United States v. Fykes

FILED
U n i t e d S t a t e s C o u rt o f A p p ea ls
T e nth C ir cu it
Februa ry 3, 2017
UNITED STATES COURT OF APPEALS
Elisa bet h A. Sh uma ker
Clerk of Court
FOR THE TENTH CIRCUIT
____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 16-1034
v. (D.C. No. 1:15-CR-00221-RBJ-1)
(D. Colo.)
MICHAEL ALVARES FYKES,
Defendant-Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH and O’BRIEN, Circuit Judges.  
_________________________________
This appeal involves issues of probable cause, the meaning of
constructive possession, and the reasonableness of a sentence. The case
began with a 911 call, in which the caller stated that two men in a red
*
This order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and
collateral estoppel. But the order and judgment may be cited for its
persuasive value under Fed. R. App. P. 32.1(a) and Tenth Cir. R.
32.1(A).

The Honorable Neil Gorsuch heard oral argument but did not
participate in this order and judgment. The practice of this court
permits the remaining two panel judges if in agreement to act as a
quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also
United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997)
(noting that this court allows remaining panel judges to act as a
quorum to resolve an appeal).
sedan were forcing a woman to engage in prostitution. The 911 call led the
police to arrest two occupants of a red sedan. One of them was the
defendant, Mr. Michael Fykes.
The police then searched the sedan and found a backpack containing
a handgun. Mr. Fykes admitted that he owned the backpack but denied
ownership of the handgun; he claimed that he had loaned his backpack to
the other man (Mr. Ron Trueblood), who presumably had placed the
handgun inside the backpack.
After a jury trial, Mr. Fykes was convicted under 18 U.S.C.
§ 922(g)(1), which prohibits a convicted felon from possessing a firearm.
The sentence included 60 months’ imprisonment and 3 years’ supervised
release.
Mr. Fykes raises two challenges to his conviction.
First, Mr. Fykes asserts that the police lacked probable cause for the
arrests. Absent probable cause, the police could not later conduct an
inventory search of the sedan and find the handgun. We reject this
assertion, holding that the police had probable cause for the arrests.
Second, Mr. Fykes challenges the jury instruction defining
“constructive possession.” As Mr. Fykes argues, the instruction failed to
include an element of constructive possession: intent to exercise dominion
or control over the handgun. This challenge was not raised in district court;
thus, we apply the plain-error standard.
2
The government concedes the existence of an obvious error. The
dispositive issue is whether the omission of the intent element affected Mr.
Fykes’s substantial rights by creating prejudice. Mr. Fykes cannot satisfy
this standard in light of the way that constructive possession was disputed
at trial. The parties presented dramatically opposed theories: The
government argued that Mr. Fykes owned the gun; he denied ownership.
The finding of guilt suggests that the jury credited the government’s
argument that Mr. Fykes had owned the gun. If the jury regarded Mr. Fykes
as the owner of the gun, the error in the jury instruction would have made
little difference. Other circumstances could conceivably have suggested
prejudice. But Mr. Fykes has not pointed to any other reason to consider
the error prejudicial.
Mr. Fykes also challenges the procedural and substantive
reasonableness of his sentence. At sentencing, the district court imposed a
prison term that exceeded the guideline range, explaining that the
guidelines did not fully account for Mr. Fykes’s extensive criminal history
and lack of remorse. These factors led the court to apply both a departure
and a variance. The court erred by departing because departures require
notice, which the court failed to provide. But the variance was
procedurally and substantively reasonable. Thus, we affirm the sentence.
I. Probable Cause
3
In district court, Mr. Fykes moved to suppress evidence that a gun
had been in the backpack. In the motion, he argued that the police had
lacked probable cause for the arrests, which would have precluded the
subsequent inventory search of the sedan. The district court denied the
motion to suppress, concluding that the police had probable cause for the
arrests. This conclusion was correct.
In determining whether probable cause existed, we engage in de novo
review. United States v. Huff, 782 F.3d 1221, 1225 (10th Cir. 2015).
Through this review, we consider the evidence in the light most favorable
to the prosecution and accept the trial court’s factual findings unless they
are clearly erroneous. United States v. Brinson, 772 F.3d 1314, 1324 (10th
Cir. 2014).
