*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0237p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

LEONARDO HERRERA-ZUNIGA,

 Defendant-Appellant.

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No. 08-1540

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 07-00283-001—Robert Holmes Bell, District Judge.

Argued: April 23, 2009

Decided and Filed: July 8, 2009 

Before: COLE and CLAY, Circuit Judges; CLELAND, District Judge.*

_________________

COUNSEL

ARGUED: Richard D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, ASSISTANT UNITED

STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard

D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids,

Michigan, for Appellant. Donald Daniels, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee. 

_________________

OPINION

_________________

CLAY, Circuit Judge. After Defendant, Leonardo Herrera-Zuniga (“HerreraZuniga”), pleaded guilty to illegally reentering the country after previously being

1
No. 08-1540 United States v. Herrera-Zuniga Page 2

removed subsequent to a felony conviction, in violation of 8 U.S.C. §§ 1326(a) and

1326(b)(1), the district court sentenced him to 48 months imprisonment, a term

significantly above the 24-to-30-months sentencing range recommended under the

Sentencing Guidelines. Because Herrera-Zuniga was on supervised release from a prior

felony conviction at the time of his arrest, the court also imposed a 12-month sentence

for the supervised release violation, ordering the sentences to run concurrently. On

appeal, Herrera-Zuniga challenges the procedural and substantive reasonableness of his

48-month sentence. For the reasons set forth below, we hereby AFFIRM the sentence

imposed by the district court. 

I.

On September 2, 2007, authorities stopped Herrera-Zuniga’s vehicle because of

“headlight and license plates violations.” After Herrera-Zuniga failed field sobriety

tests, officers placed him under arrest and transported him to the Oceana County Jail in

Hart, Michigan. The Oceana County Sheriff’s Department then contacted Immigration

and Customs Enforcement (“ICE”) and determined that Herrera-Zuniga was illegally

present in the United States. 

According to the presentence investigation report (“PSIR”), Herrera-Zuniga’s

2007 arrest was but the latest incident in a series of encounters with authorities over the

last ten years involving nearly identical conduct. In 1998, Herrera-Zuniga was arrested

for being a minor in possession of alcohol and was subsequently granted a voluntary

return to Mexico. In 2000, Herrera-Zuniga was arrested and convicted for operating a

vehicle while under the influence of alcohol and was subsequently deported to Mexico.

And in 2006, Herrera-Zuniga once again was arrested and convicted for illegally

reentering the United States and again was deported to Mexico. 

In addition to these three incidents, each of which resulted in Herrera-Zuniga

being removed from the United States, the PSIR also identifies a number of other

alcohol-related arrests and convictions that apparently did not result in Herrera-Zuniga’s

deportation. In 2002, Herrera-Zuniga was arrested and charged under the name of Jose
No. 08-1540 United States v. Herrera-Zuniga Page 3

1

Although properly calculating Herrera-Zuniga’s criminal history score to be 15, the probation

officer mistakenly stated in one section that Herrera-Zuniga “has amassed 16 criminal history points.”

PSIR ¶ 54. This error, however, was corrected at Herrera-Zuniga’s sentencing hearing after defense

counsel brought the inconsistency to the attention of the sentencing judge who expressly acknowledged

the error and concurred that Herrera-Zuniga’s proper criminal history score was 15. Record on Appeal

(“ROA”) vol. 2 at 8-9. 

2

The base offense level for a violation of 8 U.S.C. § 1326(a) is 8. U.S.S.G. § 2L1.2(a). The base

offense level was increased by four levels pursuant to U.S.S.G. § 2L1.2(b)(1)(D) because Herrera-Zuniga

previously was deported subsequent to a felony conviction. See PSIR ¶ 15. Herrera-Zuniga then received

a 2-level reduction pursuant to U.S.S.G. § 3E1.1(a) for accepting responsibility and expressing remorse

for his conduct. See PSIR ¶ 20. 

Jesus River-Lucio for operating a vehicle while intoxicated. A bench warrant was issued

in that case after he failed to appear on the charge, but the case was dismissed nolle

prosequi after a subsequent arrest and conviction. In 2003, Herrera-Zuniga again was

arrested and pleaded guilty to operating a vehicle while intoxicated. After he failed to

complete an alcohol treatment program while in prison, Herrera-Zuniga was ordered to

appear for an assessment for an outpatient treatment program. When he failed to appear

for the scheduled assessment, another bench warrant was issued for his arrest. 

Each of these incidents involved conduct strikingly similar to Herrera-Zuniga’s

most recent arrest. In each case, Herrera-Zuniga was present in the United States

illegally, and, in most cases, he was arrested for driving a vehicle while under the

influence of alcohol. All told, the PSIR reports that, prior to his 2007 arrest, HerreraZuniga had been sentenced to terms of 30 days, one year (with six months suspended),

90 days, 30 days, nine months, 11 months, and one year. He also has been removed

from the country on three separate occasions. 

On January 9, 2008, pursuant to a written plea agreement, Herrera-Zuniga

entered a plea of guilty. Based on his prior offenses, the PSIR calculated HerreraZuniga’s criminal history score to be 15,1

 placing him in category VI, the highest

criminal history category available under the Guidelines. Taken together with a total

offense level of 10,2

 the PSIR calculated the recommended sentencing range to be 24 to

30 months. Herrera-Zuniga did not object to these calculations. 
No. 08-1540 United States v. Herrera-Zuniga Page 4

3

Sentencing Guideline § 4A1.3(a)(4)(B) provides that, where “the court determines that the extent

and nature of the defendant’s criminal history, taken together, are sufficient to warrant an upward

departure,” the court “should structure the departure by moving incrementally down the sentencing table

to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate

to the case.”

The PSIR also noted several factors that potentially warranted an upward

departure under U.S.S.G. § 4A1.3(a),3 including that Herrera-Zuniga’s criminal history

score “appears to substantially under-represent the seriousness of Mr. Herrera-Zuniga’s

criminal history or the likelihood that he will commit future crimes.” PSIR ¶ 54. After

receiving the PSIR, the court issued a “Notice of Intent to Upward Depart Under the

Guidelines.” In that Notice, the court agreed that the “calculation of guideline

sentencing does not adequately reflect the Defendant’s Criminal History Level,” and

thus advised the parties that it was “considering . . . an upward departure from the

guidelines to more accurately reflect the Criminal History Level of the Defendant.”

ROA vol. 1 at 15.

Two days later, counsel for Herrera-Zuniga, Assistant Federal Public Defender

Richard D. Stroba (“Stroba”), submitted a sentencing memorandum on Herrera-Zuniga’s

behalf. ROA vol. 1 at 16-21. That memorandum briefly noted Herrera-Zuniga’s

acceptance of responsibility but offered no further argument under any of the relevant

18 U.S.C. § 3553(a) factors. For instance, the memorandum did not attempt to explain

that Herrera-Zuniga claimed to have returned to the United States to earn money to

support his family back in Mexico, including his “sick” daughter, despite the fact that

the PSIR noted this issue on multiple occasions. See PSIR ¶¶ 12, 45-46. Nor did the

sentencing memorandum respond to the suggestion that Herrera-Zuniga’s criminal

history score under-represented the seriousness of his past criminal conduct. Instead,

defense counsel asked only that the court “give due deference to the parsimony principle

of the sentencing statute.” ROA vol. 1 at 17. 

More troubling than what the memorandum did not say, however, is what it did

say: 

In lieu of further commentary or a likely useless review of the 18 U.S.C.

§ 3553(a) factors, counsel for the Defendant simply refers the Court to
No. 08-1540 United States v. Herrera-Zuniga Page 5

the attached letter sent to Mr. Herrera-Zuniga this past week. For better

or worse, it sets forth the position the Defendant has placed himself in

before this Court and society. 

ROA vol. 1 at 16-17. The letter to which the sentencing memorandum refers was sent

on April 2, 2008 by Stroba to Herrera-Zuniga. Id. at 19-21. Although the letter

expressly states that it may contain “Attorney/Client Privileged Information,” id. at 19,

Stroba nevertheless attached the letter to the sentencing memorandum and submitted it

to the court. Given the tenor and substance of the letter, we do not understand how

Stroba could have felt that it was in his client’s interests to submit it to the court. In fact,

the letter reads more like an argument by the prosecutor in favor of a harsher sentence

than it does an argument by the defense: 

My duty now is to try to write a sentencing memorandum on your

behalf. I knew this day was coming and I knew it would be a difficult

task, but for the first time in my two and a half years of service to the

Defenders Office, I must admit that I am completely stymied (i.e.,

without a place to go). There is not one thing about your situation that

lends itself to a positive thought, save that you have a good work history.

