UNITED STATES CO URT 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 reas onableness of a sentence. The case began with a 911 call, in which the caller stated that two men in a red

* This order and judg ment does not constitut e binding precedent except under the do ctrines 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 he ard oral argume nt but did not participate in this or der and judgment. The practice of this court permits the remaining two panel judge s if in agreemen t 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 re maining panel judg es to act as a quorum to resolv e an appeal). FILED United States Court of Appeals Tenth Circuit February 3, 2017 Elisabeth A. Shumaker Clerk of Court2 sedan were forcing a woma n 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 search ed the sedan and found a backpack containing a handgun. Mr. Fykes admitt ed that he owned the backpack but denied ownership of the handgun; he claimed that he had lo aned 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 und er 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 challe nges to his conviction. First , Mr. Fykes asserts that the police lacked pr obable cause for the arrests. Absent probable cause, the police coul d not later conduct an inventory search of th e sedan and find the ha ndgun. We reject this assertion, holding that the police ha d probable cause for the arrests. Second , Mr. Fykes challenges the jury instruction defining “constructive possession.” As Mr. Fyke s argues, the instruction failed to include an element of co nstructive possession: inte nt to exerci se dominion or control over th e handgun. This challe nge was not raised in district court; thus, we apply the plain-error standard.3 The government concedes the existe nce of an obvio us error. The dispositive issue is whether the omission of the intent el ement affected Mr. Fykes’s substantial rights by creating prejudice. Mr. F ykes 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 ow ned the gun; he denied ownership. The finding of guilt s uggests that the jury credited the government’s argument that Mr. Fykes had owned the gun. If the jury rega rded Mr. Fykes as the owner of the gun, th e error in the jury inst ruction would have made little difference. Other ci rcumstances could concei vably 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 guidel ine range, explai ning that the guidelines did not fully account for Mr. Fykes’s extensive criminal history and lack of remorse. These factors le d the court to apply both a departure and a variance. The court erred by de parting because departures require notice, which the cour t failed to provide. But the variance was procedurally and substantively reason able. Thus, we affirm the sentence. I. Probable Cause4 In district court, Mr. Fykes move d to suppress ev idence that a gun had been in the backpack. In the mo tion, he argued th at the police had lacked probable cause fo r the arrests, which would have precluded the subsequent inventory search of the se dan. The district court denied the motion to suppress, conc luding that the police ha d probable cause for the arrests. This conc lusion was correct. In determining whether probable caus e existed, we engage in de novo review. United States v. Huff , 782 F.3d 1221, 1225 (10th Cir. 2015). Through this review, we co nsider the eviden ce in the light most favorable to the prosecution and acce pt the trial court’s fact ual findings unless they are clearly erroneous. United States v. Brinson , 772 F.3d 1314, 1324 (10th Cir. 2014). The Fourth Ame ndment provides: The right of the people to be secure in their person s, houses, papers, and effects, against unre asonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, suppo rted by Oath or affirmation, and particularly describing the place to be sear ched, and the persons or things to be seized. U.S. Const. amend. IV. The Fourth Amendment requires a warrant to search one’s “effects” unle ss 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 search5 the sedan. Because the po lice had no warrant, the presence of the firearm would be admissible only upon satisfaction of an ex ception to the warrant requirement. The government relies on the exception for inve ntory searches. Under this exception, the po lice may inventor y a vehicle’s contents under appropriate circumstances. South Dakota v. Opperman , 428 U.S. 364, 369- 76 (1976). 1 One such circumstan ce is when the po lice impound a vehicle that would otherwis e 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 evid ence should have been excluded based on the absence of pr obable cause for the arrest s. If either arrest was unlawful, the police coul d not have impounded and inventoried the sedan, for Mr. Fykes or Mr. True blood could have driven the sedan away. And in the absence of a lawful impoundment or inve ntory, 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 ou r view, the police could impound the vehicle and c onduct 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 standa rd 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 en forcement procedures.6 being committed by the person arrested.” United States v. Muñoz-Nava , 524 F.3d 1137, 1144 (10t h 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 reason ably believe that Mr. Fykes and Mr. Trueblood had comm itted 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 coerci ng the person to engage in commercial sexual activity commits human traffick ing for sexual servitude. Colo. Rev. Stat. § 18-3-504(1)(a) (“Human traffick ing for sexual servitude”). [Pimping:] Any person who knowin gly 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 comm its pimping, which is a class 3 felony. Colo. Rev. Stat. § 18-7-206 (“Pimping”). The police received a 911 call from a man (Alfre d) 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 na me and provided the police with his location. At the end of the call, Alfred explained that the woman had left7 the apartment and had possibly entered th e sedan. R. vol. 1, at 174-75 (911 transcript). The information from the call wa s transmitted to some responding officers, who had callscreens in their vehicles. Det ective Reid did not have a callscreen in her vehicle, but the in formation she receive d 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 c onversations, Mr. Fykes admitted that that he and Mr. Truebl ood had come to pi ck up the woman. Id. at 53, 126. Upon arrival, Detectiv e Reid observed the woman and tried to speak with her. According to Detective Re id, the woman was cr ying 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 woma n for sexual services, finding her on a website (backpage.com). Id. at 121-22. From expe rience, Detective Reid knew that (1) prostitute s frequently advertise on backpage.com for sexual services and (2) individuals like Al fred do not typically admit to hiring prostitutes. This knowledge solidified Detective Reid’s be lief that Alfred’s story was truthful.8 After speaking with Alfred, Detectiv e Reid again tried to speak with the woman. By this point, the woma n had begun to shake more violently and said that she was ha ving 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 th en spoke to th e other responding officers, who shared what th ey had learned. Following that discussion, Detective Reid decided to arrest Mr. Fykes and Mr. Trueblood. The issue here is whet her Detective Reid’s information constituted probable cause to believ e that the men were co mmitting human trafficking or pimping. For probable cause, the information had to be sufficient for Detective Reid to reasonably infer th at 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 Detect ive 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 Ci r. 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) othe r indicia of a tip’s9 reliability, such as corr oboration by an officer’s independent observations. Id. ; United States v. Hendrix , 664 F.3d 1334, 1338 (10t h Cir. 2011). These factors support Alfr ed’s reliability. Veracity . Veracity is often sugg ested by a tipster’s