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV. The Fourth Amendment requires a warrant to
search one’s “effects” unless an exception applies. See Cady v.
Dombrowski, 413 U.S. 433, 439 (1973).
Vehicles are considered “effects” within the meaning of the Fourth
Amendment. Id. Thus, the police would ordinarily need a warrant to search
4
the sedan. Because the police had no warrant, the presence of the firearm
would be admissible only upon satisfaction of an exception to the warrant
requirement.
The government relies on the exception for inventory searches. Under
this exception, the police may inventory a vehicle’s contents under
appropriate circumstances. South Dakota v. Opperman, 428 U.S. 364, 369-
76 (1976). 1 One such circumstance is when the police impound a vehicle
that would otherwise be stranded when everyone in the vehicle is arrested.
See United States v. Shareef, 100 F.3d 1491, 1508 (10th Cir. 1996).
Mr. Fykes contends that the evidence should have been excluded
based on the absence of probable cause for the arrests. If either arrest was
unlawful, the police could not have impounded and inventoried the sedan,
for Mr. Fykes or Mr. Trueblood could have driven the sedan away. And in
the absence of a lawful impoundment or inventory, evidence discovered in
the inventory search would ordinarily have been inadmissible. See Wong
Sun v. United States, 371 U.S. 471, 485 (1963). But, in our view, the
police could impound the vehicle and conduct an inventory search because
probable cause existed for the arrests of Mr. Fykes and Mr. Trueblood.
Probable cause exists when “under the totality of the circumstances
. . . a reasonable person [would] believe that an offense has been or is
1
The search must follow standard law enforcement procedures.
Opperman, 428 U.S. at 372. But Mr. Fykes does not challenge the search
based on a failure to follow standard law enforcement procedures.
5
being committed by the person arrested.” United States v. Muñoz-Nava,
524 F.3d 1137, 1144 (10th Cir. 2008) (quoting United States v. Brooks, 438
F.3d 1231, 1241 (10th Cir. 2006)). In our view, the arresting officer
(Detective Lisabeth Reid) could reasonably believe that Mr. Fykes and Mr.
Trueblood had committed two Colorado crimes, human trafficking and
pimping.
Colorado law defines human trafficking and pimping:
[Human trafficking:] A person who knowingly sells, recruits,
harbors, transports, transfers, isolates, entices, provides,
receives, or obtains by any means another person for the
purpose of coercing the person to engage in commercial sexual
activity commits human trafficking for sexual servitude.
Colo. Rev. Stat. § 18-3-504(1)(a) (“Human trafficking for sexual
servitude”).
[Pimping:] Any person who knowingly lives on or is supported
or maintained in whole or in part by money or other thing of
value earned, received, procured, or realized by any other
person through prostitution commits pimping, which is a class
3 felony.
Colo. Rev. Stat. § 18-7-206 (“Pimping”).
The police received a 911 call from a man (Alfred) stating that he
was with a frightened, crying woman. According to Alfred, the woman was
a prostitute who feared her two “pimps” waiting outside in a red four-door
sedan. Alfred identified himself by name and provided the police with his
location. At the end of the call, Alfred explained that the woman had left
6
the apartment and had possibly entered the sedan. R. vol. 1, at 174-75 (911
transcript).
The information from the call was transmitted to some responding
officers, who had callscreens in their vehicles. Detective Reid did not have
a callscreen in her vehicle, but the information she received from dispatch
was “similar or identical” to the information that Alfred shared during the
call. R. vol. 6, at 117.
Before Detective Reid arrived at the scene, the other responding
officers had spoken with Mr. Fykes. In those conversations, Mr. Fykes
admitted that that he and Mr. Trueblood had come to pick up the woman.
Id. at 53, 126.
Upon arrival, Detective Reid observed the woman and tried to speak
with her. According to Detective Reid, the woman was crying and shaking
and appeared too scared to talk. Id. at 120.
Unable to speak with the woman, Detective Reid interviewed Alfred,
who stated that he had hired the woman for sexual services, finding her on
a website (backpage.com). Id. at 121-22. From experience, Detective Reid
knew that (1) prostitutes frequently advertise on backpage.com for sexual
services and (2) individuals like Alfred do not typically admit to hiring
prostitutes. This knowledge solidified Detective Reid’s belief that Alfred’s
story was truthful.