You are clearly an alcoholic with either no ability or desire to quit

drinking, for, surely if you wanted to or could, you would at least do so

as a means of staying in this country. . . . At some point either you will

stop consuming alcohol on your own, or you will develop cirrhosis of the

liver and you will die a slow, painful, horrible death. And then you will

be done drinking for sure. 

The problem is that for the rest of society, in the meantime,

before you stop drinking, one way or another, you will continue to drink

alcohol to excess and then drive motor vehicles. You have five

convictions for drunk driving. By the grace of God, you have not been

involved in a serious accident. Unfortunately, it is only by that divine

intervention that that is the case. And every time you take the wheel

either impaired or completely inebriated, you defy the odds. It is only a

matter of time before you kill or seriously injure yourself (perhaps that

is your goal). The concern for the court, I, and the rest of society is that

you are more likely to kill, maim, or injure some innocent driver or

passenger in another vehicle or a bystander. There would be no

recovery for that victim or family. There would be no mercy for you. 

And then there is the overriding problem to all of this. You are

not supposed to be in this country in any event. I am not talking about

just coming here without documentation to earn a living that you could

not earn in Mexico. I am talking about the ordered deportation of you on

at least two occasions.
No. 08-1540 United States v. Herrera-Zuniga Page 6

4

Demonstrating just how unorthodox Stroba’s sentencing memorandum was, the prosecution,

when asked by the court whether it had anything to add regarding sentencing, stated: 

Your honor, we did not submit a sentencing memorandum because I feel that the

presentence report and the defendant’s sentencing memorandum correctly identified the

defendant’s principal issue, that being alcoholism, and a failure to comply with the laws

of the United States with respect to being present here and staying off the highways

 

Id. at 19-20 (emphasis added). If this gratuitous admonishment of his client were not

enough, Stroba then continues: 

I am truly at a loss to figure out how to explain to Chief Judge

Bell that somehow or in some manner, he should not treat you most

severely. Perhaps before the 11th of April you will have formulated

some statement or some explanation (that has completely escaped me) in

the face of these facts. Your action returning to the U.S. in 2007 was

wrong. Your drinking and driving upon that return (and to return to this

district as well) is just plain stupid.

I am sorry to be so blunt, but I have to honest with you, your case

has left me without an expressible empathy. For this I am sorry because

it leaves me almost unable to advocate on your behalf. (I say “almost”

because as you are one of God’s creatures, any person can advocate for

mercy or lenience premised upon your basic humanity. But that job is a

tough one, made ever more so by your conduct.)

Id. at 20 (emphasis added). Stroba then returns to chastising Herrera-Zuniga, stating

“you are certainly at the bottom of society’s hierarchy, [and] you have done very little

on your own behalf to be anywhere but there.” Id. Near the end of the letter, Stroba

pointedly states: “There simply is not a great deal of hope and optimism to be found

here. My verbal statement to the Court will be equally limited.” Id. at 21. 

At the sentencing hearing, the court disposed of the supervised release violation

related to Herrera-Zuniga’s 2006 conviction by revoking his supervised release and

sentencing him to 12 months imprisonment. The court then turned its attention to the

illegal reentry charge. After conducting the requisite colloquy to ensure that HerreraZuniga understood his rights and that he had reviewed and understood the PSIR, the

court accepted Herrera-Zuniga’s guilty plea. The court then asked defense counsel

whether he had anything to add to the sentencing memorandum. Stroba acknowledged

that his sentencing memorandum “was a little different,”4

 but explained that he “wanted
No. 08-1540 United States v. Herrera-Zuniga Page 7

when he’s been drinking. So I really have little to add to that. 

ROA vol. 3 at 11 (emphasis added). The government’s brief to this Court also quotes from Stroba’s letter

at length as support for the district court’s decision to upward depart.

5

The statute provides a maximum sentence of “not more than 10 years.” 8 U.S.C. § 1326(b)(1).

to provide Mr. Herrera-Zuniga with some things to think about before coming to

sentencing today and [advise him of] what this Court faces in terms of sentencing him

based upon his conduct.” ROA vol. 3 at 10. Beyond that, Stroba stated only:

We would ask the Court or comment that within the parameters of the

recommended sentence and the advisory guidelines here, even the high

end, [and] considering that [Herrera-Zuniga is] going to serve 12 months

on the supervised release violation as well, that there’s a pretty

significant amount of time this Court has within those parameters to

sentence him. 

Id. Finally, Stroba asked the Court to request that the Bureau of Prisons provide

Herrrera-Zuniga substance abuse treatment. Id.

During the sentencing hearing, Stroba did not point to any § 3553(a) factors that

may have warranted a more lenient sentence. Stroba also did not argue that the PSIR’s

calculation of Herrrera-Zuniga’s criminal history score adequately represented the

seriousness of Herrrera-Zuniga’s past criminal conduct. 

In pronouncing sentence, the district court noted that Herrera-Zuniga was

“appropriately” placed in criminal history category VI, but expressed “astonish[ment]”

that the base offense level prescribed under Sentencing Guideline § 2L1.2(a) for a

violation of 8 U.S.C. § 1326(a) “is so low.” ROA vol. 3 at 12. Observing that the statute

“carries a maximum [sentence] of 120 months,”5

 the court characterized the sentencing

range recommended under the Guidelines as “arbitrar[y]” and “considerably out of

balance” with Congress’ intent. Id. at 12. According to the court, the “great variance”

between the statutory maximum penalty and the “astonishingly” low offense level set

forth in § 2L1.2(a) demonstrates that the Sentencing Commission had failed to fulfill its

traditional “sentencing function,” and had instead “arbitrarily pick[ed] a number and
No. 08-1540 United States v. Herrera-Zuniga Page 8

assign[ed] that number to [this] criminal statute.” Id. The court concluded that “there’s

not a whole lot of persuasiveness in that.” Id. 

 Rejecting the arbitrary “picking and choosing that the Commission has done”

in determining the base offense level for this offense, the court instead chose to exercise

its “authority to step away from that and look at the reality of the situation that Mr.

Herrera-Zuniga finds himself in in this matter.” Id. at 13. Observing that the sentencing

range recommended under the Guidelines was advisory only, the court explained that

its duty was “to impose a sentence sufficient to comply with the federal sentencing

statute, not the guidelines . . . .” Id. The district court’s rationale for rejecting the

sentencing range recommended under the Guidelines thus plainly included a categorical,

policy-based disagreement with the base offense level prescribed under U.S.S.G.

§ 2L1.2(a). 

 In addition, the court also found that a harsher sentence was warranted in light

of the “unique circumstances of this case,” including Herrera-Zuniga’s “egregious”

criminal history and his high likelihood of recidivism. ROA vol. 3 at 13-14 (expressing

concern that “this offense is a repeat performance of earlier criminal behavior”). The

court also found that Herrera-Zuniga’s criminal history score under-represented the

seriousness of his prior criminal conduct because the PSIR described numerous alcoholrelated incidents “that did not result in convictions.” Id. at 14 (pointing to PSIR ¶¶ 26-

34, 39-40). In light of his extensive criminal history, the court concluded that HerreraZuniga “has absolutely no respect for the laws of the United States, none whatever

[sic].” Id. The court also took into account “the public’s need for protection[,] not only

from [Herrera-Zuniga’s] unlawfulness in coming into this country without permission,

but [also from] his violating the laws of this country while he is here . . . .” Id. at 13.

Considering Herrera-Zuniga’s repeated illegal return to the United States and his

repeated arrests on alcohol-related charges, the court concluded that “there is every

reason to believe [that the chosen] sentence should be punitive and should in fact be a

deterrent.” Id. at 14. 
No. 08-1540 United States v. Herrera-Zuniga Page 9

Considering all of these various factors, the court sentenced Herrera-Zuniga to

48 months imprisonment on the illegal reentry charge, and ordered that this sentence was

to run concurrently with the 12-month sentence imposed for the supervised release

violation. 

