UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

____________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

MICHAEL ALVARES FYKES, 

 Defendant-Appellant. 

 No. 16-1034 

(D.C. No. 1:15-CR-00221-RBJ-1) 

 (D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT* 

_________________________________ 

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

_________________________________ 

 This appeal involves issues of probable cause, the meaning of 

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

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

 

*

 This order and judgment does not constitute binding precedent 

except under the doctrines of law of the case, res judicata, and 

collateral estoppel. But the order and judgment may be cited for its 

persuasive value under Fed. R. App. P. 32.1(a) and Tenth Cir. R. 

32.1(A). 

  The Honorable Neil Gorsuch heard oral argument but did not 

participate in this order and judgment. The practice of this court 

permits the remaining two panel judges if in agreement to act as a 

quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also 

United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997) 

(noting that this court allows remaining panel judges to act as a 

quorum to resolve an appeal). 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 3, 2017 

Elisabeth A. Shumaker 

Clerk of Court
2 

sedan were forcing a woman to engage in prostitution. The 911 call led the 

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

defendant, Mr. Michael Fykes. 

The police then searched the sedan and found a backpack containing 

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

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

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

handgun inside the backpack. 

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

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

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

release. 

Mr. Fykes raises two challenges to his conviction. 

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

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

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

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

Second, Mr. Fykes challenges the jury instruction defining 

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

include an element of constructive possession: intent to exercise dominion 

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

thus, we apply the plain-error standard. 
3 

The government concedes the existence of an obvious error. The 

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

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

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

at trial. The parties presented dramatically opposed theories: The 

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

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

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

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

little difference. Other circumstances could conceivably have suggested 

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

the error prejudicial. 

 Mr. Fykes also challenges the procedural and substantive 

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

prison term that exceeded the guideline range, explaining that the 

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

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

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

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

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

I. Probable Cause 
4 

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

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

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

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

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

arrests. This conclusion was correct. 

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

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

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

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

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

Cir. 2014). 

The Fourth Amendment provides: 

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the 

persons or things to be seized. 

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

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

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

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

Amendment. Id. Thus, the police would ordinarily need a warrant to search 
5 

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

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

requirement. 

The government relies on the exception for inventory searches. Under 

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

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

76 (1976).1

 One such circumstance is when the police impound a vehicle 

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

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

 Mr. Fykes contends that the evidence should have been excluded 

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

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

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

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

the inventory search would ordinarily have been inadmissible. See Wong 

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

police could impound the vehicle and conduct an inventory search because 

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

Probable cause exists when “under the totality of the circumstances 

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

 

1

 The search must follow standard law enforcement procedures. 

Opperman, 428 U.S. at 372. But Mr. Fykes does not challenge the search 

based on a failure to follow standard law enforcement procedures. 
6 

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

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

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

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

Trueblood had committed two Colorado crimes, human trafficking and 

pimping. 

Colorado law defines human trafficking and pimping: 

[Human trafficking:] A person who knowingly sells, recruits, 

harbors, transports, transfers, isolates, entices, provides, 

receives, or obtains by any means another person for the 

purpose of coercing the person to engage in commercial sexual 

activity commits human trafficking for sexual servitude. 

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

servitude”). 

[Pimping:] Any person who knowingly lives on or is supported 

or maintained in whole or in part by money or other thing of 

value earned, received, procured, or realized by any other 

person through prostitution commits pimping, which is a class 

3 felony. 

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

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

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

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

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

location. At the end of the call, Alfred explained that the woman had left 
7 

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

transcript). 

The information from the call was transmitted to some responding 

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

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

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

call. R. vol. 6, at 117.

Before Detective Reid arrived at the scene, the other responding 

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

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

Id. at 53, 126. 

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

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

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

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

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

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

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

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

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

story was truthful. 
8 

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

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

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

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

victimized by human trafficking. 

Detective Reid then spoke to the other responding officers, who 

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

decided to arrest Mr. Fykes and Mr. Trueblood. 

The issue here is whether Detective Reid’s information constituted 

probable cause to believe that the men were committing human trafficking 

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

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

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

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

whether these inferences would have been reasonable based on the facts 

known to Detective Reid. 

The reasonableness of these inferences turns primarily on Alfred’s 

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

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

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

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

reliability, and basis of knowledge” and (2) other indicia of a tip’s 
9 

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

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

factors support Alfred’s reliability. 

Veracity. Veracity is often suggested by a tipster’s 

 making of an admission against penal interest, 

 use of the 911 emergency system, 

 making of a contemporaneous report, and 

 self-identification.2

All of these factors suggested that Alfred was honest. Alfred 

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

the 911 emergency system, provided his observations contemporaneously 

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

the reliability of Alfred’s information. 

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

observation is entitled to greater weight than secondhand information.” 

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

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

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

1338 (10th Cir. 2011). 