7
After speaking with Alfred, Detective Reid again tried to speak with
the woman. By this point, the woman had begun to shake more violently
and said that she was having an anxiety attack. Id. at 125. In Detective
Reid’s experience, the woman’s demeanor was consistent with someone
victimized by human trafficking.
Detective Reid then spoke to the other responding officers, who
shared what they had learned. Following that discussion, Detective Reid
decided to arrest Mr. Fykes and Mr. Trueblood.
The issue here is whether Detective Reid’s information constituted
probable cause to believe that the men were committing human trafficking
or pimping. For probable cause, the information had to be sufficient for
Detective Reid to reasonably infer that the woman was a prostitute, that
Mr. Fykes and Mr. Trueblood were pimps for the woman, and that the
woman feared Mr. Fykes and Mr. Trueblood. Therefore, we must determine
whether these inferences would have been reasonable based on the facts
known to Detective Reid.
The reasonableness of these inferences turns primarily on Alfred’s
reliability as an informant. In gauging the reliability of an informant, we
consider the “totality of the circumstances.” United States v. Artez, 389
F.3d 1106, 1111 (10th Cir. 2004) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). These circumstances include (1) the informant’s “veracity,
reliability, and basis of knowledge” and (2) other indicia of a tip’s
8
reliability, such as corroboration by an officer’s independent observations.
Id.; United States v. Hendrix, 664 F.3d 1334, 1338 (10th Cir. 2011). These
factors support Alfred’s reliability.
Veracity. Veracity is often suggested by a tipster’s
 making of an admission against penal interest,
 use of the 911 emergency system,
 making of a contemporaneous report, and
 self-identification. 2
All of these factors suggested that Alfred was honest. Alfred
acknowledged his own crime (hiring a prostitute for sexual services), used
the 911 emergency system, provided his observations contemporaneously
as the events unfolded, and identified himself. Thus, this factor supports
the reliability of Alfred’s information.
Basis of Knowledge. “[F]or basis of knowledge, a firsthand
observation is entitled to greater weight than secondhand information.”
United States v. Quezada-Enriquez, 567 F.3d 1228, 1233 (10th Cir. 2009).
Information is more likely to be firsthand when the reported details are
“highly specific or personal.” See United States v. Hendrix, 664 F.3d 1334,
1338 (10th Cir. 2011).
2
See Navarette v. California, 134 S. Ct. 1683, 1689-90 (2014)
(911 emergency system and contemporaneous reporting); United
States v. Quezada-Enriquez, 567 F.3d 1228, 1233 (10th Cir. 2009)
(against penal interest); United States v. Copening, 506 F.3d 1241,
1247 (10th Cir. 2007) (self-identification).
9
Alfred observed the events firsthand and provided specific, personal
details showing his firsthand knowledge: He described the woman’s
frightened demeanor, stated that the men were in a red four-door sedan,
and identified the website he had used to hire the prostitute. As a result,
this factor suggests that Alfred’s information was reliable.
Corroboration. Detective Reid corroborated much of the information
provided in the 911 call. For example, the woman’s frightened demeanor
matched Alfred’s description and was consistent with his statement that the
woman was a prostitute. In addition, Detective Reid knew from experience
that the website identified by Alfred—backpage.com—was used by
prostitutes selling sexual services. Finally, Detective Reid learned that the
individuals inside the red sedan were the individuals that Alfred had seen.
That sedan partially matched Alfred’s description, 3 and Mr. Fykes admitted
that he and Mr. Trueblood had come to pick up the woman.
The facts resemble those in United States v. Hendrix, 664 F.3d 1334
(10th Cir. 2011). There the police found an individual carrying drugs who
said that he had bought the drugs in a specific motel room. Hendrix, 664
3
Alfred’s description of the sedan was not perfect. The sedan was
described as a red four-door Chevy Malibu, but it was actually a red four-
door Pontiac. R. vol. 6, at 67. We consider this inconsistency as part of the
“totality of the circumstances,” but the inconsistency is minor and does not
preclude probable cause. See United States v. Traxler, 477 F.3d 1243, 1247
(10th Cir. 2007) (explaining that a “minor inconsistency in the informant’s
tip”—that the defendant’s truck was white, but the informant had reported
it as black—did not defeat a finding of probable cause in light of the other
circumstances).