 making of an ad mission against penal interest,

 use of the 911 em ergency system,

 making of a contempo raneous report, and

 self-identification. 2 All of these factors suggested th at Alfred was honest. Alfred acknowledged his own crime (hiring a prostitute for se xual services), used the 911 emergency system, provided his ob servations contemporaneously as the events unfolded, an d identified himself. Th us, this factor supports the reliability of Al fred’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 fi rsthand 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) (s elf-identification).10 Alfred observed the events firsth and and provided specific, personal details showing his firsthand knowle dge: He descri bed 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 Alfr ed’s information was reliable. Corroboration . Detective Reid corroborate d much of the information provided in the 911 call. For exampl e, the woman’s frightened demeanor matched Alfred’s description and was co nsistent 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, Detectiv e 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 th e police found an indivi dual carrying drugs who said that he had bought the drug s 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 Ma libu, but it was actu ally a red fourdoor Pontiac. R. vol. 6, at 67. We consider this inconsistency as part of the “totality of the circumstances,” but th e 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 “min or inconsistency in the info rmant’s tip”—that the defendant’s truck was wh ite, but the inform ant had reported it as black—did not defeat a finding of probable caus e in light of the other circumstances).11 F.3d at 1339. The police conf irmed that a motel ex isted at the address provided and that the sp ecific room was occupied. Id. When the police knocked on the motel ro om door and identified themselves, they heard movement, doors opening and clos ing, and a toilet flushing. Id. at 1337, 1339. We concluded that this information had “provided sufficient independent corrobora tion” of the informant’s tip to supply probable cause for a search of the motel room. Id. at 1339. Our case is si milar. In both Hendrix and our case,

 the tipster made an incr iminating statement and

 the arresting officers independently corrobor ated 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. Det ective Reid obtained new information when she arrived on the scene. For instance, she obse rved the woman’s demeanor and learned th at Alfred had hired the woman as a prostitute based on an advertisemen t in backpage.com. The second assertion is not12 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 ha ppening 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 dist rict court’s denial of Mr. Fykes’s motion to suppress.

4 Mr. Fykes suggests that Detect ive Reid’s failur e to specify the charge for Mr. Fykes’s arrest preclude s a finding of probable cause. We disagree. If an officer ob jectively has probable cau se to believe that a crime has been committed, the offi cer’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 exer cise dominion or control over an object, either directly or through another person or person s, is then in constructive possession of it.” R. vol. 1, at 418. Un der 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 challe nges this instruction. We reject the challenge under the plain-error standard. A. The Change in the Law During this appeal, the law chan ged when our court held that constructive possession contains an additional element: in tent. It is now no longer enough to show that Mr. Fykes knew a bout the handgun and could control it. Instead, the gov ernment 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 defe ndant’s substantial rights. 4. The error seriously a ffected the fairness, integrity, or public reputation of judicial proceedings. United States v. Mendiola , 696 F.3d 1033, 1036 (10t h Cir. 2012) (citation omitted). The government concedes that the first two prong s of the plain-error test are satisfied: the existe nce of an error and the plain nature of the error. We agree with the parties that th e first two prongs are satisfied. The parties’ disagreement invo lves the third and four th prongs: whether the error (1) affected Mr. Fykes’s substan tial 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 hi s substantial rights. United States v. Gonzalez-Huerta , 403 F.3d 727, 733 (10th Cir. 2005) (en banc). To sa tisfy that burden, Mr. Fykes “must show ‘a reasonable probabili ty 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 backpa ck 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 af ter loaning it to Mr. Trueblood. The government disputed this account, arguin g that the handgun was Mr. Fykes’s. To support this theory, the government pointed to other items inside the backpack th at suggested Mr. Fyke s’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 cigarill os like those found close to Mr. Fykes’s seat. In response, Mr. Fykes claimed th at he had forgotten that his passport was inside his backpack, that he had previously used the laptop computer to check his email and dow nload the document, that the cell phone chargers were generic and f it 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 lik ely have forgotten about his passport or left his medical document on another person’s computer. 6 The government also pointe d out that Mr. Trueblood already had his cell phone chargers. Finally, the government’s expert testified that it was unco mmon for fingerprints to be found on handguns. D. Absence of Prejudice The jury found that Mr. Fykes had posse ssed the handgun . The jury was not instructed on intent, but nece ssarily rejected Mr. Fykes’s “lack of knowledge” theory. Faced with the parties’ dual theories, the jury likely adopted the government’s theory that the ha ndgun was Mr. Fykes’s. Mr. Fykes argues that the jury might have harbored doubt about intent. For instance, th e 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. Fy kes pointed out that al though Mr. Trueblood had told the police he did not own any guns, Mr. True blood had purchased an unrelated firearm in May 2014. As a police officer testified, however, Mr. Trueblood could have sold the firearm before being confr onted by police in February 2015.

6 The document containe d psychological and financial information that Mr. Fykes testified he ha d 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 abou t one to three months.17 this scenario, the jury would have found guil t under the er roneous jury instruction but found Mr. Fykes not guilty under a proper instruction. We reject this contenti on. In light of th e parties’ theories and the evidence presented, the jury more likely rega rded Mr. Fykes as the owner of the handgun. The jury did not reject Mr. Fykes’s “lack of knowledge” th eory in a vacuum. The government ha d linked Mr. Fyke s to the contents of the backpack through the pass port, laptop, cigarillos, and cell-phone chargers. The government did not sugg est 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 th e handgun and was using his backpack. That belief would likely have caused the jury to find an intent to exercise dominion or control of th e handgun. In these circumstances, we conclude that Mr. Fykes ha s not satisfied hi s burden to show prejudice. This conclusion is consistent with our case law. Typically, defendants can satisfy their bu rden on prejudic e by presenting a compelling reason to beli eve that the jury might have been misled. For example, we have found prejudice when an errone ous instruction allowed the jury to improperly circumvent th e defendant’s trial theory, when the prosecutor invited the jury to rely on the instruction’s erro r, 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. Ja n. 10, 2017) (to be published)18 (finding a likelihood of pr ejudice when the prosecutor inv ited 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 pr ejudice when the jury instruction omitted the mens rea element of voluntary manslaughter and the defendant’s trial theory ce ntered on th at element); United States v. Duran , 133 F.3d 1324, 1333 (10th Cir. 1998) (finding a lik elihood of prejudice when a jury question s uggested 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 conc lusory, speculative statem ent that the jury was misled by an erroneou s jury instruction. For example, we have declined to find prejudice when the defendant simp ly explains how the instruction’s erroneous language could theoretically have misled the ju ry, but fails to provide any supporting reas on for how the ju ry in that pa rticular case might have been misled. See United States v. Zapata , 546 F.3d 1179, 1191 (10th Cir. 2008) (“This unsupported stat ement, [explaini ng that the language of the erroneous jury instruction could have misled the jury,] without more, is not enoug h to show that jurors did, in fact, consider evidence [improperly] in determini ng the[] [defendant ’s] guilt.”).19 Mr. Fykes has not provided any sp ecific reason to believe that the jury might have been misled by the erroneous jury inst ruction. And, as explained above, his trial theory suggests that th e instruction had little impact on the outcome. At trial, Mr. Fykes argue d that he had not known that the handgun wa s 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 verd ict, 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 al leged error in jury instructions on constructive possessi on did not affect the defendant’s substantial rights becau se 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 do minion or control over the gun. Accordingly, we reject Mr. Fykes’s challenge to the erroneous jury instruction. III. The 60-Mon th Sentence After the jury found gu ilt, the district cour t sentenced Mr. Fykes above the applicable guidel ine range. In doi ng so, the court pointed to Mr.20 Fykes’s criminal history and lack of remorse. Mr. Fykes argues that his sentence is procedurally and substa ntively unreasonable. We disagree. A. The Sentencing The district court sentenced Mr. Fykes to 60 months’ imprisonment. In deciding on this se ntence, the court calculate d the guideline range and explained the reasons for deviating from that range. The court calculated the guideline range at 41 to 51 mo nths. For this calculation, the court noted that Mr. Fykes’s base level was 20. The court then found th at Mr. Fykes’s criminal histor y category was 3, as he had 4 criminal-history poin ts. Three of the criminal-his tory points we re 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 di strict 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 bo thers me about this case, mostly, is that I think the criminal-history level of III[] . . . subs tantially understates his criminal history.”). Th e court noted that Mr . Fykes had numerous convictions not tr iggering criminal -history points. Id. at 818-820. In addition, the court considered Mr. Fyke s’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 learned21 his lesson, as he gets into middle age.”); id. at 821 (“And it bothers me that he just blows these things off an d 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 guidelin e range. The court characterized the sentence as both a departure and a va riance. When the probation officer asked the court whether the sentence was a depart ure 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 ri ght on the other.” Id. at 823-24. B. Procedural Reasonableness We review a sentence for reasonab leness, asking wh ether the court abused its discretion. United States v. Lente , 759 F.3d 1149, 1155 (10th Cir. 2014). Reasonableness has proced ural and substant ive components. Id. Mr. Fykes first invokes th e procedural component, e ssentially arguing that the district court did no t “us[e] the proper me thod to calculate the sentence.” Id. We reject this argument. 1. Combination of a Depa rture and Variance Mr. Fykes contends that the distri ct court procedurally erred by departing from the applicable sent encing range wit hout provid ing the necessary notice. But Mr. Fykes did no t object in distri ct court to the22 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 de part from the applicable sentencing range on a ground not identified for de parture either in the pr esentence report or in a party’s prehearing submission, the cour t must give the pa rties 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 cons tituted an obv ious error. Nonetheless, the challenge would fail at the third prong of the plainerror standard because the error was not prejud icial. 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 on ly a departure, not a variance. For this contention, Mr. Fykes states that the or al pronouncement was ambiguous, requiring us to cons ider the written j udgment. According to Mr. Fykes, the writt en judgment supports ch aracterization of the sentence solely as a departure. We re ject Mr. Fykes’s characterization of the sentence. A district court may issue both a va riance and a departure; the court does not need to choo se one over the other, and the court does not23 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 se ntencing 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 determin e whether the district court departed upward, varied upward, or both departed and varied upward . . . .” (emphasis added)). The court unambiguously stated th at 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 an d a variance, the failure to provide advance notice was not prej udicial under the third pr ong of the plain-error standard. 2. Adequacy of the Explan ation 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 distri ct court; thus, we review th is challenge under the plainerror standard. See pp. 13-14, above. Because the court properly discussed the § 3553(a) factors, we rej ect 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 “consid ered the parties’ argumen ts 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 ba sis, the court must explai n its sentenci ng 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 ev ery factor is unnecessary. United States v. Gantt , 679 F.3d 1240, 1249 (1 0th 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 proper ly exercised its discretion to vary from the guidelines. The court pointed to Mr. Fy kes’s criminal history and lack of