After pronouncing sentence, the sentencing judge, as required by United States

v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004), asked the parties whether they had “[a]ny

legal objection to the sentence being imposed.” ROA vol. 3 at 15. In response, defense

counsel stated: “Your honor, I hesitate, but I suppose the Court having given notice of

an intent to upward depart, it did not give us a final guideline range. I don’t know if the

Court cares to, but I assume that under Kimbrough or Gall that may be a necessary

consideration.” Id. The court responded by stating: “You have a right to appeal this

sentence, Mr. Herrera.” Id.

II.

On appeal, Herrera-Zuniga challenges his sentence on both procedural and

substantive grounds. As to the procedural aspects of his sentence, Herrera-Zuniga

claims that the district court erred by failing to specify whether its decision to impose

a sentence above the advisory Guidelines range was based on a “variance” under 18

U.S.C. § 3553(a) or a “departure” under U.S.S.G. § 4A1.3. Herrera-Zuniga also claims

that, to the extent that his sentence is based on a departure under § 4A1.3, the court

improperly concluded that his criminal history score under-represented the seriousness

of his prior criminal conduct, and that the court improperly failed to specify a final,

adjusted sentencing range. In challenging the substantive reasonableness of his

sentence, Herrera-Zuniga claims that the district court lacked the authority to reject on

policy grounds the base offense level prescribed under § 2L1.2(a), and that, as a result

of this error, the district court imposed a sentence that is “greater than necessary” to

achieve the sentencing goals identified by Congress in § 3553(a).

To determine what standard of review applies to each of these claims, we first

must determine whether Herrera-Zuniga preserved these claims for appeal. Under the

rule we adopted in Bostic, district courts are required, after announcing sentence, to “ask
No. 08-1540 United States v. Herrera-Zuniga Page 10

the parties whether they have any objections to the sentence . . . that have not previously

been raised.” 371 F.3d at 872. Where the sentencing judge complies with this

procedure, the defendant generally forfeits the right to challenge on appeal any

procedural errors to which he did not object at the time of sentencing. See United States

v. Vonner, 516 F.3d 382, 385-86, 390-91 (6th Cir 2008) (en banc). A defendant,

however, is not required to object to the substantive reasonableness of his sentence to

preserve that issue for appeal. See United States v. Penson, 526 F.3d 331, 337 (6th Cir.

2008) (“[D]efendants do not need to raise the claim of substantive unreasonableness

before the district court to preserve the claim for appeal . . . .”).

After pronouncing Herrera-Zuniga’s sentence, the sentencing judge complied

with the Bostic rule and provided the parties an adequate opportunity to raise “any legal

objection” to the sentence just pronounced. Availing himself of that opportunity,

defense counsel objected on the ground that the court had failed to provide “a final

guideline range.” By asserting that objection, defense counsel preserved HerreraZuniga’s right to challenge on appeal that particular alleged error. However, defense

counsel’s objection did not encompass the full range of procedural errors that HerreraZuniga raises on appeal. Consequently, there is a question as to what standard of review

applies to those other claims. 

Strictly construed, the forfeiture rule approved in Vonner could be read to imply

that Herrera-Zuniga has forfeited any procedural claims that he failed to specifically

identify in response to the Bostic question. However, we do not read the rule adopted

in Vonner so strictly. Under the circumstances, we find that Vonner’s forfeiture rule

applies only to certain claims that defense counsel failed to assert below. 

At no point during the sentencing hearing or in his sentencing memorandum did

defense counsel ever argue that the PSIR’s calculation of Herrera-Zuniga’s criminal

history score adequately represented the seriousness of Herrera-Zuniga’s prior criminal

conduct. The record indicates that the PSIR noted this issue as a possible basis for an

upward departure, and the court’s Notice of Intent to Depart also advised the parties that

it would be considering this issue at sentencing. Nevertheless, Herrrera-Zuniga failed
No. 08-1540 United States v. Herrera-Zuniga Page 11

to challenge that issue. Nor did defense counsel raise this issue in response to the Bostic

question. Because defense counsel never made any argument regarding the adequacy

of the PSIR’s calculation of his client’s criminal history, despite being given an adequate

opportunity to do so, Herrera-Zuniga has forfeited his right to raise that claim on appeal.

Consequently, we must review that issue for plain error only. 

Although Herrrera-Zuniga has forfeited his right to challenge the court’s

determination of the inadequacy of his criminal history score on appeal, it would be

inappropriate to apply Vonner’s forfeiture rule to Herrera-Zuniga’s other

claims—specifically, Herrera-Zuniga’s claim that the district court lacked the authority

to categorically reject the base offense level prescribed under § 2L1.2(a)—given the

lingering confusion in this circuit as to whether such claims are “procedural” or

“substantive” challenges. In United States v. Webb, 403 F.3d 373 (6th Cir. 2005), this

Court’s first post-Booker attempt to clarify the scope of the reasonableness inquiry, we

concluded that “[a] district judge act[s] unreasonably by, for example, selecting the

sentence arbitrarily, basing the sentence on impermissible factors, failing to consider

pertinent § 3553(a) factors, or giving an unreasonable amount of weight to any pertinent

factor.” Id. at 385 (footnotes omitted). Our decision in Webb, however, did not

distinguish between the “procedural” and “substantive” components of our

reasonableness inquiry. See Vonner, 516 F.3d at 397 (Clay, J., dissenting) (explaining

that the procedural and substantive inquiries initially were interrelated aspects of a

unified reasonableness review). Although subsequent decisions have imposed that

distinction, those decisions have not drawn that line consistently. In fact, a review of our

subsequent sentencing decisions demonstrates that we confusingly have identified the

exact same factors as exclusively part of both the procedural and substantive inquiries.

See, e.g., United States v. Carson, 560 F.3d 566, 585 (6th Cir. 2009) (identifying “failing

to consider the § 3553(a) factors” as a basis for finding a sentence “procedurally

unreasonable” and “fail[ing] to consider pertinent § 3553(a) factors” as a basis for

finding a sentence “substantively unreasonable”). As a result, the procedural and

substantive components of our reasonableness inquiry “appear to overlap.” United

States v. Jones, 489 F.3d 243, 252 n.3 (6th Cir. 2007); United States v. Liou, 491 F.3d
No. 08-1540 United States v. Herrera-Zuniga Page 12

6

See, e.g., United States v. Funk, 534 F.3d 522, 530 (6th Cir. 2008) (characterizing claim

challenging the district court’s categorical rejection of the career offender guidelines as relating to the

substantive reasonableness of the defendant’s sentence), vacated on grant of reh’g en banc, No. 05-3708

(Dec. 18, 2008), appeal dismissed, 560 F.3d 619 (6th Cir. 2009) (“The opinion of the panel, which was

vacated pursuant to the court's order of December 18, 2008 granting en banc review, 6 Cir. R. 35(a),

remains vacated.”).

334, 337 (6th Cir. 2007) (recognizing that “the border between factors properly

considered ‘substantive’ and those properly considered ‘procedural’ is blurry if not

porous”); see also United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009) (“A

challenge to a court’s decision to impose a consecutive or a concurrent sentence is not

easily classified as ‘substantive’ or ‘procedural.’ This is so because an evaluation of the

substantive reasonableness of a decision to impose a consecutive sentence depends

heavily upon an evaluation of the procedural reasonableness.”). The confusion that this

creates for defendants demands that we not apply Vonner’s forfeiture rule in this

circumstance.

The circumstances of this case typify the confusion caused by this “overlap.”

Herrera-Zuniga characterizes his claim that the district court lacks the authority to

categorically reject the base offense level prescribed under the Guidelines as bearing on

the substantive reasonableness of his sentence. Although a number of our previous

decisions support that characterization,6

 the Supreme Court’s recent sentencing decisions

strongly suggest that such claims are more properly construed as procedural challenges

because they relate to the sentencing court’s understanding and explanation of its

authority to deviate from the Guidelines. See Gall v. United States, 552 U.S. 38, 128 S.

Ct. 586, 597 (2007) (noting that the district court’s “explanation for any deviation from

the Guidelines range” is an aspect of the “procedural error” inquiry); Kimbrough v.