10
F.3d at 1339. The police confirmed that a motel existed at the address
provided and that the specific room was occupied. Id. When the police
knocked on the motel room door and identified themselves, they heard
movement, doors opening and closing, and a toilet flushing. Id. at 1337,
1339. We concluded that this information had “provided sufficient
independent corroboration” of the informant’s tip to supply probable cause
for a search of the motel room. Id. at 1339.
Our case is similar. In both Hendrix and our case,
 the tipster made an incriminating statement and
 the arresting officers independently corroborated the substance
of the tip.
The tip was considered reliable in Hendrix, and Alfred’s tip was equally
reliable.
* * *
Mr. Fykes denies probable cause, contending that
 after receiving the 911 call, the police did not receive any
additional evidence of a crime and
 the only person who had used the word “prostitute” or “pimp”
was Alfred.
The first assertion is incorrect. Detective Reid obtained new information
when she arrived on the scene. For instance, she observed the woman’s
demeanor and learned that Alfred had hired the woman as a prostitute
based on an advertisement in backpage.com. The second assertion is not
11
dispositive. Regardless of whether Alfred was the only person using the
word “prostitute” or “pimp,” probable cause existed. Alfred’s terminology
is secondary; more relevant is what he said was happening and what
Detective Reid observed.
* * *
We conclude that Detective Reid reasonably believed that the woman
was a prostitute who feared her pimps (Mr. Fykes and Mr. Trueblood). As a
result, Detective Reid had probable cause to believe that Mr. Fykes and
Mr. Trueblood were engaged in human trafficking or pimping. 4 In light of
the existence of probable cause, we uphold the district court’s denial of
Mr. Fykes’s motion to suppress.
4
Mr. Fykes suggests that Detective Reid’s failure to specify the
charge for Mr. Fykes’s arrest precludes a finding of probable cause. We
disagree. If an officer objectively has probable cause to believe that a
crime has been committed, the officer’s intentions are irrelevant. Quinn v.
Young, 780 F.3d 998, 1006 (10th Cir. 2015).
12
II. The Jury Instruction
The jury ultimately found that Mr. Fykes had possessed a handgun.
The jury reached this finding after being instructed on constructive
possession: “A person who, although not in actual possession, knowingly
has the power at a given time to exercise dominion or control over an
object, either directly or through another person or persons, is then in
constructive possession of it.” R. vol. 1, at 418. Under this instruction, the
jury could find that Mr. Fykes had constructive possession over the
handgun if he knew about it and had the power to exercise dominion or
control. Mr. Fykes challenges this instruction. We reject the challenge
under the plain-error standard.
A. The Change in the Law
During this appeal, the law changed when our court held that
constructive possession contains an additional element: intent. It is now no
longer enough to show that Mr. Fykes knew about the handgun and could
control it. Instead, the government also needed to show that Mr. Fykes had
intended to exercise dominion or control. United States v. Little, 829 F.3d
1177, 1182 (10th Cir. 2016).
B. The Plain-Error Standard
Because Mr. Fykes did not raise this objection in district court, our
review is only for plain error. See United States v. Lin, 410 F.3d 1187,
1190 (10th Cir. 2005). The plain-error standard contains four elements:
13
1. The district court made an error.
2. The error was plain.
3. The error affected the defendant’s substantial rights.
4. The error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.
United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012) (citation
omitted).
The government concedes that the first two prongs of the plain-error
test are satisfied: the existence of an error and the plain nature of the error.
We agree with the parties that the first two prongs are satisfied. The
parties’ disagreement involves the third and fourth prongs: whether the
error (1) affected Mr. Fykes’s substantial rights and (2) seriously affected
the fairness, integrity, or public reputation of judicial proceedings.
We focus on the third prong, which requires Mr. Fykes to show that
the error affected his substantial rights. United States v. Gonzalez-Huerta,
403 F.3d 727, 733 (10th Cir. 2005) (en banc). To satisfy that burden, Mr.
Fykes “must show ‘a reasonable probability that, but for the error claimed,
the result of the proceeding would have been different.’” Id. (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). Mr. Fykes
has not satisfied that burden.