7 We have summarized the § 3553(a) factors: (1) the nature and ci rcumstances of the offense and the history and characteristics of the defe ndant; (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 fo r 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 hist ory and characteristics of the defendant”); id. § 3553(a)(2) (“the need fo r the sentence imposed”). At oral argument, Mr. Fykes acknowl edged that these are appropriate justifications for an upward variance. But he argued that the court mentioned those justifications only to support a departur e, not a variance. In his view, “[t]he court gave no ‘spe cific reasons’ why it was imposing [a variance] and instead gave only one hypoth etical reason why it might do so.” Appellant’s Openin g Br. at 26 (quoting 18 U.S.C. § 3553(c)(2)). We disagree. The court noted Mr. Fy kes’s criminal history and lack of remorse and then observed that a variance would be ap propriate if the criminal-history level had been und erstated by the guidelines. These comments suggest that the court was explaining its decision to vary upward as well as to depart upward. Thus, we concl ude that the sentence was procedurally reasonable. C. Substantive Reasonableness Finally, Mr. Fykes challenges the substantive reasonableness of his sentence. We reject this challenge. “Substantive reasonable ness involves whether the length of the sentence is reasonable give n 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 Ci r. 2014) (quoting United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007)). We review th e substantive26 reasonableness of a sentence for an abuse of discretion. Id. at 1158. “Under this standard, we will ‘deem a sentence unreas onable only if it is arbitrary, capricious, whimsical, or ma nifestly unreasonable.’” Id. (quoting United States v. Gantt , 679 F.3d 1240, 1249 (10th Cir. 2012)). According to Mr. Fykes, the distri ct court should have “equitably reduced” the sentence in light of a change in th e law affecting treatment of his 1992 crack-cocaine conviction. 8 Appellant’s Openi ng Br. at 36. Mr. Fykes argues that if his 1992 conviction had taken place under current law, the guideline range and re sulting sentence for that convict ion would have been shorter, rendering the convicti on 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 challeng e involves procedural reasonableness but not substantive reasonableness. We disagree. Mr. Fykes’s brief does contain some stray statements that implicate procedural reasonableness. For exampl e, in his summary of argument and one of his argument headings, Mr. Fykes states that the cour t improperly calculated his guideline ra nge; this challenge would be procedural rather than substantive. United States v. Hamilton , 587 F.3d 1199, 1219 (10th Cir. 2009). But Mr. Fyke s does not suppo rt 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. Defend ants 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 ha ve suggested that a defendant may forfeit the specific argument being made here: that the27  provided a reasonable explanati on for declining to shorten the sentence based upon the 1992 conviction and

 otherwise justif ied 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 dist rict court explained why it did not treat the 1992 conviction as stale. Th e court noted that even if the guideline rang e for that offense had been lower, there was no way to know whether the trial cour t in 1992 would have issu ed a sentence within the guideline range. This explanati on was not arbitrary, capricious, whimsical, or manife stly 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 doi ng so, we give “due defe rence” 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 ne ed not decide whether there was forfei ture 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 va riance, expressing dissatisfaction with the criminal-history category and explaining that if the category had been 1 level higher (4 rather than 3) , the guidelin e range would have been 51 to 63 months. The cour t 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 (10t h 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