United States, 552 U.S. 85, 128 S. Ct. 558, 575-76 (2007) (considering a similar

argument in the context of the crack cocaine guideline and holding that the district court

“rested its sentence on the appropriate considerations and ‘committed no procedural

error’” (quoting Gall, 128 S. Ct. at 600)). In light of this lingering confusion, it would

be inappropriate and patently unfair to apply Vonner in this context.
No. 08-1540 United States v. Herrera-Zuniga Page 13

 Our decisions in Bostic and Vonner support this pragmatic application of

Vonner’s forfeiture rule. As a general proposition, the Federal Rules of Criminal

Procedure require that a defendant object to rulings by the sentencing judge in order to

preserve them for appeal. Fed. R. Crim. P. 51(b). Where a defendant fails to properly

preserve an issue for appeal, that claim is subject to review for plain error only. Fed. R.

Crim. P. 52(b). Nothing in the Federal Rules, however, expressly requires that the

defendant, once his sentence is imposed, specifically identify each of the distinct

procedural errors that the court might have committed in pronouncing sentence. Rather,

that is a rule developed by this Court under “our supervisory powers over the district

courts.” Bostic, 371 F.3d at 872. 

As we explained in Bostic, however, this rule was adopted entirely for practical

reasons. Specifically, we thought that the Bostic procedure would help bring potential

errors made during sentencing to the attention of the district court, and thus would

“permit[] the district court to correct on the spot any error it may have made” in

pronouncing sentence. Id. at 873 (citation omitted). We also adopted the rule to help

create a more reliable record for appeals, which we believed would help “guid[e]

appellate review.” Id. In putting teeth to this rule in Vonner, we again emphasized the

“sensible and useful feature[s]” of the Bostic process, explaining that requiring

defendants to raise certain types of objections below has “the salutary effect of

encouraging the resolution of those issues at the sentencing hearing—when they matter

most and when they can be most readily resolved.” 516 F.3d at 391. In fact, in

attempting to define the contours of this requirement, our decision in 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. 

 Because the Bostic procedure and the Vonner forfeiture rule were adopted to

serve practical ends, it would be inappropriate to construe those requirements as formal

and inflexible procedural protocols. To construe those requirements more strictly would

ignore Vonner’s “common-sense” approach, and would turn a rule that undoubtedly was
No. 08-1540 United States v. Herrera-Zuniga Page 14

7

We fail to see how requiring defense counsel to object after sentencing that the district court

lacks the authority to deviate from the Guidelines based on a categorical, policy-based disagreement with

the severity of the sentencing range would help clarify the record or encourage the resolution of the issue

at the sentencing hearing. Regardless of whether defense counsel had asserted a more detailed objection

at the time of sentencing, the sentencing transcript indicates that the district court was not going to correct

this issue “on the spot,” as the sentencing judge already had stated that he believed that he had the

authority to reject the advisory sentencing range on this basis. In this circumstance, it is difficult to

imagine any practical reason to require a defendant to raise an objection that is patently futile. Vonner

does not require such formalism.

adopted for practical reasons into a meaningless formality, something we are loathe to

do. 

 Respecting Vonner’s command that we make a “common-sense application of

the plain-error doctrine,” we simply cannot find that Herrera-Zuniga has forfeited his

claim regarding the court’s lack of authority to reject the advisory Guidelines range on

policy grounds. Given the nature of this claim, none of the practical ends identified in

Bostic and Vonner would have been furthered even if defense counsel had raised this

issue below.7

 Although defense counsel did not raise this particular claim of procedural

error below, it is not subject to plain-error review.

III.

Those claims not forfeited under Vonner are subject to the traditional standard

of review that governs sentencing challenges. After United States v. Booker, 543 U.S.

220 (2005), the sentencing Guidelines are “advisory” only, and thus a district court is

no longer bound by the sentencing range prescribed thereunder. Id. at 245. Although

recognizing that the federal sentencing statute still “requires a sentencing court to

consider Guidelines ranges,” Booker determined that sentencing judges are permitted “to

tailor the sentence in light of other statutory concerns as well.” Id. at 245 (citing

18 U.S.C. § 3553(a)). In light of this authority, we “review a district court’s sentencing

determination, ‘under a deferential abuse-of-discretion standard,’ for reasonableness[.]”

United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (quoting Gall, 128 S. Ct. at

591); see also Rita v. United States, 551 U.S. 338, 347-51 (2007). This standard applies

“‘[r]egardless of whether the sentence imposed is inside or outside the Guidelines range

. . . .’” United States v. Higgins, 557 F.3d 381, 397 (6th Cir. 2009) (quoting Gall,
No. 08-1540 United States v. Herrera-Zuniga Page 15

128 S. Ct. at 597). Thus, a district court’s decision to exercise its discretion to depart

from the advisory Guidelines, either upward or downward, is reviewed for

reasonableness. See United States v. Smith, 474 F.3d 888, 894 (6th Cir. 2007)

(“Therefore, it is here that we will incorporate our post-Booker jurisprudence to our

review of upward departures under § 4A1.3.”).

The reasonableness of a district court’s sentence “has both substantive and

procedural components.” Jones, 489 F.3d at 250. Consequently, our “reasonableness

review requires [inquiry] into both ‘the length of the sentence’ and ‘the factors evaluated

and the procedures employed by the district court in reaching its sentencing

determination.’” Liou, 491 F.3d at 338 (quoting Webb, 403 F.3d at 383). In conducting

this review, we must “‘first ensure that the district court committed no significant

procedural error’ and ‘then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.’” United States v. Smith, 516 F.3d 473,

476 (6th Cir. 2008) (quoting Gall, 128 S. Ct. at 597).

 In order for a defendant’s sentence to be procedurally reasonable, the district

court cannot presume that the sentencing range recommended under the Guidelines is

mandatory or even reasonable. See Gall, 128 S. Ct. at 596-97 (sentencing judges “may

not presume that the Guidelines range is reasonable”); Bolds, 511 F.3d at 578. Instead,

the sentencing court must “make an individualized assessment [of the appropriate

sentence] based on the facts presented.” Gall, 128 S. Ct. at 597. In making that

determination, the sentencing judge is obliged to consider the unique circumstances of

the defendant’s case in light of the factors set out by Congress in 18 U.S.C. § 3553(a).

See Bolds, 511 F.3d at 578. 

Although the Sentencing Guidelines are advisory, the Supreme Court

nevertheless has instructed that the sentencing range recommended thereunder must be

“the starting point and initial benchmark” of the district court’s sentencing analysis.

Gall, 128 S. Ct. at 596; see also Bolds, 511 F.3d at 579. The Guidelines provide

important guidance for district courts in making individualized sentencing

determinations because, “in the ordinary case, the Commission’s recommendation of a
No. 08-1540 United States v. Herrera-Zuniga Page 16

sentencing range will ‘reflect a rough approximation of sentences that might achieve

§ 3553(a)’s objectives.’” Kimbrough, 128 S. Ct. at 574 (quoting Rita, 551 U.S. at 350).

For that reason, sentences falling within the advisory Guidelines range may be

considered presumptively reasonable. Rita, 551 U.S. at 347-51. Sentences that deviate

from the Guidelines, however, are afforded no such presumption. Rather, in determining

whether a given deviation is reasonable, we must take into account the degree of

variance from the sentencing range recommended under the Guidelines. See Gall, 128

S. Ct. at 597 (“We find it uncontroversial that a major departure should be supported by

a more significant justification than a minor one.”); see also United States v. McMannus,

436 F.3d 871, 874 (8th Cir. 2006) (“[T]he farther the district court varies from the

presumptively reasonable guidelines range, the more compelling the justification based

on the § 3553(a) factors must be.”); United States v. Hernandez-Villanueva, 473 F.3d

118, 123 (4th Cir. 2007) (“When we review a sentence outside the advisory sentencing

range – whether as a product of a departure or a variance – we consider whether the

sentencing court acted reasonably both with respect to its decision to impose such a

sentence and with respect to the extent of the divergence from the sentencing range.”).

Accordingly, the amount of deference that is due in any particular case varies: in those

cases that fall outside the Guidelines’ “heartland,” the district court’s decision to deviate

from the advisory range is entitled to the “greatest respect,” whereas a sentence that

departs from the advisory range in a “mine-run case” warrants “closer review.”

Kimbrough, 128 S. Ct. at 575 (quoting Rita, 551 U.S. at 351).

In determining the reasonableness of the district court’s decision to deviate from

the Guidelines, we must consider whether the sentence reflects the considerations set

forth in § 3553(a). Gall, 128 S. Ct. at 596-97. We also must evaluate any departure

from the advisory Guidelines range in light of the Sentencing Commission’s

determination that an upward departure might be warranted where “reliable information

indicates that the defendant’s criminal history category substantially under-represents

the seriousness of the defendant’s criminal history or the likelihood that the defendant

will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). In fact, this Court has reasoned that
No. 08-1540 United States v. Herrera-Zuniga Page 17

a departure is “expressly encouraged” under § 4A1.3 where the recommended

sentencing range does not adequately account for the defendant’s past criminal conduct.