14
C. The Trial and the Parties’ Theories
The police searched the sedan’s trunk, finding a backpack that
contained a handgun. Mr. Fykes admitted that the backpack was his but
denied knowing about the handgun. He explained that he had loaned the
backpack to Mr. Trueblood, who needed to use the backpack because he
was moving. According to Mr. Fykes, the handgun was presumably Mr.
Trueblood’s. Mr. Fykes insisted that he did not know about the handgun
because he had not looked inside the backpack after loaning it to Mr.
Trueblood.
The government disputed this account, arguing that the handgun was
Mr. Fykes’s. To support this theory, the government pointed to other items
inside the backpack that suggested Mr. Fykes’s ownership of the
backpack’s contents:
 Mr. Fykes’s passport,
 a laptop computer that contained Mr. Fykes’s medical
document,
 cell phone chargers that fit Mr. Fykes’s cell phones, and
 a container of cigarillos like those found close to Mr. Fykes’s
seat.
In response, Mr. Fykes claimed that he had forgotten that his
passport was inside his backpack, that he had previously used the laptop
computer to check his email and download the document, that the cell
phone chargers were generic and fit many cell phones (including Mr.
15
Trueblood’s), and that he smoked cigarettes rather than cigarillos. Mr.
Fykes added that no fingerprints had been found on the gun and that a
fingerprint on the laptop was not his. 5
In turn, the government replied that Mr. Fykes would not likely have
forgotten about his passport or left his medical document on another
person’s computer. 6 The government also pointed out that Mr. Trueblood
already had his cell phone chargers. Finally, the government’s expert
testified that it was uncommon for fingerprints to be found on handguns.
D. Absence of Prejudice
The jury found that Mr. Fykes had possessed the handgun. The jury
was not instructed on intent, but necessarily rejected Mr. Fykes’s “lack of
knowledge” theory. Faced with the parties’ dual theories, the jury likely
adopted the government’s theory that the handgun was Mr. Fykes’s.
Mr. Fykes argues that the jury might have harbored doubt about
intent. For instance, the jury might have believed that Mr. Fykes had
known about the gun even though it was not his. He contends that under
5
In addition, Mr. Fykes pointed out that although Mr. Trueblood had
told the police he did not own any guns, Mr. Trueblood had purchased an
unrelated firearm in May 2014. As a police officer testified, however, Mr.
Trueblood could have sold the firearm before being confronted by police in
February 2015.
6
The document contained psychological and financial information that
Mr. Fykes testified he had not told anyone about. In addition, Mr. Fykes
admitted that when he had allegedly downloaded the document onto the
computer, he had known Mr. Trueblood for only about one to three months.
16
this scenario, the jury would have found guilt under the erroneous jury
instruction but found Mr. Fykes not guilty under a proper instruction. We
reject this contention. In light of the parties’ theories and the evidence
presented, the jury more likely regarded Mr. Fykes as the owner of the
handgun.
The jury did not reject Mr. Fykes’s “lack of knowledge” theory in a
vacuum. The government had linked Mr. Fykes to the contents of the
backpack through the passport, laptop, cigarillos, and cell-phone chargers.
The government did not suggest any reason to find Mr. Fykes guilty if the
gun had belonged to Mr. Trueblood. Therefore, in finding guilt, the jury
probably believed that Mr. Fykes had owned the handgun and was using his
backpack. That belief would likely have caused the jury to find an intent to
exercise dominion or control of the handgun. In these circumstances, we
conclude that Mr. Fykes has not satisfied his burden to show prejudice.