 

2

 See Navarette v. California, 134 S. Ct. 1683, 1689-90 (2014) 

(911 emergency system and contemporaneous reporting); United 

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

(against penal interest); United States v. Copening, 506 F.3d 1241, 

1247 (10th Cir. 2007) (self-identification). 
10 

Alfred observed the events firsthand and provided specific, personal 

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

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

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

this factor suggests that Alfred’s information was reliable. 

Corroboration. Detective Reid corroborated much of the information 

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

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

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

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

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

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

That sedan partially matched Alfred’s description,3

 and Mr. Fykes admitted 

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

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

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

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

 

3

 Alfred’s description of the sedan was not perfect. The sedan was 

described as a red four-door Chevy Malibu, but it was actually a red fourdoor Pontiac. R. vol. 6, at 67. We consider this inconsistency as part of the 

“totality of the circumstances,” but the inconsistency is minor and does not 

preclude probable cause. See United States v. Traxler, 477 F.3d 1243, 1247 

(10th Cir. 2007) (explaining that a “minor inconsistency in the informant’s 

tip”—that the defendant’s truck was white, but the informant had reported 

it as black—did not defeat a finding of probable cause in light of the other 

circumstances). 
11 

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

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

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

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

1339. We concluded that this information had “provided sufficient 

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

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

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

 the tipster made an incriminating statement and 

 the arresting officers independently corroborated the substance 

of the tip. 

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

reliable. 

* * * 

Mr. Fykes denies probable cause, contending that 

 after receiving the 911 call, the police did not receive any 

additional evidence of a crime and 

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

was Alfred. 

The first assertion is incorrect. Detective Reid obtained new information 

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

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

based on an advertisement in backpage.com. The second assertion is not 
12 

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

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

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

Detective Reid observed. 

* * * 

We conclude that Detective Reid reasonably believed that the woman 

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

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

Mr. Trueblood were engaged in human trafficking or pimping.4

 In light of 

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

Mr. Fykes’s motion to suppress. 

 

 

4

 Mr. Fykes suggests that Detective Reid’s failure to specify the 

charge for Mr. Fykes’s arrest precludes a finding of probable cause. We 

disagree. If an officer objectively has probable cause to believe that a 

crime has been committed, the officer’s intentions are irrelevant. Quinn v. 

Young, 780 F.3d 998, 1006 (10th Cir. 2015). 
13 

II. The Jury Instruction 

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

The jury reached this finding after being instructed on constructive 

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

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

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

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

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

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

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

under the plain-error standard. 

A. The Change in the Law 

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

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

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

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

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

1177, 1182 (10th Cir. 2016). 

B. The Plain-Error Standard 

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

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

1190 (10th Cir. 2005). The plain-error standard contains four elements: 
14 

1. The district court made an error. 

2. The error was plain. 

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

4. The error seriously affected the fairness, integrity, or public 

reputation of judicial proceedings. 

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

omitted). 

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

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

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

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

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

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

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

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

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

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

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

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

has not satisfied that burden. 

 
15 

C. The Trial and the Parties’ Theories 

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

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

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

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

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

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

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

Trueblood.

The government disputed this account, arguing that the handgun was 

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

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

backpack’s contents: 

 Mr. Fykes’s passport, 

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

document, 

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

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

seat. 

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

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

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

phone chargers were generic and fit many cell phones (including Mr. 
16 

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

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

fingerprint on the laptop was not his.5

 

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

forgotten about his passport or left his medical document on another 

person’s computer.6

 The government also pointed out that Mr. Trueblood 

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

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

D. Absence of Prejudice 

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

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

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

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

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

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

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

 

5

 In addition, Mr. Fykes pointed out that although Mr. Trueblood had 

told the police he did not own any guns, Mr. Trueblood had purchased an 

unrelated firearm in May 2014. As a police officer testified, however, Mr. 

Trueblood could have sold the firearm before being confronted by police in 

February 2015. 

6

 The document contained psychological and financial information that 

Mr. Fykes testified he had not told anyone about. In addition, Mr. Fykes 

admitted that when he had allegedly downloaded the document onto the 

computer, he had known Mr. Trueblood for only about one to three months. 
17 

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

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

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

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

handgun. 

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

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

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

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

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

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

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

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

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

This conclusion is consistent with our case law. Typically, 

defendants can satisfy their burden on prejudice by presenting a 

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

example, we have found prejudice when an erroneous instruction allowed 

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

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

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

No 15-1295, slip op. at 43-46 (10th Cir. Jan. 10, 2017) (to be published) 
18 

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

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

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

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

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

omitted the mens rea element of voluntary manslaughter and the 

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

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

when a jury question suggested confusion over the substance of the 

instruction’s error). 

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

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

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

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

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

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

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

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

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

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

evidence [improperly] in determining the[] [defendant’s] guilt.”). 
19 

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

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

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

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

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

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

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

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

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

instructions on constructive possession did not affect the defendant’s 

substantial rights because the jury had apparently credited the 

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

even if the jury had been correctly instructed). 

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

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

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

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

jury instruction. 

III. The 60-Month Sentence 

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

above the applicable guideline range. In doing so, the court pointed to Mr. 
20 

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

sentence is procedurally and substantively unreasonable. We disagree. 