See United States v. Barber, 200 F.3d 908, 912 (6th Cir. 2000) (“a departure upon this

basis is expressly encouraged by the Sentencing Guidelines”) (citing United States v.

Pluta, 144 F.3d 968, 977 (6th Cir. 1998)); see also United States v. Dixon, 318 F.3d 585,

588 (4th Cir. 2003).

In conducting this review, we must bear in mind that reasonableness “is a flexible

standard which ‘involves what is quintessentially a judgment call. . . . Appellate review

must occur with full awareness of, and respect for, the trier’s superior “feel” for the case.

We will not lightly disturb decisions to depart, or not, or related decisions implicating

degrees of departure.’” United States v. Thomas, 24 F.3d 829, 833 (6th Cir. 1994)

(quoting United States v. Joan, 883 F.2d 491, 494 (6th Cir. 1989)). In other words, we

must accord “substantial deference” to the district court’s decision to depart because

“questions concerning sentencing departures necessarily address the district court’s

‘refined assessment of the many facts bearing on the outcome, informed by its vantage

point and day-to-day experience in criminal sentencing.’” Pluta, 144 F.3d at 977

(quoting Koon v. United States, 518 U.S. 81, 98 (1996)). 

IV.

Herrera-Zuniga asserts a number of claims alleging that the district court

committed procedural error in deviating from the advisory Guidelines range. We review

each in turn.
No. 08-1540 United States v. Herrera-Zuniga Page 18

8

As explained above, Herrera-Zuniga characterizes this claim as relating to the substantive

reasonableness of his sentence. Under Kimbrough and Gall, however, it is apparent that this claim is more

properly construed as a procedural challenge. 

9

This appears to be an issue of first impression in this Circuit. See United States v. Vandewege, 561 F.3d 608, 611 (6th Cir. 2009) (Gibbons, J., concurring) (“Applied to the present case, this debate over

Kimbrough and Spears’s portent is purely academic.”); United States v. Johnson, 553 F.3d 990, 996 (6th

Cir. 2009) (“express[ing] no opinion on whether the principles articulated in Spears may apply outside of

the crack-cocaine context to allow district courts to develop categorical alternatives to other sentencing

Categorical, Policy-Based Disagreement with the Guidelines 

First, Herrera-Zuniga claims that the district court erred in categorically rejecting

the offense level prescribed under the Guidelines for illegal reentry offenses based on

its policy-based disagreement with the severity of the sentencing range that the offense

level yielded.8

The sentencing transcript leaves no doubt that the district court’s policy-based

disagreement with the severity of the recommended sentencing range was a major factor

in its decision to impose a harsher sentence. In pronouncing sentence, the district court

expressed “astonish[ment]” that the offense level prescribed under the Sentencing

Guidelines “is so low.” Noting the 10-year maximum penalty provided for under

8 U.S.C. § 1326(b)(1), and pointing to the more severe sentencing ranges prescribed

under the Guidelines for other offenses that carry a similar statutory maximum penalty,

the district court rejected the 24-to-30-month advisory range as “arbitrar[y]” and

“considerably out of balance” with the statute. 

In its recent decision in Spears v. United States, ___ U.S. ___ , 129 S. Ct. 840

(2009), the Supreme Court unequivocally recognized that district courts possess the

“authority to vary from the crack cocaine Guidelines based on a policy disagreement

with them, and not simply based on an individualized determination that they yield an

excessive sentence in a particular case.” Id. at 843 (emphasis in original). The question

we confront here is whether the authority recognized in Spears to reject on policy

grounds an otherwise-applicable aspect of the Sentencing Guidelines is limited to the

crack cocaine context.9

 We hold that it is not. 
No. 08-1540 United States v. Herrera-Zuniga Page 19

enhancements contained in the Guidelines”). Although we previously confronted this issue in United

States v. Funk, supra (addressing the authority of the district courts to reject categorically the career

offender enhancement set forth in U.S.S.G. § 4B1.1), the panel decision in that case was vacated by the

granting of en banc review, see 6 Cir. R. 35(a), and the panel decision remains vacated even though the

government has withdrawn its appeal, see Funk, 560 F.3d at 619 (“The opinion of the panel, which was

vacated pursuant to the court’s order of December 18, 2008 granting en banc review, 6 Cir. R. 35(a),

remains vacated.”).

In Spears, the Supreme Court vacated an Eighth Circuit decision holding that the

district court had no authority to substitute on policy grounds a different ratio for the

then-applicable 100:1 crack-to-powder sentencing ratio. Id. at 842. In reaching that

conclusion, the Court made clear that, at least “with respect to the crack cocaine

Guidelines, a categorical disagreement with and variance from the Guidelines is not

suspect.” Id. at 843. Clarifying its holding in Kimbrough, the Court explained that

sentencing judges possess the authority to “categorically” reject the sentencing range

prescribed by the Guidelines, even in “a mine-run case where there are no ‘particular

circumstances’ that would otherwise justify a variance from the Guidelines’ sentencing

range.” Id. at 844 (quoting Kimbrough, 128 S. Ct. at 576). 

Although Kimbrough and Spears both addressed this issue in the context of the

crack-powder cocaine disparity, the Court’s decisions in those cases suggest that this

authority is not limited to that context. In Kimbrough, for instance, the Court expressly

noted that, because the Guidelines are advisory only, “as a general matter, ‘courts may

vary from Guidelines ranges based solely on policy considerations, including

disagreements with the Guidelines.’” 128 S. Ct. at 570 (internal modifications and

citation omitted) (emphasis added). Kimbrough’s recognition of the broad authority of

sentencing judges reaffirmed the Court’s holding in Rita that district courts could depart

from the Guidelines whenever “the Guidelines sentence itself fails properly to reflect

§ 3553(a) considerations.” 551 U.S. at 351. And in Spears, the Court justified its

holding by explaining that, unless sentencing courts were given the authority to decline

to follow the Guidelines on policy grounds, there were two possible outcomes: “Either

district courts would treat the Guidelines’ policy embodied in the crack-to-powder ratio

as mandatory, believing that they are not entitled to vary based on ‘categorical’ policy

disagreements with the Guidelines, or they would continue to vary, masking their
No. 08-1540 United States v. Herrera-Zuniga Page 20

categorical policy disagreements as ‘individualized determinations.’” 129 S. Ct. at 844.

Observing that the former outcome contradicted its holding in Kimbrough, and that the

latter represented “institutionalized subterfuge,” the Court concluded that “[n]either is

an acceptable sentencing practice.” Id. This reasoning applies equally to other aspects

of the Sentencing Guidelines. 

In any event, even if Kimbrough and Spears could be read more narrowly, the

authority of district courts to reject the Guidelines on policy grounds follows inexorably

from the Court’s holding in Booker that the Guidelines are advisory only. As we have

recognized, Booker and its progeny emphatically “empowered” the district courts to

reject the recommendations of the Sentencing Commission. See Vonner, 516 F.3d at 392

(observing that “Booker empowered district courts, not appellate courts and not the

Sentencing Commission” (emphasis added)). To construe the district courts’ authority

more narrowly, as Herrera-Zuniga argues we should, thus would run counter to a

fundamental principle underlying the Supreme Court’s post-Booker sentencing

jurisprudence. See id. (observing that “the central lesson from [the Court’s post-Booker]

decisions [is] that district courts have considerable discretion in this area and thus

deserve the benefit of the doubt when we review their sentences and the reasons given

for them.”); United States v. Jones, 531 F.3d 163, 172 (2d Cir. 2008) (“The Supreme

Court has clearly signaled that district courts enjoy considerable discretion in identifying

the grounds that can justify a non-Guidelines sentence.”).

We thus see no reason to limit the authority recognized in Kimbrough and

confirmed in Spears to the crack-powder cocaine context. Nor do we stand alone in that

regard. In fact, “[a]mong those that have taken a definitive position, our sister circuits

appear to be uniformly in accord with this view.” United States v. Lente, No. 07-2035,

2009 U.S. App. LEXIS 9391, at *46 (10th Cir. April 29, 2009) (Holmes, J., concurring)

(citing United States v. Cavera, 550 F.3d 180, 196-97 (2d Cir. 2008) (upholding district

court’s variance based on its finding that the Guidelines failed to take into account “the

greater need for deterrence in New York” for firearms offenses because its strict firearms

laws had produced a comparatively “more profitable black market in firearms”); United
No. 08-1540 United States v. Herrera-Zuniga Page 21

States v. Tankersley, 537 F.3d 1100, 1113 (9th Cir. 2008) (applying Kimbrough to

conclude that the district court’s “decision to depart—based on its desire to punish

terrorist activities directed at private conduct in a manner similar to how it punished

terrorist activities direct [sic] at government conduct—did not render [the defendant’s]

sentence per se unreasonable”); United States v. Herrera-Garduno, 519 F.3d 526, 530

(5th Cir. 2008) (relying on Kimbrough to hold the district court’s policy disagreement

“with how ‘drug trafficking offenses’ are defined under § 2L1.2” provided a “sufficient

reason to impose a non-Guidelines sentence ”)); see also United States v. Boardman, 528

F.3d 86, 87-88 (1st Cir. 2008) (holding that Kimbrough granted district courts “broader

freedom” to determine whether prior convictions qualify as predicate “crimes of

violence” for purposes of the career offender Guideline). 

That district courts possess the authority to categorically reject the Guidelines,

however, does not necessarily mean that it was proper to exercise that authority in this

case. Although the Guidelines are advisory, they still provide important guidance for

district courts. See Kimbrough, 128 S. Ct. at 574 (recognizing that the Sentencing

Commission plays a “key role” and “fills an important institutional role”); Gall, 128 S.

Ct. at 596 (“As a matter of administration and to secure nationwide consistency, the

Guidelines should be the starting point and the initial benchmark.”). Consequently, we

must scrutinize closely any decision to reject categorically the Sentencing Commission’s

recommendations. See Spears, 129 S. Ct. at 843 (explaining that “an ‘inside the

heartland’ departure (which is necessarily based on a policy disagreement with the

Guidelines and necessarily disagrees on a ‘categorical basis,’) may be entitled to less

respect”). Our best guidance in this regard is Kimbrough, where the Court found that

the district court’s rejection of the crack cocaine Guidelines was reasonable “because

those Guidelines do not exemplify the Commission’s exercise of its characteristic

institutional role.” 128 S. Ct. at 575. In other words, a categorical, policy-based

rejection of the Guidelines, even though entitled to “less respect,” nevertheless is

permissible where the guidelines in question “do not exemplify the Commission’s

exercise of its characteristic institutional role.” Id.; see United States v. Rodriguez, 527

F.3d 221, 227 (1st Cir. 2008) (finding that the Guidelines’ fast-track departure scheme
No. 08-1540 United States v. Herrera-Zuniga Page 22

did not “exemplify the [Sentencing] Commission’s exercise of its characteristic

institutional role,” and thus it “deserve[d] less deference than the sentencing guidelines

normally attract”). 

 Although this may not be the only circumstance in which sentencing courts are

authorized to reject the Guidelines on policy grounds, it is sufficient to support the

district court’s decision in this case. As explained above, the district court rejected the

advisory Guidelines range on the grounds that the base offense level prescribed under

§ 2L1.2(a) was arbitrary and out of balance with Congress’ determination of the

seriousness of this type of offense. In other words, before considering any

individualized sentencing factors, the court was unpersuaded that the offense level

chosen by the Sentencing Commission fulfilled the sentencing goals set forth by

Congress in § 3553(a). Under Kimbrough and Spears, that is an adequate and

appropriate basis for refusing to follow the advisory Guidelines range. 

Failure to Distinguish Between “Departure” and “Variance”

Second, Herrera-Zuniga asserts that the court committed procedural error by

failing to adequately explain its methodology for calculating his sentence. In particular,

he claims that the district court was required to specify whether its decision to impose

an above-Guidelines sentence was a “departure” under U.S.S.G. § 4A1.3 or a “variance”

based on the court’s consideration of the factors enumerated in 18 U.S.C.§ 3553(a). To

the extent that the district court imposed an above-Guidelines sentence based on a

departure under § 4A1.3(a), Herrera-Zuniga also challenges the district court’s failure

to specify a “final offense level.”

This Court has recognized the distinction between sentencing departures under

U.S.S.G. § 4A1.3 and variances under 18 U.S.C. § 3553(a). See United States v. Jordan,

544 F.3d 656, 671 n.12 (6th Cir. 2008) (“A sentence outside the Guidelines based on

Chapter 5 of the Guidelines is a ‘departure’ or ‘Guideline departure,’ whereas a sentence

outside the Guidelines based on the § 3553(a) factors is a ‘variance’ or ‘non-Guideline
No. 08-1540 United States v. Herrera-Zuniga Page 23

10See, e.g., United States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008); United States v.

Solis-Bermudez, 501 F.3d 882, 884 (8th Cir. 2007).

departure.’”). Unlike some of our sister circuits,10 however, we have not required that

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

advisory Guidelines range is based on a departure or variance. See id. (construing the

district court’s deviation as a variance rather than a departure because it “based its

sentence on the § 3553(a) factors,” but finding no error in the court’s failure to specify

the basis for its rejection of the advisory Guidelines range). Although the sentencing

court is required to provide an “adequate explanation” of the basis for its decision, the

court “may exercise discretion in determining how much of an explanation of the

sentence is required because ‘the amount of reasoning required varies according to

context.’” United States v. Jeross, 521 F.3d 562, 582-83 (6th Cir. 2008) (quoting Liou,

491 F.3d at 338). 

 Moreover, because the sentencing court has authority to deviate from the

advisory Guidelines range under either § 3553(a) or § 4A1.3, the failure to specify to

what extent each factored into the court’s determination of an appropriate sentence does

not affect our ability to review the reasonableness of the deviation. See Rita, 551 U.S.

at 356 (requiring only that the sentencing judge “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”); United States v. Kirby, 418 F.3d

621, 626 (6th Cir. 2005) (requiring only that the district court must “articulate its

reasoning in deciding to impose a sentence” in such a manner that is sufficient “to allow

for reasonable appellate review”); United States v. Jackson, 408 F.3d 301, 304 (6th Cir.

2005) (finding no per se error in the district’s “fail[ure] to discuss the extent of the

departure at all,” because “[t]he question before us on appeal is what quality of analysis

and explanation, if any, is necessary where the district court exercises its discretion to

vary a defendant’s sentence from the applicable range provided by the now-advisory

Guidelines”); see also Tankersley, 537 F.3d at 1114 (“The old departure scheme is

relevant today only insofar as factors that might have supported (or not supported) a

departure may tend to show that a non-guidelines sentence is (or is not) reasonable.”);
No. 08-1540 United States v. Herrera-Zuniga Page 24

United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006) (concluding that “the

scheme of downward and upward ‘departures’ [was] essentially replaced by the

requirement that judges impose a ‘reasonable’ sentence”). Accordingly, HerreraZuniga’s first argument is unavailing.

Although more compelling, Herrera-Zuniga’s second argument also must fail.

In cases such as this, where the district court determines that an upward departure is

warranted but the defendant’s criminal history score already places him or her in

category VI, the Guidelines recommend that the court “should structure the departure

by moving incrementally down the sentencing table to the next higher offense level in

Criminal History Category VI until it finds a guideline range appropriate to the case.”

U.S.S.G. § 4A1.3(a)(4)(B). Over the years, this Court has considered various methods

adopted by district courts in applying this provision. For instance, in United States v.

Carr, 5 F.3d 986 (6th Cir. 1993), we held that § 4A1.3 requires a district court to

consider each successive sentencing range that would result from an incremental

increase of the offense level, concluding that the district court was precluded from

increasing the defendant’s offense level unless the court “demonstrate[s] why it found

the sentence imposed by each intervening level to be too lenient.” Id. at 994 (citing

United States v. Lassiter, 929 F.2d 267, 270 (6th Cir. 1991)). In United States v. Gray,

16 F.3d 681 (6th Cir. 1994), we read § 4A1.3 to preclude a district court from “creat[ing]

a hypothetical criminal history category greater than VI.” Id. at 683. 

Following Booker, however, our decisions have made abundantly clear that a

rigid understanding of the methodology recommended under the Guidelines “is not

binding on the district court, and should not be substituted for the district court’s

judgment.” United States v. Griffin, 530 F.3d 433, 441 (6th Cir. 2008) (citing United

States v. Brown, 371 F.3d 854, 860 (6th Cir. 2004)). In fact, even before Booker, we had

rejected such a mechanical application of § 4A1.3, concluding that sentencing judges

were not required “to explain formalistically, gridblock by gridblock, why each

intervening range is inappropriate.” Thomas, 24 F.3d at 835 (“Such a rigid, formalistic

and essentially meaningless exercise to determine a sentence is not required by the
No. 08-1540 United States v. Herrera-Zuniga Page 25

11In certain circumstances, the failure to explain the basis for a deviation or an adjusted

sentencing range might create confusion that itself rises to the level of sentencing error. See, e.g., United

States v. Grams, 566 F.3d 683, 687 (6th Cir. 2009).

guidelines, nor is it necessary to the fair and impartial administration of criminal

justice.”). As we explained in United States v. Brown, 371 F.3d 854 (6th Cir. 2004),

although an “expedient” formula may be useful “as a reference point,” “the use of such

a construct . . . cannot replace the exercise of the court’s independent judgment.” Id. at

860. Thus, regardless of the method employed, “the whole point of the exercise is to

‘find[] a guideline range appropriate to the case.’” Id. (internal citation omitted) (quoting

Thomas, 24 F.3d at 835). Simply put, this Court has rejected “a mechanistic approach

to departures.” Thomas, 24 F.3d at 833. The logic underlying our decisions in Thomas

and Brown is clear: because the Sentencing Guidelines are advisory only, the particular

methodology set forth in § 4A1.3 cannot be binding. 

 Given this rejection of a formulaic approach to departures, we cannot say that it

always is per se procedurally unreasonable for a district court to fail to specify whether

its deviation was based on a departure or variance, or to specify an adjusted offense

level.11 The only statutory requirement is that the district court impose a sentence that

accords with, but is “not greater than necessary” to achieve, the settings goals identified

by Congress. 18 U.S.C. § 3553(a). Regardless of the method employed, “at the end of

the day the court must decide, in light of all the facts and circumstances of the particular

case before it, whether the range in question is appropriate to the case.” Brown, 371

F.3d at 860 (internal quotations marks omitted). Generally speaking, this requires that

the sentencing judge consider “the seriousness of the defendant’s past criminal conduct,

the likeliness of recidivism, prior similar adult conduct not resulting in criminal

convictions, previous lenient sentences for offenses, whether the sentence will have a

deterrence on future criminal conduct, the necessity of isolating the defendant from the

community and the length of time necessary to achieve rehabilitation, if rehabilitation

is possible.” Thomas, 24 F.3d at 833 (citing United States v. Joan, 883 F.2d 491, 496

(6th Cir. 1989)).
No. 08-1540 United States v. Herrera-Zuniga Page 26

 Although the district court is required to properly calculate the Guidelines range,

that is only a “starting point and initial benchmark” of the sentencing analysis. Gall, 128

S. Ct. at 596. There is no requirement that, after concluding that a departure is

warranted, the court must specify a new, adjusted sentencing range. And because we

apply a presumption of reasonableness only to sentences falling within the initial

sentencing range recommended under the Guidelines, see Smith, 474 F.3d at 892, there

also would be no intrinsic need to specify an adjusted sentencing range to aid our

appellate review.

 In this case, the record reflects that the district court properly calculated the

initial Guidelines range and thoroughly considered the relevant § 4A1.3 and § 3553(a)

factors, finding that Herrera-Zuniga’s criminal history category underrepresented his

criminal history and that he was likely to commit other crimes. The district court did not

commit procedural error by failing to explain whether its deviation was based on a

departure or variance. Nor did it err by failing to specify a final, adjusted sentencing

range.

Herrera-Zuniga’s Criminal History

Finally, Herrera-Zuniga argues that the district court improperly concluded that

his criminal history score did not adequately reflect the full significance of his prior

criminal conduct. Although acknowledging that it is within the prerogative of the

sentencing judge to deviate from the advisory Guidelines range where the defendant’s

criminal history category does not adequately represent and account for the defendant’s

past criminal conduct, U.S.S.G. § 4A1.3; see also Griffin, 530 F.3d at 441; Smith, 474

F.3d at 891, Herrera-Zuniga argues that such a finding is not supported in this case. We

disagree.

 Because defense counsel failed to raise this issue below and failed to object on

this ground after sentencing, we review this issue for plain error. Vonner, 516 F.3d at

386. To demonstrate plain error, Herrera-Zuniga must show “(1) error (2) that ‘was

obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected

the fairness, integrity, or public reputation of the judicial proceedings.’” Id. (quoting
No. 08-1540 United States v. Herrera-Zuniga Page 27

United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). We will find such error

“only in exceptional circumstances,” and only “where the error is so plain that the trial

judge . . . [was] derelict in countenancing it.” Gardiner, 463 F.3d at 459.

 Applying that standard here, we find no reversible error. As an initial matter,

although a finding that a defendant’s past criminal conduct is “extensive and egregious”

is sufficient to warrant an upward departure, Smith, 474 F.3d at 891, nothing in our case

law suggests that such a finding is necessary for a court to depart upwards. On the

contrary, because the Guidelines are advisory only, the limitations set forth in § 4A1.3

do not delineate the outer bounds of the sentencing court’s authority to impose a

sentence above the recommended sentencing range, nor is a sentencing court required

to limit its consideration to factors relevant to § 4A1.3. Whereas § 4A1.3(a)(1) permits

an upward departure only where the defendant’s criminal history category “substantially

under-represents the seriousness of the defendant’s criminal history or the likelihood that

the defendant will commit other crimes,” the court’s authority under § 3553(a) more

broadly permits consideration of “the nature and circumstances of the offense and the

history and characteristics of the defendant,” as well as “the need for the sentence

imposed . . . to protect the public from further crimes of the defendant.” A district court

always can impose an above-Guidelines sentence so long as it is reasonable in light of

the factors set forth in 18 U.S.C. § 3553(a).

Thus, even if we were to accept Herrera-Zuniga’s argument that his criminal

history score adequately accounted for the seriousness of his past criminal conduct, that

would not have precluded the district court from imposing an above-Guidelines sentence

in this case. See United States v. Tate, 516 F.3d 459, 468 (6th Cir. 2008) (affirming

upward departure under § 4A1.3 where sentencing judge based its departure on “a wide

range of considerations,” some of which were not directly related to defendant’s criminal

history). The only requirement is that the court determine, “in light of all the facts and

circumstances of the particular case before it, whether the range in question is

appropriate to the case.” Brown, 371 F.3d at 860 (internal quotations marks omitted).
No. 08-1540 United States v. Herrera-Zuniga Page 28

In any event, after reviewing the record and giving due deference to the

sentencing judge’s determinations, we are satisfied that the district court’s conclusion

that a harsher sentence was warranted on this basis was not plain error. In explaining

its reasons for imposing a harsher sentence, the district court made clear that it was

troubled by Herrera-Zuniga’s “egregious” criminal record, which it reasonably

concluded evidenced a high likelihood of recidivism. The court also noted that the PSIR

detailed several incidents of prior criminal conduct that did not result in a conviction, or

otherwise were not included in the PSIR’s criminal history calculation. See PSIR ¶¶ 26,

39, 40. In addition to the number of prior convictions, the court also expressed concern

regarding the nature of those offenses, reasoning that Herrera-Zuniga’s repeated

decision to drive while intoxicated posed a more significant danger to the public than

was reflected in his criminal history score. See ROA vol. 2 at 14. Because these

findings are adequately supported in the record, the court’s conclusion that HerreraZuniga’s criminal history score did not fully capture the seriousness of his past criminal

conduct was not unreasonable, and certainly not plain error. See United States v.

Matheny, 450 F.3d 633, 640 (6th Cir. 2006).

Again though, even if the court’s departure cannot be sustained under § 4A1.3,

the seriousness of Herrera-Zuniga’s criminal history was not the only consideration on

which the district court relied in imposing a harsher sentence. The district court also

noted several § 3553(a) factors that warranted imposing a harsher sentence. For

instance, in discussing the nature and circumstances of Herrera-Zuniga’s present offense,

the court expressed particular concern that Herrera-Zuniga had illegally reentered the

United States only a few months after being deported for the third time. The court

concluded that this demonstrated Herrera-Zuniga’s utter lack of respect for the law.

