mr. Fykes does not challenge the search
based on a failure to follow standard law enforcement procedures.

                                   5
being committed by the person arrested.” United States v. Muñoz-Nava,

524 F.3d 1137, 1144 (10th Cir. 2008) (quoting United States v. Brooks, 438

F.3d 1231, 1241 (10th Cir. 2006)). In our view, the arresting officer

(Detective Lisabeth Reid) could reasonably believe that Mr. Fykes and Mr.

Trueblood had committed two Colorado crimes, human trafficking and

pimping.

      Colorado law defines human trafficking and pimping:

      [Human trafficking:] A person who knowingly sells, recruits,
      harbors, transports, transfers, isolates, entices, provides,
      receives, or obtains by any means another person for the
      purpose of coercing the person to engage in commercial sexual
      activity commits human trafficking for sexual servitude.

Colo. Rev. Stat. § 18-3-504(1)(a) (“Human trafficking for sexual

servitude”).

      [Pimping:] Any person who knowingly lives on or is supported
      or maintained in whole or in part by money or other thing of
      value earned, received, procured, or realized by any other
      person through prostitution commits pimping, which is a class
      3 felony.

Colo. Rev. Stat. § 18-7-206 (“Pimping”).

      The police received a 911 call from a man (Alfred) stating that he

was with a frightened, crying woman. According to Alfred, the woman was

a prostitute who feared her two “pimps” waiting outside in a red four-door

sedan. Alfred identified himself by name and provided the police with his

location. At the end of the call, Alfred explained that the woman had left




                                  6
the apartment and had possibly entered the sedan. R. vol. 1, at 174-75 (911

transcript).

      The information from the call was transmitted to some responding

officers, who had callscreens in their vehicles. Detective Reid did not have

a callscreen in her vehicle, but the information she received from dispatch

was “similar or identical” to the information that Alfred shared during the

call. R. vol. 6, at 117.

      Before Detective Reid arrived at the scene, the other responding

officers had spoken with Mr. Fykes. In those conversations, Mr. Fykes

admitted that that he and Mr. Trueblood had come to pick up the woman.

Id. at 53, 126.

      Upon arrival, Detective Reid observed the woman and tried to speak

with her. According to Detective Reid, the woman was crying and shaking

and appeared too scared to talk. Id. at 120.

      Unable to speak with the woman, Detective Reid interviewed Alfred,

who stated that he had hired the woman for sexual services, finding her on

a website (backpage.com). Id. at 121-22. From experience, Detective Reid

knew that (1) prostitutes frequently advertise on backpage.com for sexual

services and (2) individuals like Alfred do not typically admit to hiring

prostitutes. This knowledge solidified Detective Reid’s belief that Alfred’s

story was truthful.




                                   7
      After speaking with Alfred, Detective Reid again tried to speak with

the woman. By this point, the woman had begun to shake more violently

and said that she was having an anxiety attack. Id. at 125. In Detective

Reid’s experience, the woman’s demeanor was consistent with someone

victimized by human trafficking.

      Detective Reid then spoke to the other responding officers, who

shared what they had learned. Following that discussion, Detective Reid

decided to arrest Mr. Fykes and Mr. Trueblood.

      The issue here is whether Detective Reid’s information constituted

probable cause to believe that the men were committing human trafficking

or pimping. For probable cause, the information had to be sufficient for

Detective Reid to reasonably infer that the woman was a prostitute, that

Mr. Fykes and Mr. Trueblood were pimps for the woman, and that the

woman feared Mr. Fykes and Mr. Trueblood. Therefore, we must determine

whether these inferences would have been reasonable based on the facts

known to Detective Reid.

      The reasonableness of these inferences turns primarily on Alfred’s

reliability as an informant. In gauging the reliability of an informant, we

consider the “totality of the circumstances.” United States v. Artez, 389

F.3d 1106, 1111 (10th Cir. 2004) (quoting Illinois v. Gates, 462 U.S. 213,

238 (1983)). These circumstances include (1) the informant’s “veracity,

reliability, and basis of knowledge” and (2) other indicia of a tip’s


                                   8
reliability, such as corroboration by an officer’s independent observations.

Id.; United States v. Hendrix, 664 F.3d 1334, 1338 (10th Cir. 2011). These

factors support Alfred’s reliability.

         Veracity. Veracity is often suggested by a tipster’s

              making of an admission against penal interest,

              use of the 911 emergency system,

              making of a contemporaneous report, and

              self-identification. 2

    All of these factors suggested that Alfred was honest. Alfred

    acknowledged his own crime (hiring a prostitute for sexual services), used

    the 911 emergency system, provided his observations contemporaneously

    as the events unfolded, and identified himself. Thus, this factor supports

    the reliability of Alfred’s information.

         Basis of Knowledge. “[F]or basis of knowledge, a firsthand

observation is entitled to greater weight than secondhand information.”

United States v. Quezada-Enriquez, 567 F.3d 1228, 1233 (10th Cir. 2009).

Information is more likely to be firsthand when the reported details are

“highly specific or personal.” See United States v. Hendrix, 664 F.3d 1334,

1338 (10th Cir. 2011).
2
      See Navarette v. California, 134 S. Ct. 1683, 1689-90 (2014)
(911 emergency system and contemporaneous reporting); United
States v. Quezada-Enriquez, 567 F.3d 1228, 1233 (10th Cir. 2009)
(against penal interest); United States v. Copening, 506 F.3d 1241,
1247 (10th Cir. 2007) (self-identification).

                                        9
      Alfred observed the events firsthand and provided specific, personal

details showing his firsthand knowledge: He described the woman’s

frightened demeanor, stated that the men were in a red four-door sedan,

and identified the website he had used to hire the prostitute. As a result,

this factor suggests that Alfred’s information was reliable.

      Corroboration. Detective Reid corroborated much of the information

provided in the 911 call. For example, the woman’s frightened demeanor

matched Alfred’s description and was consistent with his statement that the

woman was a prostitute. In addition, Detective Reid knew from experience

that the website identified by Alfred—backpage.com—was used by

prostitutes selling sexual services. Finally, Detective Reid learned that the

individuals inside the red sedan were the individuals that Alfred had seen.

That sedan partially matched Alfred’s description, 3 and Mr. Fykes admitted

that he and Mr. Trueblood had come to pick up the woman.

      The facts resemble those in United States v. Hendrix, 664 F.3d 1334

(10th Cir. 2011). There the police found an individual carrying drugs who

said that he had bought the drugs in a specific motel room. Hendrix, 664

3
       Alfred’s description of the sedan was not perfect. The sedan was
described as a red four-door Chevy Malibu, but it was actually a red four-
door Pontiac. R. vol. 6, at 67. We consider this inconsistency as part of the
“totality of the circumstances,” but the inconsistency is minor and does not
preclude probable cause. See United States v. Traxler, 477 F.3d 1243, 1247
(10th Cir. 2007) (explaining that a “minor inconsistency in the informant’s
tip”—that the defendant’s truck was white, but the informant had reported
it as black—did not defeat a finding of probable cause in light of the other
circumstances).

                                   10
F.3d at 1339. The police confirmed that a motel existed at the address

provided and that the specific room was occupied. Id. When the police

knocked on the motel room door and identified themselves, they heard

movement, doors opening and closing, and a toilet flushing. Id. at 1337,

1339. We concluded that this information had “provided sufficient

independent corroboration” of the informant’s tip to supply probable cause

for a search of the motel room. Id. at 1339.

      Our case is similar. In both Hendrix and our case,

           the tipster made an incriminating statement and

           the arresting officers independently corroborated the substance
            of the tip.

The tip was considered reliable in Hendrix, and Alfred’s tip was equally

reliable.

                                    * * *

      Mr. Fykes denies probable cause, contending that

           after receiving the 911 call, the police did not receive any
            additional evidence of a crime and

           the only person who had used the word “prostitute” or “pimp”
            was Alfred.

The first assertion is incorrect. Detective Reid obtained new information

when she arrived on the scene. For instance, she observed the woman’s

demeanor and learned that Alfred had hired the woman as a prostitute

based on an advertisement in backpage.com. The second assertion is not



                                  11
dispositive. Regardless of whether Alfred was the only person using the

word “prostitute” or “pimp,” probable cause existed. Alfred’s terminology

is secondary; more relevant is what he said was happening and what

Detective Reid observed.