A. The Sentencing

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

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

explained the reasons for deviating from that range. 

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

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

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

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

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

was based on a conviction for driving while intoxicated. 

 After calculating the guideline range, the district court concluded 

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

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

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

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

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

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

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

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

charges. Id. at 816 (“It doesn’t appear to me that this youngster has learned 
21 

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

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

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

taking that into consideration.”). 

These considerations led the district court to impose a sentence nine 

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

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

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

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

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

B. Procedural Reasonableness 

We review a sentence for reasonableness, asking whether the court 

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

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

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

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

sentence.” Id. We reject this argument.

1. Combination of a Departure and Variance 

Mr. Fykes contends that the district court procedurally erred by 

departing from the applicable sentencing range without providing the 

necessary notice. But Mr. Fykes did not object in district court to the 
22 

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

See pp. 13-14, above. 

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

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

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

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

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

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

failure to provide notice constituted an obvious error. 

Nonetheless, the challenge would fail at the third prong of the plainerror standard because the error was not prejudicial. The deviation 

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

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

(2008). 

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

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

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

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

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

the sentence. 

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

does not need to choose one over the other, and the court does not 
23 

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

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

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

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

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

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

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

added)). 

The court unambiguously stated that it was both departing and 

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

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

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

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

standard. 

2. Adequacy of the Explanation for the Variance 

Mr. Fykes also argues that a variance would be procedurally 

unreasonable because the district court failed to properly discuss the 

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

challenge in district court; thus, we review this challenge under the plainerror standard. See pp. 13-14, above. Because the court properly discussed 

the § 3553(a) factors, we reject Mr. Fykes’s challenge. 
24 

District courts have discretion to impose non-guideline sentences. 

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

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

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

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

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

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

based on the facts and the § 3553(a) sentencing factors.7

 18 U.S.C. 

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

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

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

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

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

833 (10th Cir. 2008).

The district court properly exercised its discretion to vary from the 

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

 

7

 We have summarized the § 3553(a) factors: 

(1) the nature and circumstances of the offense and the history 

and characteristics of the defendant; (2) the need for the 

sentence imposed; (3) the kinds of sentences available; (4) the 

recommended Guidelines range; (5) the policies underlying the 

Guidelines; (6) the need to avoid unwarranted sentencing 

disparities; and, (7) the need for restitution to any victims. 

United States v. Sanchez-Leon, 764 F.3d 1248, 1262 n.9 (10th Cir. 2014). 
25 

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

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

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

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

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

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

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

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

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

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

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

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

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

procedurally reasonable. 

C. Substantive Reasonableness 

Finally, Mr. Fykes challenges the substantive reasonableness of his 

sentence. We reject this challenge. 

“Substantive reasonableness involves whether the length of the 

sentence is reasonable given all the circumstances of the case in light of 

the factors set forth in 18 U.S.C. § 3553(a).” United States v. Lente, 759 

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

F.3d 1167, 1169 (10th Cir. 2007)). We review the substantive 
26 

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

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

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

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

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

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

his 1992 crack-cocaine conviction.8

 Appellant’s Opening Br. at 36. Mr. 

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

the guideline range and resulting sentence for that conviction would have 

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

history points for use in the present case.9

 We reject this assertion because 

the district court 

 

8

 The government argues that this challenge involves procedural 

reasonableness but not substantive reasonableness. We disagree. 

Mr. Fykes’s brief does contain some stray statements that implicate 

procedural reasonableness. For example, in his summary of argument and 

one of his argument headings, Mr. Fykes states that the court improperly 

calculated his guideline range; this challenge would be procedural rather 

than substantive. United States v. Hamilton, 587 F.3d 1199, 1219 (10th 

Cir. 2009). But Mr. Fykes does not support this assertion with any 

argument. Any such procedural argument is therefore waived. United 

States v. Hamilton, 510 F.3d 1209, 1218 n.5 (10th Cir. 2007). 

9

 In district court, Mr. Fykes did not object to the substantive 

reasonableness of his sentence. Defendants need not object to preserve a 

claim that a sentence is unreasonably long. United States v. VasquezAlcarez, 647 F.3d 973, 976 (10th Cir. 2011). But we have suggested that a 

defendant may forfeit the specific argument being made here: that the 
27 

 provided a reasonable explanation for declining to shorten the 

sentence based upon the 1992 conviction and 

 otherwise justified the extent of the variance.

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

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

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

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

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

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

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

whimsical, or manifestly unreasonable. 

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

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

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

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

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

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

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

 

“sentence’s accounting for [an] old conviction is substantively 

unreasonable.” Id. at 976-77.

We face the same potential issue here, but “we need not decide 

whether there was forfeiture because [Mr. Fykes’s] sentence can be 

affirmed under either plain error or abuse of discretion review.” Id. at 977. 
28 

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

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

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

The district court explained the variance, expressing dissatisfaction 

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

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

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

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

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

sentence was substantively reasonable. 

IV. Disposition 

For these reasons, we affirm the conviction and sentence. 

Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge