NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0082n.06

No. 19-5890

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TELLY TERRELL BYRD,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

KENTUCKY

OPINION

BEFORE: SILER, WHITE, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Telly Terrell Byrd pleaded guilty to a charge of 

aiding and abetting a bank robbery in 2011 and was sentenced to 57 months’ incarceration 

followed by two years’ supervised release. United States v. Byrd, 689 F.3d 636, 638–39 (6th Cir. 

2012). Near the end of his supervised release term, the probation office asked the district court to 

revoke it after Byrd was convicted of two misdemeanors. The district court revoked Byrd’s 

supervised release and imposed the statutory maximum of two years’ incarceration (with no 

additional supervised release), doubling the high end of Byrd’s Guidelines range. During the 

revocation hearing, the district court mainly, if not exclusively, discussed its view of Byrd’s 

conduct underlying his misdemeanor convictions when explaining the upward departure.

Byrd now appeals both the procedural and substantive reasonableness of his sentence for 

violation of supervised release on the grounds that the district court did not consider the relevant 

factors delineated in 18 U.S.C. § 3553(a) and assigned unreasonable weight to the conduct 
No. 19-5890, United States v. Byrd

-2-

underlying his misdemeanor convictions, rendering the sentence greater than necessary to comply 

with § 3553(a)’s purposes. We VACATE the district court’s order revoking Byrd’s supervised 

release and REMAND for resentencing.

I. BACKGROUND

On June 20, 2011, Byrd pleaded guilty to a charge of aiding and abetting bank robbery in 

violation of 18 U.S.C. §§ 2, 2113(a). Byrd, 689 F.3d at 638. He was convicted of two 

misdemeanor counts in state court stemming from his role as the driver in an armed robbery; the 

factual basis for his Alford plea stated that his accomplices had entered a business and shot 

someone inside. The district court sentenced him to 57 months’ incarceration, at the low end of 

his Guidelines range, followed by two years of supervised release. He appealed, and we affirmed 

his sentence. Id. Byrd was released from custody on May 13, 2015.

On April 28, 2017, Byrd’s federal probation officer, Todd Mousty, filed a petition for 

summons on probation and supervised release. The petition declared that on June 29, 2016, while 

Byrd was on federal supervised release, he had been indicted in state court on two counts of 

attempted murder and two counts of complicity to first degree assault, all felonies. It stated that 

Byrd had posted bond on February 8, 2017 and had been confined to his home since then. The 

petition also noted that Byrd had failed to report or respond to voicemails and text messages from 

the probation officer.

The district court held a revocation hearing on July 25, 2019. Neither Byrd nor the 

Government submitted written briefing prior to the hearing, and the district court did not request 

any. At the hearing, Byrd and his counsel explained that he had been convicted in state court of 

two counts of second-degree wanton endangerment—a misdemeanor—after entering an Alford

plea on June 19, 2019. He had served over seven months in jail (explaining his failure to report) 
No. 19-5890, United States v. Byrd

-3-

and had been confined to his home for a year, with neither term credited to his misdemeanor 

sentence.

The district court then stated:

I mean, it sounds very benign to say Alford plea to a misdemeanor offense, 

but if what Mr. Byrd did was drop three people off at a business and the three people 

that he dropped off went in and shot a man seven times, that doesn’t sound like a 

benign incident. It doesn’t sound like somebody maybe swerved their car, you 

know, in a crowded intersection. It really sounds like something that’s much more 

consistent with the bank robbery by force or violence, which was the initial charge.

Next, the Government called Mousty as a witness, and he testified that the original statecourt indictment charged Byrd with causing “serious physical injury” to a worker. Mousty also 

said that police told him that the worker had been shot seven times and that someone else had been 

shot as well. The Government read the factual basis for Byrd’s Alford plea into the record. It 

stated that on January 11, 2016, Byrd had driven three people to a business in Louisville, which 

they entered, fired shots in an open area with workers present, and then left in Byrd’s car. Byrd 

later argued that the offense of which he was actually convicted did not involve intentional 

conduct. Byrd further contended that the state-court parties were best situated, with all of the facts 

before them, to determine an appropriate sentence: the state-court prosecutor believed the 

misdemeanor was an appropriate resolution given Byrd’s conduct, and the state-court judge 

accepted the plea.

After Byrd did not object to the Guidelines calculation, the Government requested a 

sentence at the top of Byrd’s Guidelines range of six to twelve months’ incarceration. Byrd, in 

turn, requested that his time on home confinement be credited toward any sentence for violation 

of supervised release. The district court stated that it “could impose an additional period of 

supervision” to any incarceration.
No. 19-5890, United States v. Byrd

-4-

The district court decided to impose the statutory maximum of 24 months’ incarceration. 

See 18 U.S.C. § 3583(e)(3). It explained its reasoning as follows:

Well, here’s my thought process: [a]nd that is that it’s not this court’s job, 

as [defense counsel] put it, to enforce the wanton endangerment charge, the state 

charge, but it is this court’s job to enforce the conditions of supervised release.

Mr. Byrd served time for a violent offense of bank robbery. And then while 

he was on federal release, supervised release, as I understand it, he has admitted, 

he pled guilty to driving these individuals to a place of business. They got out of 

his car. They went inside and shot somebody seven times. They came back out 

and got in his car and he drove away. That to me is outrageous. It really is.

And I understand the guideline range is six to 12 months, but I believe the 

appropriate thing in this instance is to sentence Mr. Byrd to the maximum sentence 

that I’m able to do and that’s what I’m going to do. I’m going to sentence him to 

two years in prison.

I think this is an outrageous amount of conduct to be engaged in by someone 

who is supposed to be reporting and complying with the conditions of supervision 

that were handed down by [the previously assigned judge] in this case. And it 

sounds to me like Mr. Byrd just completely flouted that. He acted as though he 

were under no restriction, not only from the federal courts, but society at large. 

And, again, this is the most outrageous behavior I’ve seen from any defendant that 

has been on federal supervision. And I think the facts of this case do warrant the 

maximum sentence, and that’s what I’m going to impose.

The district court did not subsequently ask the Government or Byrd if either had any additional 

objections to the sentence. On July 29, 2019, the district court issued a one-page order which 

stated that it had “considered the advisory guidelines and 18 U.S.C. [§] 3553(a)” and “believe[d] 

the sentence imposed to be sufficient, but not greater than necessary[,] to comply with the purposes 

set forth in Section 3553(a)(2).” Byrd timely appealed the district court’s order revoking his 

supervised release and sentencing him to 24 months’ incarceration.

II. ANALYSIS

A. Standard of Review

When the district court “did not clearly ask whether either of the parties had any additional 

objections at the end of the sentencing hearing,” we review unpreserved objections to the order 
No. 19-5890, United States v. Byrd

-5-

revoking supervised release for an abuse of discretion rather than for the usual plain error. United 

States v. Batti, 631 F.3d 371, 379 n.2 (6th Cir. 2011) (citing United States v. Bostic, 371 F.3d 865 

(6th Cir. 2004)). Generally, review of a sentence imposed following revocation of supervised 

release applies the same standard as review of a sentence imposed following conviction. United 

States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). We “look[] to the entire context and record” 

when reviewing a district court’s sentencing determination. United States v. Madden, 515 F.3d 

601, 612 (6th Cir. 2008).

In the sentencing context, the abuse of discretion inquiry asks whether the sentence is 

reasonable. United States v. Walters, 775 F.3d 778, 781 (6th Cir. 2015). “Sentences must be both 

procedurally and substantively reasonable.” Id.; see generally Gall v. United States, 552 U.S. 38,

51 (2007). Sentences within the Guidelines range, including those imposed after revocation of 

supervised release, are presumed to be reasonable. United States v. Melton, 782 F.3d 306, 313 

(6th Cir. 2015); see also Chavez-Meza v. United States, 138 S. Ct. 1959, 1964 (2018) (“When a 

judge applies a sentence within the Guidelines range, he or she often does not need to provide a 

lengthy explanation.”). But sentences outside the Guidelines range are not presumed to be 

reasonable, United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir. 2009), though they are 

also not presumed to be unreasonable, United States v. Johnson, 640 F.3d 195, 202 (6th Cir. 2011).

B. Procedural Reasonableness

Procedural reasonableness review involves three steps. Bolds, 511 F.3d at 579. “First, we 

must ensure that the district court ‘correctly calculat[ed] the applicable Guidelines range,’” the 

“‘starting point and initial benchmark’ of its sentencing analysis.” Id. (alteration in original) 

(quoting Gall, 552 U.S. at 49). “[O]ur second task is to ensure that the district judge gave ‘both 

parties the opportunity to argue for whatever sentence they deem appropriate’ and then ‘considered 
No. 19-5890, United States v. Byrd

-6-

all of the § 3553(a) factors to determine whether they support the sentence requested by [each] 

party.’” Id. at 579–80 (second alteration in original) (quoting Gall, 552 U.S. at 49–50). “[O]ur 

final task is to ensure that the district court has ‘adequately explain[ed] the chosen sentence to 

allow for meaningful appellate review and to promote the perception of fair sentencing.’” Id. at 

580 (second alteration in original) (quoting Gall, 552 U.S. at 50). Overall, for a sentence to be 

procedurally reasonable, the district court must not have committed any “significant procedural 

error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the 

Guidelines as mandatory, failing to consider the § 3553(a) factors,1selecting a sentence based on 

clearly erroneous facts, or failing to adequately explain the chosen sentence—including an 

explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51.

Only the third step is at issue in this case. Byrd argues that the district court failed to 

adequately explain its chosen sentence. The general rule is that the district court “must adequately 

explain the chosen sentence to allow for meaningful appellate review and to promote the 

perception of fair sentencing.” Id. at 50. This involves considering the § 3553(a) factors. “Explicit 

reference to the § 3553(a) factors is perhaps the easiest way for the district court to demonstrate 

that it has considered the factors, but such recitation is not required by statute or by this circuit’s 

opinions.” United States v. Smith, 505 F.3d 463, 468 (6th Cir. 2007). Still, “there must be . . .

sufficient evidence in the record to affirmatively demonstrate the court’s consideration” of the 

1 The § 3553(a) factors relevant here are: (1) “the nature and circumstances of the offense and the history and 

characteristics of the defendant”; (2) “the need for the sentence imposed . . . to reflect the seriousness of the offense, 

to promote respect for the law, and to provide just punishment for the offense[,] . . . to afford adequate deterrence to 

criminal conduct[,] . . . to protect the public from further crimes of the defendant[,] and to provide the defendant with 

needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”; 

(3) “the kinds of sentences available”; (4) “the kinds of sentence and the sentencing range established for[,] in the case 

of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the 

Sentencing Commission”; (5) “any pertinent policy statement . . . issued by the Sentencing Commission”; and (6) “the 

need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of 

similar conduct.” 18 U.S.C. § 3553(a).
No. 19-5890, United States v. Byrd

-7-

§ 3553(a) factors, even though it “need not explicitly reference each of [them].” United States v. 

McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006). But if the district court does not explicitly mention 

them, and there is no “evidence in the record demonstrating that they were thoroughly considered,” 

then we will find “a procedurally unreasonable sentencing determination requiring us to vacate 

and remand for resentencing.” Id. Even though “something less than a factor-by-factor recitation 

is acceptable,” “something more than a simple and conclusory judicial assertion that the court has 

considered [the factors] is essential.” United States v. Ferguson, 518 F. App’x 458, 467 (6th Cir. 

2013); see also, e.g., United States v. Blackie, 548 F.3d 395, 401 (6th Cir. 2008). Ultimately, a 

“sentence is procedurally unreasonable, inter alia, where the sentencing judge ‘simply selects what 

the judge deems an appropriate sentence without . . . consideration’ of the § 3553(a) factors.” 

Ferguson, 518 F. App’x at 463 (alteration in original) (quoting United States v. Webb, 403 F.3d 

373, 383 (6th Cir. 2005)).

Byrd argues that “the only factor the district court considered was [his] state court 

conviction—more specifically—the conduct of other persons in that case.” The Government

responds that the district court “considered,” indirectly or “implicitly,” a number of other 

sentencing factors: “the kinds of sentences available,” by briefly noting it could impose additional 

supervised release if Byrd were given credit for time served; “the need to avoid unwarranted 

sentencing disparities among defendants” and “the nature and circumstances of the offense and 

[Byrd’s] history and characteristics,” by discussing the conduct underlying Byrd’s misdemeanor 

conviction and its perceived severity; and the Sentencing Commission’s relevant policy statement, 

by stating that the court’s job was to enforce the supervised release conditions rather than sentence 

for Byrd’s misdemeanor.
No. 19-5890, United States v. Byrd

-8-

While the district court need not list each § 3553(a) factor by name, it must illustrate 

somehow that it did in fact consider each of the factors, offering something more than a 