                                    * * *

     We conclude that Detective Reid reasonably believed that the woman

was a prostitute who feared her pimps (Mr. Fykes and Mr. Trueblood). As a

result, Detective Reid had probable cause to believe that Mr. Fykes and

Mr. Trueblood were engaged in human trafficking or pimping. 4 In light of

the existence of probable cause, we uphold the district court’s denial of

Mr. Fykes’s motion to suppress.




4
      Mr. Fykes suggests that Detective Reid’s failure to specify the
charge for Mr. Fykes’s arrest precludes a finding of probable cause. We
disagree. If an officer objectively has probable cause to believe that a
crime has been committed, the officer’s intentions are irrelevant. Quinn v.
Young, 780 F.3d 998, 1006 (10th Cir. 2015).

                                  12
II.   The Jury Instruction

      The jury ultimately found that Mr. Fykes had possessed a handgun.

The jury reached this finding after being instructed on constructive

possession: “A person who, although not in actual possession, knowingly

has the power at a given time to exercise dominion or control over an

object, either directly or through another person or persons, is then in

constructive possession of it.” R. vol. 1, at 418. Under this instruction, the

jury could find that Mr. Fykes had constructive possession over the

handgun if he knew about it and had the power to exercise dominion or

control. Mr. Fykes challenges this instruction. We reject the challenge

under the plain-error standard.

      A.    The Change in the Law

      During this appeal, the law changed when our court held that

constructive possession contains an additional element: intent. It is now no

longer enough to show that Mr. Fykes knew about the handgun and could

control it. Instead, the government also needed to show that Mr. Fykes had

intended to exercise dominion or control. United States v. Little, 829 F.3d

1177, 1182 (10th Cir. 2016).

      B.    The Plain-Error Standard

      Because Mr. Fykes did not raise this objection in district court, our

review is only for plain error. See United States v. Lin, 410 F.3d 1187,

1190 (10th Cir. 2005). The plain-error standard contains four elements:


                                   13
      1.    The district court made an error.

      2.    The error was plain.

      3.    The error affected the defendant’s substantial rights.

      4.    The error seriously affected the fairness, integrity, or public
            reputation of judicial proceedings.

United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012) (citation

omitted).

      The government concedes that the first two prongs of the plain-error

test are satisfied: the existence of an error and the plain nature of the error.

We agree with the parties that the first two prongs are satisfied. The

parties’ disagreement involves the third and fourth prongs: whether the

error (1) affected Mr. Fykes’s substantial rights and (2) seriously affected

the fairness, integrity, or public reputation of judicial proceedings.

      We focus on the third prong, which requires Mr. Fykes to show that

the error affected his substantial rights. United States v. Gonzalez-Huerta,

403 F.3d 727, 733 (10th Cir. 2005) (en banc). To satisfy that burden, Mr.

Fykes “must show ‘a reasonable probability that, but for the error claimed,

the result of the proceeding would have been different.’” Id. (quoting

United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). Mr. Fykes

has not satisfied that burden.




                                   14
     C.      The Trial and the Parties’ Theories

     The police searched the sedan’s trunk, finding a backpack that

contained a handgun. Mr. Fykes admitted that the backpack was his but

denied knowing about the handgun. He explained that he had loaned the

backpack to Mr. Trueblood, who needed to use the backpack because he

was moving. According to Mr. Fykes, the handgun was presumably Mr.

Trueblood’s. Mr. Fykes insisted that he did not know about the handgun

because he had not looked inside the backpack after loaning it to Mr.

Trueblood.

     The government disputed this account, arguing that the handgun was

Mr. Fykes’s. To support this theory, the government pointed to other items

inside the backpack that suggested Mr. Fykes’s ownership of the

backpack’s contents:

            Mr. Fykes’s passport,

            a laptop computer that contained Mr. Fykes’s medical
             document,

            cell phone chargers that fit Mr. Fykes’s cell phones, and

            a container of cigarillos like those found close to Mr. Fykes’s
             seat.

     In response, Mr. Fykes claimed that he had forgotten that his

passport was inside his backpack, that he had previously used the laptop

computer to check his email and download the document, that the cell

phone chargers were generic and fit many cell phones (including Mr.