Under our controlling authority, such considerations provide a reasonable basis for

imposing a harsher sentence. See Thomas, 24 F.3d at 833 (“Both the criminal history

score and the high likelihood of recidivism are valid, legal reasons for an upward

departure from the guidelines and satisfy the first prong of our test.”); see also

Solis-Bermudez, 501 F.3d at 887 (finding that a defendant’s “history of deportation and
No. 08-1540 United States v. Herrera-Zuniga Page 29

illegal reentry, together with his serious criminal record, justified the district court’s

upward variance”).

V.

In addition to his procedural challenges, Herrera-Zuniga also argues that the

length of his sentence is substantively unreasonable because it is “greater than

necessary” to accomplish the sentencing goals identified by Congress in 18 U.S.C.

§ 3553(a).

Although a sentence that falls within the Guidelines range warrants a

presumption of reasonableness in this circuit, there is no presumption against a sentence

that falls outside of this range. See Smith, 474 F.3d at 892. Rather, “[t]his court has

applied a form of proportionality review to sentences outside the Guidelines range, so

that ‘the greater the variance from the range, the more compelling the justification for

variance must be.’” Tate, 516 F.3d at 470 (quoting Smith, 474 F.3d at 892).

Nevertheless, “while the extent of the difference between a particular sentence and the

recommended Guidelines range is surely relevant, courts of appeals must review all

sentences—whether inside, just outside, or significantly outside the Guidelines

range—under a deferential abuse-of-discretion standard.” Gall, 128 S. Ct. at 591. 

Applying that standard, and in light of our upward departure case law, we are

satisfied that the sentence imposed by the district court, although certainly harsh, is not

“unreasonable.” See Griffin, 530 F.3d at 440-41; Tate, 516 F.3d at 468-70; Brown, 371

F.3d at 859-60; Smith, 47 F.3d at 892; Thomas, 24 F.3d at 833-35. Regardless of

whether we would have imposed the same sentence, we must afford due deference to the

district court’s decision to determine the appropriate length of the defendant’s sentence,

so long as it is justified in light of the relevant § 3553(a) factors. See Kimbrough, 128

S. Ct. at 576 (“Giving due respect to the District Court’s reasoned appraisal, a reviewing

court could not rationally conclude that the 4.5-year sentence reduction Kimbrough

received qualified as an abuse of discretion.”); Vonner, 516 F.3d at 392 (“Our affirmance

in today’s case respects the central lesson from these decisions—that district courts have

considerable discretion in this area and thus deserve the benefit of the doubt when we
No. 08-1540 United States v. Herrera-Zuniga Page 30

review their sentences and the reasons given for them.”). As our discussion of the

factual record makes clear, a host of factors support the sentencing judge’s conclusion

that a particularly harsh sentence was warranted in this case, including Herrera-Zuniga’s

significant criminal history, his repeated recidivism, the seriousness of his offenses, the

nature and circumstances of his latest offense, his repeated failure to complete substance

abuse programs, and the need to protect the public from his inability to refrain from

driving while intoxicated. 

VI.

Although we have resolved all of the issues raised by the parties, we feel the need

to discuss one additional issue. As explained in detail above, the Assistant Federal

Public Defender assigned to Herrera-Zuniga’s case chose to submit to the court a letter

written to Herrera-Zuniga in lieu of a “likely useless” discussion of the § 3553(a) factors.

At a minimum, that strategy was highly questionable. Not only was the tone of the letter

highly unprofessional, but many of the statements made therein cast Herrera-Zuniga’s

conduct in a particularly unfavorable light, seemingly supporting the court’s inclination

to depart upward. We thus are concerned that defense counsel’s chosen “strategy”

constitutes professional malfeasance and, potentially, constitutionally ineffective

assistance of counsel. 

 As a “general rule,” we do not consider on direct appeal whether defense

counsel’s performance constituted constitutionally ineffective assistance, primarily

because “there has not been an opportunity to develop and include in the record evidence

bearing on the merits” of that issue. United States v. Wunder, 919 F.2d 34, 37 (6th Cir.

1990). We have recognized an exception to that rule, however, where “the record is

adequate to assess” the issue. Id. 

 In this case, the record is clear that Stroba failed to raise any § 3553(a) factors

in response to the court’s Notice of Intent to Upward Depart, despite the fact that the

PSIR identified several potentially relevant considerations, including Herrera-Zuniga’s

decision to return to the United States to support his sick daughter. According to Stroba,

he chose not to engage in a “likely useless review of the 18 U.S.C. § 3553(a) factors”
No. 08-1540 United States v. Herrera-Zuniga Page 31

because “[t]here is not one thing about [Herrera-Zuniga’s] situation that lends itself to

a positive thought.” ROA vol. 1 at 16, 19. Such statements raise serious concerns that

Stroba failed to fulfill his duty to advocate on his client’s behalf. See Beasley v. United

States, 491 F.2d 687, 696 (6th Cir. 1974) (noting that defense counsel “must

conscientiously protect his client’s interest” by asserting “all apparently substantial

defenses available to the defendant . . . in a proper and timely manner”). 

 Moreover, Stroba’s letter actually went beyond that and expounded on and

emphasized the seriousness of his client’s misdeeds. In fact, the sentencing

memorandum and the letter Stroba attached to it read more like a prosecutor’s argument

in favor of a harsher sentence. For instance, Stroba’s letter belittles Herrera-Zuniga as

being “at the bottom of society’s hierarchy,” and exclaims that it is “only a matter of

time” before Herrrera-Zuniga “kill[s], maim[s], or injure[s] some innocent driver or

passenger in another vehicle or a bystander.” ROA vol. 1 at 20. From the record before

us, we do not understand how a federal public defender could in good faith make such

statements to the sentencing court about his client. 

 At oral argument before this Court, Stroba suggested that he submitted this letter

to the court in an effort to convince the court that his client understood the seriousness

of his offenses, thus hopefully dissuading the court from imposing an overly harsh

sentence. Perhaps that explanation would be more plausible had Stroba made at least

one statement to that effect before the district court. The sentencing memorandum and

the transcript from the sentencing hearing, however, are entirely bereft of any comments

suggesting that Herrera-Zuniga appreciates the seriousness of his offenses or that he was

repentant in any way. It seems much more likely that Stroba simply washed his hands

of the matter and abdicated his responsibility to advocate on behalf of his client: “I am

truly at a loss to figure out how to explain to Chief Judge Bell that somehow or in some

manner, he should not treat you most severely. . . . I am sorry to be so blunt, but I have

to honest with you, your case has left me without an expressible empathy. For this I am

sorry because it leaves me almost unable to advocate on your behalf.” ROA vol. 1 at 20.
No. 08-1540 United States v. Herrera-Zuniga Page 32

12Moreover, given the contents of the letter, it seems highly unlikely that Herrera-Zuniga gave

his consent to its disclosure to the court. Consequently, disclosing the letter may have violated Rules

1.4(a) and 1.6(a) of the American Bar Association’s Model Rules of Professional Conduct. That issue also

deserves further evidentiary inquiry.

In light of such statements, we are concerned that Stroba may have rendered

constitutionally ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 685

(1984) (holding that the Sixth Amendment right to counsel entitles an accused “to be

assisted by an attorney, whether retained or appointed, who plays the role necessary to

ensure that the trial is fair”). In fact, because Stroba’s letter essentially argued against

his client’s interests, Stroba’s conduct may have been “so likely to prejudice the

accused” that any ineffective assistance concerns should be evaluated under United

States v. Cronic, 466 U.S. 648 (1984). See Wright v. Van Patten, 552 U.S. ___, 128 S.

Ct. 743, 746 n.1 (2008) (per curiam) (recognizing that Cronic’s presumption of prejudice

applies “when ‘there [is] a breakdown in the adversarial process,’ such that ‘counsel

entirely fails to subject the prosecution’s case to meaningful adversarial testing’”

(quoting Cronic, 466 U.S. at 662, 659)).

 Nevertheless, given that further evidence may be relevant to evaluating the

validity of Stroba’s explanation, we decline to resolve this issue at this stage.12

However, we order that Stroba provide a translated copy of this opinion to his client so

that Herrera-Zuniga can evaluate his options for seeking habeas relief on this basis.

CONCLUSION

For the foregoing reasons, we hereby AFFIRM the sentence imposed by the

district court.