“conclusory judicial assertion” as proof. Ferguson, 518 F. App’x at 467. Our job is to review 

what the district court did and why. The district court’s job is, in part, to show its work. If this 

court is left to divine or extrapolate the district court’s reasoning after the fact, the district court 

has not done its job of imposing a procedurally reasonable sentence. See generally McBride, 434 

F.3d at 476 n.3 (“To the extent that the court hides its reasoning or requires us to ponder and 

speculate, the more likely we are to find procedural unreasonableness in the court’s sentencing 

determination.”); United States v. Chiolo, 643 F.3d 177, 185 (6th Cir. 2011) (“[W]henever a 

district court requires us to infer its bases for rejecting [sentencing] arguments, the district court 

greatly increases the risk of a remand.”). 

Here, “the district court never verbalized which of [the § 3553(a)] factors were particularly 

important to the circumstances of this case or how it selected the sentence in light of these factors” 

besides a brief mention of § 3553(a)(2) in its written order. United States v. Penson, 526 F.3d 331, 

338 (6th Cir. 2008). The Government argues that the district court’s brief explanation of its 

“thought process” indirectly or implicitly considered the sentencing factors. But even if we 

assumed the Government’s inferences, the court’s statements evinced consideration of at most 

(1) the circumstances of Byrd’s offense of conviction and his history and characteristics; (2) the 

need to reflect the seriousness of the offense, to provide just punishment for it, and perhaps to deter 

Byrd further from criminal conduct or to protect the public from him; and (3) the kinds of sentences 

available. See 18 U.S.C. § 3553(a). And its discussion of factors (1) and (2) focused nearly 

exclusively on Byrd’s violation conduct rather than Byrd’s offense of conviction, militating against 

the conclusion that the district court properly considered those factors. See Johnson, 640 F.3d at 
No. 19-5890, United States v. Byrd

-9-

203. The Government contends that the district court “implicitly considered” the relevant policy 

statement by briefly mentioning a topic discussed in the introductory commentary to that policy 

statement; but, as Byrd points out, the only way to know for sure that the district court actually 

considered the policy statement is for it to say so.2

When finding sentences procedurally reasonable, we regularly highlight the sentencing 

court’s explicit discussion of multiple sentencing factors, readily apparent from the record. See, 

e.g., id. at 207–08; Bolds, 511 F.3d at 582; United States v. Donlow, 807 F. App’x 424, 426–27 

(6th Cir. 2020); United States v. Kroffke, 776 F. App’x 304, 308–09 (6th Cir. 2019). In United 

States v. Whitely, 356 F. App’x 839 (6th Cir. 2009), which the Government cites, we found a 

sentence imposed after revocation of supervised release procedurally reasonable chiefly because

of the district court’s consideration of the similarity between the offense conduct and the violation 

conduct, which the district court considered here. Id. at 845. But in Whitely, we emphasized the 

district court’s discussion of other factors and stressed the key fact that the sentence was within 

the Guidelines range and thus already presumed reasonable. Id. That is a meaningfully different 

scenario than the one this case presents. 

The clearest and simplest way to explain a sentencing decision is to discuss, at appropriate 

length, the application of each § 3553(a) factor to the facts of the case at hand. Smith, 505 F.3d at 

468. Because the decision to revoke supervised release is complex and multifaceted, the process 

of arriving at that decision should be reasoned and sufficiently transparent for the defendant to 

understand and this court to evaluate. District courts have the discretion to explain their decisions 

2 We note that in an unpublished decision, we previously stated—without citation or analysis—that in general, “we 

can presume that the court considered the relevant policy statements for supervised-release violations” in the absence 

of explicit record evidence. United States v. Jackson, 541 F. App’x 668, 669 (6th Cir. 2013). Dictum in an 

unpublished decision has no binding authority. If the court indeed considered the relevant policy statements, as 

statutorily required, it should make that clear.
No. 19-5890, United States v. Byrd

-10-

in a different way (i.e., without listing each factor), but that choice does not circumvent the core 

responsibility to put ample “evidence in the record demonstrating that [the factors] were 

thoroughly considered.” McBride, 434 F.3d at 475 n.3. “[S]omething more than a simple and 

conclusory judicial assertion that the court has considered [the factors] is essential,” Ferguson, 

518 F. App’x at 467, as is a record that reflects consideration of any and all “particular[, 

nonfrivolous]” arguments for a lower sentence, United States v. Wallace, 597 F.3d 794, 803 (6th 

Cir. 2010) (alteration in original) (quoting United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 

2009)). Whatever the court relies upon as its justification, it must clearly articulate. That 

obligation is no less mandatory for being “modest.” Ferguson, 518 F. App’x at 470.