                                     15
Trueblood’s), and that he smoked cigarettes rather than cigarillos. Mr.

Fykes added that no fingerprints had been found on the gun and that a

fingerprint on the laptop was not his. 5

      In turn, the government replied that Mr. Fykes would not likely have

forgotten about his passport or left his medical document on another

person’s computer. 6 The government also pointed out that Mr. Trueblood

already had his cell phone chargers. Finally, the government’s expert

testified that it was uncommon for fingerprints to be found on handguns.

      D.    Absence of Prejudice

      The jury found that Mr. Fykes had possessed the handgun. The jury

was not instructed on intent, but necessarily rejected Mr. Fykes’s “lack of

knowledge” theory. Faced with the parties’ dual theories, the jury likely

adopted the government’s theory that the handgun was Mr. Fykes’s.

      Mr. Fykes argues that the jury might have harbored doubt about

intent. For instance, the jury might have believed that Mr. Fykes had

known about the gun even though it was not his. He contends that under


5
      In addition, Mr. Fykes pointed out that although Mr. Trueblood had
told the police he did not own any guns, Mr. Trueblood had purchased an
unrelated firearm in May 2014. As a police officer testified, however, Mr.
Trueblood could have sold the firearm before being confronted by police in
February 2015.
6
     The document contained psychological and financial information that
Mr. Fykes testified he had not told anyone about. In addition, Mr. Fykes
admitted that when he had allegedly downloaded the document onto the
computer, he had known Mr. Trueblood for only about one to three months.

                                   16
this scenario, the jury would have found guilt under the erroneous jury

instruction but found Mr. Fykes not guilty under a proper instruction. We

reject this contention. In light of the parties’ theories and the evidence

presented, the jury more likely regarded Mr. Fykes as the owner of the

handgun.

      The jury did not reject Mr. Fykes’s “lack of knowledge” theory in a

vacuum. The government had linked Mr. Fykes to the contents of the

backpack through the passport, laptop, cigarillos, and cell-phone chargers.

The government did not suggest any reason to find Mr. Fykes guilty if the

gun had belonged to Mr. Trueblood. Therefore, in finding guilt, the jury

probably believed that Mr. Fykes had owned the handgun and was using his

backpack. That belief would likely have caused the jury to find an intent to

exercise dominion or control of the handgun. In these circumstances, we

conclude that Mr. Fykes has not satisfied his burden to show prejudice.

      This conclusion is consistent with our case law. Typically,

defendants can satisfy their burden on prejudice by presenting a

compelling reason to believe that the jury might have been misled. For

example, we have found prejudice when an erroneous instruction allowed

the jury to improperly circumvent the defendant’s trial theory, when the

prosecutor invited the jury to rely on the instruction’s error, or when there

was other evidence of jury confusion. See, e.g., United States v. Simpson,

No 15-1295, slip op. at 43-46 (10th Cir. Jan. 10, 2017) (to be published)


                                   17
(finding a likelihood of prejudice when the prosecutor invited the jury to

consider the evidence in a way that likely caused the jury to rely on the

error in the jury instructions); United States v. Bader, 678 F.3d 858, 869

(10th Cir. 2012) (same); United States v. Serawop, 410 F.3d 656, 670 (10th

Cir. 2005) (finding a likelihood of prejudice when the jury instruction

omitted the mens rea element of voluntary manslaughter and the

defendant’s trial theory centered on that element); United States v. Duran,

133 F.3d 1324, 1333 (10th Cir. 1998) (finding a likelihood of prejudice

when a jury question suggested confusion over the substance of the

instruction’s error).

      By contrast, our case law indicates that it is not enough for a

defendant to make a conclusory, speculative statement that the jury was

misled by an erroneous jury instruction. For example, we have declined to

find prejudice when the defendant simply explains how the instruction’s

erroneous language could theoretically have misled the jury, but fails to

provide any supporting reason for how the jury in that particular case

might have been misled. See United States v. Zapata, 546 F.3d 1179, 1191

(10th Cir. 2008) (“This unsupported statement, [explaining that the

language of the erroneous jury instruction could have misled the jury,]

without more, is not enough to show that jurors did, in fact, consider

evidence [improperly] in determining the[] [defendant’s] guilt.”).




                                  18
       Mr. Fykes has not provided any specific reason to believe that the

jury might have been misled by the erroneous jury instruction. And, as

explained above, his trial theory suggests that the instruction had little

impact on the outcome. At trial, Mr. Fykes argued that he had not known

that the handgun was inside his backpack. The government countered that

the handgun was owned by Mr. Fykes, who was using his backpack at the

time. In light of the guilty verdict, the jury likely adopted the

government’s version of events. See United States v. Williams, 344 F.3d

365, 378-79 (3d Cir. 2003) (holding that an alleged error in jury

instructions on constructive possession did not affect the defendant’s

substantial rights because the jury had apparently credited the

government’s version of events, which would have required conviction

even if the jury had been correctly instructed).

       If the jury had adopted the government’s version, a different

instruction on intent would probably not have mattered: If Mr. Fykes

owned the gun, he probably intended to exercise dominion or control over

the gun. Accordingly, we reject Mr. Fykes’s challenge to the erroneous

jury instruction.

III.   The 60-Month Sentence

       After the jury found guilt, the district court sentenced Mr. Fykes

above the applicable guideline range. In doing so, the court pointed to Mr.




                                   19
Fykes’s criminal history and lack of remorse. Mr. Fykes argues that his

sentence is procedurally and substantively unreasonable. We disagree.

      A.    The Sentencing

      The district court sentenced Mr. Fykes to 60 months’ imprisonment.

In deciding on this sentence, the court calculated the guideline range and

explained the reasons for deviating from that range.

      The court calculated the guideline range at 41 to 51 months. For this

calculation, the court noted that Mr. Fykes’s base level was 20. The court

then found that Mr. Fykes’s criminal history category was 3, as he had 4

criminal-history points. Three of the criminal-history points were based on

his 1992 crack-cocaine conviction; the remaining criminal-history point

was based on a conviction for driving while intoxicated.

      After calculating the guideline range, the district court concluded

that the guidelines understated Mr. Fykes’s criminal history. R. vol. 6, at

821 (“The overall picture is much different, in my view, than a level III.”);

see also id. at 818 (“What bothers me about this case, mostly, is that I

think the criminal-history level of III[] . . . substantially understates his

criminal history.”). The court noted that Mr. Fykes had numerous

convictions not triggering criminal-history points. Id. at 818-820. In

addition, the court considered Mr. Fykes’s lack of remorse, as evidenced

by his continuous crimes and failure to appear in court after multiple DUI

charges. Id. at 816 (“It doesn’t appear to me that this youngster has learned


                                    20
his lesson, as he gets into middle age.”); id. at 821 (“And it bothers me

that he just blows these things off and doesn’t care, he just disappears and

goes to another state and does some more driving and drinking, and I am

taking that into consideration.”).

      These considerations led the district court to impose a sentence nine

months above the top of the guideline range. The court characterized the

sentence as both a departure and a variance. When the probation officer

asked the court whether the sentence was a departure or a variance, the

court replied that the sentence was both: “I’ll say that I chose both. That

way, if I’m wrong on one, I’ll be right on the other.” Id. at 823-24.

      B.    Procedural Reasonableness

      We review a sentence for reasonableness, asking whether the court

abused its discretion. United States v. Lente, 759 F.3d 1149, 1155 (10th

Cir. 2014). Reasonableness has procedural and substantive components. Id.

Mr. Fykes first invokes the procedural component, essentially arguing that

the district court did not “us[e] the proper method to calculate the

sentence.” Id. We reject this argument.

      1.    Combination of a Departure and Variance

      Mr. Fykes contends that the district court procedurally erred by

departing from the applicable sentencing range without providing the

necessary notice. But Mr. Fykes did not object in district court to the




                                     21
departure. Thus, our review here is confined to the plain-error standard.

See pp. 13-14, above.

     A departure ordinarily requires notice. See Fed. R. Crim. P. 32(h)

(“Before the court may depart from the applicable sentencing range on a

ground not identified for departure either in the presentence report or in a

party’s prehearing submission, the court must give the parties reasonable

notice that it is contemplating such a departure.”). And the court did not

provide notice. Thus, we can assume, for the sake of argument, that the

failure to provide notice constituted an obvious error.

     Nonetheless, the challenge would fail at the third prong of the plain-

error standard because the error was not prejudicial. The deviation

constituted not only a departure, but also a variance. And a variance does

not require advance notice. Irizarry v. United States, 553 U.S. 708, 716

(2008).

     Mr. Fykes contends that his sentence involved only a departure, not a

variance. For this contention, Mr. Fykes states that the oral pronouncement

was ambiguous, requiring us to consider the written judgment. According

to Mr. Fykes, the written judgment supports characterization of the

sentence solely as a departure. We reject Mr. Fykes’s characterization of

the sentence.

     A district court may issue both a variance and a departure; the court

does not need to choose one over the other, and the court does not


                                  22
necessarily need to discuss each one separately. See United States v.

Martinez-Barragan, 545 F.3d 894, 901 (10th Cir. 2008) (“Departures and

variances are analytically distinct[] . . . . But a sentencing judge does not

commit reversible error by consolidating the two discussions.”); see also

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1220 (10th Cir.

2008) (“[W]e first determine whether the district court departed upward,

varied upward, or both departed and varied upward . . . .” (emphasis

added)).

      The court unambiguously stated that it was both departing and

varying; thus, we need not consult the written judgment. United States v.

Villano, 816 F.2d 1448, 1450-51 (10th Cir. 1987) (en banc). Because the

sentence involved both a departure and a variance, the failure to provide

advance notice was not prejudicial under the third prong of the plain-error

standard.

      2.    Adequacy of the Explanation for the Variance

      Mr. Fykes also argues that a variance would be procedurally

unreasonable because the district court failed to properly discuss the

sentencing factors stated in 18 U.S.C. § 3553(a). He did not raise this

challenge in district court; thus, we review this challenge under the plain-

error standard. See pp. 13-14, above. Because the court properly discussed

the § 3553(a) factors, we reject Mr. Fykes’s challenge.




                                   23
     District courts have discretion to impose non-guideline sentences.

Pepper v. United States, 562 U.S. 476, 501 (2011). But a district court

must show that it “considered the parties’ arguments and has a reasoned

basis for exercising [the district court’s] own legal decisionmaking

authority.” United States v. Lente, 759 F.3d 1149, 1156 (10th Cir. 2014)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)). In showing the

reasonableness of this basis, the court must explain its sentencing decision

based on the facts and the § 3553(a) sentencing factors. 7 18 U.S.C.

§ 3553(c)(2); United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir.

2008). The court must consider each factor. Mendoza, 543 F.3d at 1191.

But explicit discussion of every factor is unnecessary. United States v.

Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012). And no magic words are

necessary for a proper discussion. United States v. Pinson, 542 F.3d 822,

833 (10th Cir. 2008).

     The district court properly exercised its discretion to vary from the

guidelines. The court pointed to Mr. Fykes’s criminal history and lack of


7
     We have summarized the § 3553(a) factors:

     (1) the nature and circumstances of the offense and the history
     and characteristics of the defendant; (2) the need for the
     sentence imposed; (3) the kinds of sentences available; (4) the
     recommended Guidelines range; (5) the policies underlying the
     Guidelines; (6) the need to avoid unwarranted sentencing
     disparities; and, (7) the need for restitution to any victims.

United States v. Sanchez-Leon, 764 F.3d 1248, 1262 n.9 (10th Cir. 2014).

                                  24
remorse. See 18 U.S.C. § 3553(a)(1) (“the history and characteristics of the

defendant”); id. § 3553(a)(2) (“the need for the sentence imposed”).

     At oral argument, Mr. Fykes acknowledged that these are appropriate

justifications for an upward variance. But he argued that the court

mentioned those justifications only to support a departure, not a variance.

In his view, “[t]he court gave no ‘specific reasons’ why it was imposing [a

variance] and instead gave only one hypothetical reason why it might do

so.” Appellant’s Opening Br. at 26 (quoting 18 U.S.C. § 3553(c)(2)).

     We disagree. The court noted Mr. Fykes’s criminal history and lack

of remorse and then observed that a variance would be appropriate if the

criminal-history level had been understated by the guidelines. These

comments suggest that the court was explaining its decision to vary upward

as well as to depart upward. Thus, we conclude that the sentence was

procedurally reasonable.

     C.    Substantive Reasonableness

     Finally, Mr. Fykes challenges the substantive reasonableness of his

sentence. We reject this challenge.

     “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. Lente, 759

F.3d 1149, 1155 (10th Cir. 2014) (quoting United States v. Conlan, 500

F.3d 1167, 1169 (10th Cir. 2007)). We review the substantive


                                  25
reasonableness of a sentence for an abuse of discretion. Id. at 1158. “Under

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

capricious, whimsical, or manifestly unreasonable.’” Id. (quoting United

States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)).

      According to Mr. Fykes, the district court should have “equitably

reduced” the sentence in light of a change in the law affecting treatment of

his 1992 crack-cocaine conviction. 8 Appellant’s Opening Br. at 36. Mr.

Fykes argues that if his 1992 conviction had taken place under current law,

the guideline range and resulting sentence for that conviction would have

been shorter, rendering the conviction too old to trigger any criminal

history points for use in the present case. 9 We reject this assertion because

the district court



8
     The government argues that this challenge involves procedural
reasonableness but not substantive reasonableness. We disagree.

      Mr. Fykes’s brief does contain some stray statements that implicate
procedural reasonableness. For example, in his summary of argument and
one of his argument headings, Mr. Fykes states that the court improperly
calculated his guideline range; this challenge would be procedural rather
than substantive. United States v. Hamilton, 587 F.3d 1199, 1219 (10th
Cir. 2009). But Mr. Fykes does not support this assertion with any
argument. Any such procedural argument is therefore waived. United
States v. Hamilton, 510 F.3d 1209, 1218 n.5 (10th Cir. 2007).
9
      In district court, Mr. Fykes did not object to the substantive
reasonableness of his sentence. Defendants need not object to preserve a
claim that a sentence is unreasonably long. United States v. Vasquez-
Alcarez, 647 F.3d 973, 976 (10th Cir. 2011). But we have suggested that a
defendant may forfeit the specific argument being made here: that the

                                   26
           provided a reasonable explanation for declining to shorten the
            sentence based upon the 1992 conviction and

           otherwise justified the extent of the variance.

      On the first point, the staleness of a prior conviction may affect the

reasonableness of a sentence. See United States v. Chavez-Suarez, 597 F.3d

1137, 1138 (10th Cir. 2010). Here, however, the district court explained

why it did not treat the 1992 conviction as stale. The court noted that even

if the guideline range for that offense had been lower, there was no way to

know whether the trial court in 1992 would have issued a sentence within

the guideline range. This explanation was not arbitrary, capricious,

whimsical, or manifestly unreasonable.

      On the second point, we consider the district court’s justification for

the variance. See United States v. Singer, 825 F.3d 1151, 1159 (10th Cir.

2016) (“When a district court decides to impose a sentence above the

advisory Guidelines range, it ‘must consider the extent of the deviation

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

compelling to support the degree of variance.’” (alteration in original)

(citation omitted)). In doing so, we give “due deference” to the district


“sentence’s accounting for [an] old conviction is substantively
unreasonable.” Id. at 976-77.

      We face the same potential issue here, but “we need not decide
whether there was forfeiture because [Mr. Fykes’s] sentence can be
affirmed under either plain error or abuse of discretion review.” Id. at 977.


                                  27
court’s explanation. United States v. Alapizco-Valenzuela, 546 F.3d 1208,

1216 (10th Cir. 2008) (quoting United States v. Muñoz-Nava, 524 F.3d

1137, 1146 (10th Cir. 2008)).

      The district court explained the variance, expressing dissatisfaction

with the criminal-history category and explaining that if the category had

been 1 level higher (4 rather than 3), the guideline range would have been

51 to 63 months. The court used that hypothetical range to arrive at a

sentence of 60 months. This approach was permissible. See United States v.

Lente, 759 F.3d 1149, 1167 (10th Cir. 2014). Thus, we conclude that the

sentence was substantively reasonable.

IV.   Disposition

      For these reasons, we affirm the conviction and sentence.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




                                  28