A review of the hearing transcript and subsequent written order shows that the district court 

failed to offer this court sufficient explanation to enable meaningful appellate review. See United 

States v. Thomas, 498 F.3d 336, 341 (6th Cir. 2007). Nor was its explanation adequate “to promote 

the perception of fair sentencing.” Bolds, 511 F.3d at 580 (quoting Gall, 552 U.S. at 50). The 

district court therefore abused its discretion by determining Byrd’s sentence in a procedurally 

unreasonable manner.

C. Substantive Reasonableness

The district court was obligated to impose not only a procedurally reasonable sentence, but 

a substantively reasonable one as well. “Substantive unreasonableness is an argument about the 

length of the sentence.” United States v. Fievet, 808 F. App’x 358, 364 (6th Cir. 2020). If the 

district court “‘placed too much weight on some of the § 3553(a) factors and too little on others,’ 

the sentence is substantively unreasonable regardless of whether the court checked every 

procedural box before imposing [the] sentence.” United States v. Boucher, 937 F.3d 702, 707 (6th 

Cir. 2019) (quoting United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019)), cert. denied,
No. 19-5890, United States v. Byrd

-11-

140 S. Ct. 2668 (2020). “The point is not that the district court failed to consider a factor or 

considered an inappropriate factor; that’s the job of procedural unreasonableness.” United States 

v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018).

We have noted that weighing the § 3553(a) factors “is a matter of reasoned discretion, not 

math.” Id. (citing Gall, 552 U.S. at 51). But even though our review is “highly deferential,” id., 

we again do not accord sentences outside the Guidelines range a presumption of reasonableness, 

Herrera-Zuniga, 571 F.3d at 582. District courts cannot just “pick any sentence within the 

applicable statutory sentencing range that strikes their fancy.” United States v. Warren, 771 F. 

App’x 637, 642 (6th Cir. 2019) (quoting United States v. Poynter, 495 F.3d 349, 352 (6th Cir. 

2007)). In fact, the greater the “degree of variance from the [Guidelines] range,” “the more 

compelling the justification based on the § 3553(a) factors must be.” Herrera-Zuniga, 571 F.3d 

at 582 (quoting United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006)); see also Gall, 552 

U.S. at 50 (“We find it uncontroversial that a major departure should be supported by a more 

significant justification than a minor one.”).

Byrd contends that his sentence is substantively unreasonable because the district court did 

not consider the relevant § 3553(a) factors (effectively the same argument as his procedural 

unreasonableness claim), assigned excessive weight to the misdemeanor conviction, and imposed 

a sentence greater than necessary to comply with § 3553(a)’s purposes. The Government responds 

that the district court’s isolated statement that it was not the “court’s job . . . to enforce the wanton 

endangerment charge, the state charge” shows that the court acted consistently with the imperative 

to sanction Byrd’s breach of trust (the new law violation while on supervised release) instead of 

the new law violation itself.
No. 19-5890, United States v. Byrd

-12-

Again, a review of the record shows that the only factors the district court weighed in 

sentencing Byrd were its view of the conduct underlying his state misdemeanor conviction and its 

comparison, in light of that conduct, of Byrd to other people on supervised release. True, 

“provided the district court has examined all the § 3553(a) factors, it may place greater weight on 

a particular factor if such weight is warranted under the facts of the case.” United States v. Sims, 

800 F. App’x 383, 386 (6th Cir. 2020); see also United States v. Bridgewater, 479 F.3d 439, 442 

(6th Cir. 2007) (“Not all [factors] are important in every sentencing; often one or two prevail, 

while others pale.”). But the district court did the latter without the former here.

A threshold concern is that the district court’s statements support the conclusion that it was 

effectively imposing a punishment for Byrd’s violation conduct instead of sanctioning the breach 

of trust of the supervised release. Only the latter is permissible. Johnson, 640 F.3d at 203. When 

§ 3553(a) speaks of “the nature and circumstances of the offense,” it refers to the offense of 

conviction, rather than the violation conduct. Id.; see also Johnson v. United States, 529 U.S. 694, 

701 (2000) (holding that “postrevocation penalties relate to the original offense”). “[C]onstruing 

revocation and reimprisonment as punishment for the violation of the conditions of supervised 

release” would raise “serious constitutional questions,” including double jeopardy concerns. 

Johnson, 529 U.S. at 700–01. As we have noted, the Guidelines “confirm this view” by 

characterizing violations as “breach[es] of trust” as opposed to “punishment . . . for new criminal 

conduct.” Johnson, 640 F.3d at 203; USSG Ch. 7, Pt. A, § 3(b), intro. comment. Adopting the 

latter approach “would have the revocation court substantially duplicate the sanctioning role of the 

court with jurisdiction over a defendant’s new criminal conduct.” USSG Ch. 7, Pt. A, § 3(b), intro. 

comment.
No. 19-5890, United States v. Byrd

-13-

Here, the state court—the court with jurisdiction over Byrd’s new criminal conduct—had 

convicted and sentenced Byrd. Byrd served time for that conduct. At Byrd’s subsequent 

revocation hearing, the district court remarked upon that conduct at length, highlighting “the most 

outrageous behavior I’ve seen from any defendant that has been on federal supervision.”

In Johnson, the court held that the district court had in fact “considered Johnson’s violation 

conduct to be a very serious breach of the trust embodied by the original sentence.” 640 F.3d at 

204. The Government asserts that the same is true here. But in Johnson, the measure of the 

severity of the breach of trust was not only the nature of the defendant’s violation conduct, or even 

offense conduct, but primarily the fact that the trust stemmed from the leniency of his original 

sentence. Id. Here, we are not presented with a situation in which the district court took into 

account a “lenient initial sentence for [the defendant’s] initial conviction,” which may support a 

finding of substantive reasonableness when the “relevant policy statement endorse[s] departing 

upward upon revocation in light of the downward departure applied to his original sentence.” Id.

at 209; see USSG § 7B1.4, p.s., comment. (n.4). Instead, Byrd was originally sentenced to the low 

end of his Guidelines range. Byrd, 689 F.3d at 639.

Even assuming the district court was sanctioning the breach of trust rather than the 

violation conduct, the question of whether it improperly weighed the § 3553(a) factors remains. 

Our recent decision in Warren, 771 F. App’x at 637, is instructive on this issue. There, the district 

court imposed the statutory maximum sentence, “roughly doubling” the high end of the Guidelines 

range. Id. at 643. “[T]he district court engaged in a thorough discussion” of multiple § 3553(a) 

factors and noted the large disparity the statutory maximum produced, but “the only reason the 

court gave for that disparity was [the defendant’s] criminal record.” Id. at 641. We held that 

“because the Guidelines already account for a defendant’s criminal history, imposing an extreme 
No. 19-5890, United States v. Byrd

-14-

variance based on that same criminal history is inconsistent with ‘the need to avoid unwarranted 

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

conduct,’” rendering the sentence substantively unreasonable. Id. at 642 (quoting 18 U.S.C. 

§ 3553(a)(6)) (citing United States v. Bistline, 665 F.3d 758, 767 (6th Cir. 2012); United States v. 

Borho, 485 F.3d 904, 912–13 (6th Cir. 2007)); see also Boucher, 937 F.3d at 708 (citing Warren, 

771 F. App’x at 641). When we have distinguished Warren, we have pointed to fuller explanations 

and smaller variances to justify substantive reasonableness findings. See Sims, 800 F. App’x at 

386–87; United States v. McBee, 812 F. App’x 318, 323 (6th Cir. 2020). The differences we have 

previously found salient emphasize the similarity of this case to Warren, counseling a similar 

outcome.

Indeed, Byrd’s case presents nearly the same problem as Warren’s, substituting seriousness 

of the offense3(or severity of breach of trust) for criminal history. In both cases, the district court 

imposed the statutory maximum over Guidelines that already took seriousness of the offense and 

criminal history into account. See USSG § 7B1.4(a), p.s. (incorporating grade of supervised 

release violation and criminal history into imprisonment ranges). In both cases, the district court 

approximately doubled the high end of the Guidelines range, requiring especially compelling 

reasoning. And in both cases, the district court conflated another sentencing factor—in Warren, 

criminal history; here, seriousness of the offense—with the need to avoid disparities, pointing to 

the former as justifying the disparity. In Warren, these facts made the sentence substantively 

unreasonable absent highly compelling justification; so too, here.

3 Byrd and the Government dispute the extent to which the district court could permissibly rely on its view of the 

conduct underlying Byrd’s misdemeanor conviction, drawing on Mousty’s testimony. The Government has the better 

of this argument: “‘revocation hearings are more flexible’ than criminal trials,” and district courts may consider both

“reasonably reliable” hearsay and acquitted conduct. United States v. Thompson, 314 F. App’x 797, 799 (6th Cir. 

2008) (quoting United States v. Stephenson, 928 F.3d 728, 732 (6th Cir. 1991)). Byrd also does not clearly dispute 

the version of events the district court described. 
No. 19-5890, United States v. Byrd

-15-

In the Government’s telling, though, this calculus is valid. It refers to United States v. 

Flores, 506 F. App’x 468, 470 (6th Cir. 2012) (per curiam), for the proposition that the seriousness 

of a new law violation alone can justify an upward variance. This is true: it can serve as the 

“specific reason” needed to vary upwards. Johnson, 640 F.3d at 205–206; see also 18 U.S.C. 

§ 3553(c)(2); Gall, 552 U.S. at 50. But this is just part of the substantive reasonableness 

obligation; the district court also must reasonably consider and weigh the appropriate § 3553(a) 

factors. Compliance with one does not excuse failure to carry out the other. To the extent that 

Flores—which dealt with the defendant’s substantive reasonableness arguments in just a few 

sentences—might be read to absolve the district court of this responsibility to consider and weigh 

the appropriate § 3553(a) factors, our published cases have held otherwise. See, e.g., Boucher, 

937 F.3d at 707–09.

The Government also cites United States v. Kirby, 418 F.3d 621 (6th Cir. 2005), to argue 

that similarity between conviction offense conduct and violation conduct can support the 

imposition of a statutory maximum sentence. However, Kirby is meaningfully different from this 

case—sufficiently different to provide support for a finding of substantive unreasonableness here. 

Kirby, who had been convicted of possession and theft of mail matter, twice violated her 

supervised release conditions by stealing money and merchandise. Id. at 623, 628. The district 

court revoked her supervised release as a result. Id. at 628. After her release from custody, she 

was placed on supervised release again and began passing stolen checks, and the district court 

imposed the statutory maximum sentence. Id. We held that “Kirby’s case presents the classic 

situation in which imposition of the statutory maximum sentence upon revocation of supervised 

release is appropriate” because “she continued to engage in criminal activities similar to the crime 

for which she was originally convicted” and because of her “repeated transgressions.” Id. Thus, 
No. 19-5890, United States v. Byrd

-16-

the holding of Kirby, and cases similar to it, see, e.g., United States v. Wells, 443 F. App’x 997, 

998–99 (6th Cir. 2011), is not that similarity between conviction and violation conduct alone

necessarily justifies a statutory maximum sentence. Byrd, in contrast to those defendants, had not 

previously violated the conditions of his supervised release. And unlike Kirby, “who concede[d] 

that the district court considered the relevant statutory factors,” Byrd maintains that the district 

court did not carry out this necessary first step. Kirby, 418 F.3d at 628. Kirby, while binding 

authority, is therefore inapplicable here.

Though we agree with the district court that Byrd broke the law, his sentence was 

substantively unreasonable. Without considering the relevant § 3553 factors, the district court 

assigned excessive weight to Byrd’s misdemeanor convictions and imposed an unreasonably long 

sentence. “On the record before us, the district court failed to provide a sufficiently compelling 

justification to impose the greatest possible upward variance under the statute.” Warren, 771 F. 

App’x at 643 (citing Gall, 552 U.S. at 50, United States v. Stall, 581 F.3d 276, 281–82 (6th Cir. 

2009)).

III. CONCLUSION

For the reasons discussed above, we VACATE the district court’s order revoking Byrd’s 

supervised release and REMAND with instructions to resentence in a procedurally and 

substantively reasonable manner as detailed above, including providing sufficient explanation to 

enable meaningful appellate review.
No. 19-5890, United States v. Byrd

-17-

HELENE N. WHITE, Circuit Judge, concurring in the judgment. Although I do not 

join in every criticism voiced by the majority, I agree that we must remand for a resentencing that 

provides “sufficient explanation enabling appellate review.”