This conclusion is consistent with our case law. Typically,
defendants can satisfy their burden on prejudice by presenting a
compelling reason to believe that the jury might have been misled. For
example, we have found prejudice when an erroneous instruction allowed
the jury to improperly circumvent the defendant’s trial theory, when the
prosecutor invited the jury to rely on the instruction’s error, or when there
was other evidence of jury confusion. See, e.g., United States v. Simpson,
No 15-1295, slip op. at 43-46 (10th Cir. Jan. 10, 2017) (to be published)
17
(finding a likelihood of prejudice when the prosecutor invited the jury to
consider the evidence in a way that likely caused the jury to rely on the
error in the jury instructions); United States v. Bader, 678 F.3d 858, 869
(10th Cir. 2012) (same); United States v. Serawop, 410 F.3d 656, 670 (10th
Cir. 2005) (finding a likelihood of prejudice when the jury instruction
omitted the mens rea element of voluntary manslaughter and the
defendant’s trial theory centered on that element); United States v. Duran,
133 F.3d 1324, 1333 (10th Cir. 1998) (finding a likelihood of prejudice
when a jury question suggested confusion over the substance of the
instruction’s error).
By contrast, our case law indicates that it is not enough for a
defendant to make a conclusory, speculative statement that the jury was
misled by an erroneous jury instruction. For example, we have declined to
find prejudice when the defendant simply explains how the instruction’s
erroneous language could theoretically have misled the jury, but fails to
provide any supporting reason for how the jury in that particular case
might have been misled. See United States v. Zapata, 546 F.3d 1179, 1191
(10th Cir. 2008) (“This unsupported statement, [explaining that the
language of the erroneous jury instruction could have misled the jury,]
without more, is not enough to show that jurors did, in fact, consider
evidence [improperly] in determining the[] [defendant’s] guilt.”).
18
Mr. Fykes has not provided any specific reason to believe that the
jury might have been misled by the erroneous jury instruction. And, as
explained above, his trial theory suggests that the instruction had little
impact on the outcome. At trial, Mr. Fykes argued that he had not known
that the handgun was inside his backpack. The government countered that
the handgun was owned by Mr. Fykes, who was using his backpack at the
time. In light of the guilty verdict, the jury likely adopted the
government’s version of events. See United States v. Williams, 344 F.3d
365, 378-79 (3d Cir. 2003) (holding that an alleged error in jury
instructions on constructive possession did not affect the defendant’s
substantial rights because the jury had apparently credited the
government’s version of events, which would have required conviction
even if the jury had been correctly instructed).
If the jury had adopted the government’s version, a different
instruction on intent would probably not have mattered: If Mr. Fykes
owned the gun, he probably intended to exercise dominion or control over
the gun. Accordingly, we reject Mr. Fykes’s challenge to the erroneous
jury instruction.
III. The 60-Month Sentence
After the jury found guilt, the district court sentenced Mr. Fykes
above the applicable guideline range. In doing so, the court pointed to Mr.
19
Fykes’s criminal history and lack of remorse. Mr. Fykes argues that his
sentence is procedurally and substantively unreasonable. We disagree.
A. The Sentencing
The district court sentenced Mr. Fykes to 60 months’ imprisonment.
In deciding on this sentence, the court calculated the guideline range and
explained the reasons for deviating from that range.
The court calculated the guideline range at 41 to 51 months. For this
calculation, the court noted that Mr. Fykes’s base level was 20. The court
then found that Mr. Fykes’s criminal history category was 3, as he had 4
criminal-history points. Three of the criminal-history points were based on
his 1992 crack-cocaine conviction; the remaining criminal-history point
was based on a conviction for driving while intoxicated.
After calculating the guideline range, the district court concluded
that the guidelines understated Mr. Fykes’s criminal history. R. vol. 6, at
821 (“The overall picture is much different, in my view, than a level III.”);
see also id. at 818 (“What bothers me about this case, mostly, is that I
think the criminal-history level of III[] . . . substantially understates his
criminal history.”). The court noted that Mr. Fykes had numerous
convictions not triggering criminal-history points. Id. at 818-820. In
addition, the court considered Mr. Fykes’s lack of remorse, as evidenced
by his continuous crimes and failure to appear in court after multiple DUI
charges. Id. at 816 (“It doesn’t appear to me that this youngster has learned
20
his lesson, as he gets into middle age.”); id. at 821 (“And it bothers me
that he just blows these things off and doesn’t care, he just disappears and
goes to another state and does some more driving and drinking, and I am
taking that into consideration.”).
These considerations led the district court to impose a sentence nine
months above the top of the guideline range. The court characterized the
sentence as both a departure and a variance. When the probation officer
asked the court whether the sentence was a departure or a variance, the
court replied that the sentence was both: “I’ll say that I chose both. That
way, if I’m wrong on one, I’ll be right on the other.” Id. at 823-24.
B. Procedural Reasonableness
We review a sentence for reasonableness, asking whether the court
abused its discretion. United States v. Lente, 759 F.3d 1149, 1155 (10th
Cir. 2014). Reasonableness has procedural and substantive components. Id.
Mr. Fykes first invokes the procedural component, essentially arguing that
the district court did not “us[e] the proper method to calculate the
sentence.” Id. We reject this argument.
1. Combination of a Departure and Variance
Mr. Fykes contends that the district court procedurally erred by
departing from the applicable sentencing range without providing the
necessary notice. But Mr. Fykes did not object in district court to the
21
departure. Thus, our review here is confined to the plain-error standard.
See pp. 13-14, above.
A departure ordinarily requires notice. See Fed. R. Crim. P. 32(h)
(“Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or in a
party’s prehearing submission, the court must give the parties reasonable
notice that it is contemplating such a departure.”). And the court did not
provide notice. Thus, we can assume, for the sake of argument, that the
failure to provide notice constituted an obvious error.
Nonetheless, the challenge would fail at the third prong of the plain-
error standard because the error was not prejudicial. The deviation
constituted not only a departure, but also a variance. And a variance does
not require advance notice. Irizarry v. United States, 553 U.S. 708, 716
(2008).
Mr. Fykes contends that his sentence involved only a departure, not a
variance. For this contention, Mr. Fykes states that the oral pronouncement
was ambiguous, requiring us to consider the written judgment. According
to Mr. Fykes, the written judgment supports characterization of the
sentence solely as a departure. We reject Mr. Fykes’s characterization of
the sentence.
A district court may issue both a variance and a departure; the court
does not need to choose one over the other, and the court does not
22
necessarily need to discuss each one separately. See United States v.
Martinez-Barragan, 545 F.3d 894, 901 (10th Cir. 2008) (“Departures and
variances are analytically distinct[] . . . . But a sentencing judge does not
commit reversible error by consolidating the two discussions.”); see also
United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1220 (10th Cir.
2008) (“[W]e first determine whether the district court departed upward,
varied upward, or both departed and varied upward . . . .” (emphasis
added)).
The court unambiguously stated that it was both departing and
varying; thus, we need not consult the written judgment. United States v.
Villano, 816 F.2d 1448, 1450-51 (10th Cir. 1987) (en banc). Because the
sentence involved both a departure and a variance, the failure to provide
advance notice was not prejudicial under the third prong of the plain-error
standard.
2. Adequacy of the Explanation for the Variance
Mr. Fykes also argues that a variance would be procedurally
unreasonable because the district court failed to properly discuss the
sentencing factors stated in 18 U.S.C. § 3553(a). He did not raise this
challenge in district court; thus, we review this challenge under the plain-
error standard. See pp. 13-14, above. Because the court properly discussed
the § 3553(a) factors, we reject Mr. Fykes’s challenge.
23
District courts have discretion to impose non-guideline sentences.
Pepper v. United States, 562 U.S. 476, 501 (2011). But a district court
must show that it “considered the parties’ arguments and has a reasoned
basis for exercising [the district court’s] own legal decisionmaking
authority.” United States v. Lente, 759 F.3d 1149, 1156 (10th Cir. 2014)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)). In showing the
reasonableness of this basis, the court must explain its sentencing decision
based on the facts and the § 3553(a) sentencing factors. 7 18 U.S.C.
§ 3553(c)(2); United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir.
2008). The court must consider each factor. Mendoza, 543 F.3d at 1191.
But explicit discussion of every factor is unnecessary. United States v.
Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012). And no magic words are
necessary for a proper discussion. United States v. Pinson, 542 F.3d 822,
833 (10th Cir. 2008).
The district court properly exercised its discretion to vary from the
guidelines. The court pointed to Mr. Fykes’s criminal history and lack of
7
We have summarized the § 3553(a) factors:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the
sentence imposed; (3) the kinds of sentences available; (4) the
recommended Guidelines range; (5) the policies underlying the
Guidelines; (6) the need to avoid unwarranted sentencing
disparities; and, (7) the need for restitution to any victims.
United States v. Sanchez-Leon, 764 F.3d 1248, 1262 n.9 (10th Cir. 2014).
24
remorse. See 18 U.S.C. § 3553(a)(1) (“the history and characteristics of the
defendant”); id. § 3553(a)(2) (“the need for the sentence imposed”).
At oral argument, Mr. Fykes acknowledged that these are appropriate
justifications for an upward variance. But he argued that the court
mentioned those justifications only to support a departure, not a variance.
In his view, “[t]he court gave no ‘specific reasons’ why it was imposing [a
variance] and instead gave only one hypothetical reason why it might do
so.” Appellant’s Opening Br. at 26 (quoting 18 U.S.C. § 3553(c)(2)).
We disagree. The court noted Mr. Fykes’s criminal history and lack
of remorse and then observed that a variance would be appropriate if the
criminal-history level had been understated by the guidelines. These
comments suggest that the court was explaining its decision to vary upward
as well as to depart upward. Thus, we conclude that the sentence was
procedurally reasonable.
C. Substantive Reasonableness
Finally, Mr. Fykes challenges the substantive reasonableness of his
sentence. We reject this challenge.
“Substantive reasonableness involves whether the length of the
sentence is reasonable given all the circumstances of the case in light of
the factors set forth in 18 U.S.C. § 3553(a).” United States v. Lente, 759
F.3d 1149, 1155 (10th Cir. 2014) (quoting United States v. Conlan, 500
F.3d 1167, 1169 (10th Cir. 2007)). We review the substantive
25
reasonableness of a sentence for an abuse of discretion. Id. at 1158. “Under
this standard, we will ‘deem a sentence unreasonable only if it is arbitrary,
capricious, whimsical, or manifestly unreasonable.’” Id. (quoting United
States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)).
According to Mr. Fykes, the district court should have “equitably
reduced” the sentence in light of a change in the law affecting treatment of
his 1992 crack-cocaine conviction. 8 Appellant’s Opening Br. at 36. Mr.
Fykes argues that if his 1992 conviction had taken place under current law,
the guideline range and resulting sentence for that conviction would have
been shorter, rendering the conviction too old to trigger any criminal
history points for use in the present case. 9 We reject this assertion because
the district court
8
The government argues that this challenge involves procedural
reasonableness but not substantive reasonableness. We disagree.
Mr. Fykes’s brief does contain some stray statements that implicate
procedural reasonableness. For example, in his summary of argument and
one of his argument headings, Mr. Fykes states that the court improperly
calculated his guideline range; this challenge would be procedural rather
than substantive. United States v. Hamilton, 587 F.3d 1199, 1219 (10th
Cir. 2009). But Mr. Fykes does not support this assertion with any
argument. Any such procedural argument is therefore waived. United
States v. Hamilton, 510 F.3d 1209, 1218 n.5 (10th Cir. 2007).
9
In district court, Mr. Fykes did not object to the substantive
reasonableness of his sentence. Defendants need not object to preserve a
claim that a sentence is unreasonably long. United States v. Vasquez-
Alcarez, 647 F.3d 973, 976 (10th Cir. 2011). But we have suggested that a
defendant may forfeit the specific argument being made here: that the
26
 provided a reasonable explanation for declining to shorten the
sentence based upon the 1992 conviction and
 otherwise justified the extent of the variance.
On the first point, the staleness of a prior conviction may affect the
reasonableness of a sentence. See United States v. Chavez-Suarez, 597 F.3d
1137, 1138 (10th Cir. 2010). Here, however, the district court explained
why it did not treat the 1992 conviction as stale. The court noted that even
if the guideline range for that offense had been lower, there was no way to
know whether the trial court in 1992 would have issued a sentence within
the guideline range. This explanation was not arbitrary, capricious,
whimsical, or manifestly unreasonable.
On the second point, we consider the district court’s justification for
the variance. See United States v. Singer, 825 F.3d 1151, 1159 (10th Cir.
2016) (“When a district court decides to impose a sentence above the
advisory Guidelines range, it ‘must consider the extent of the deviation
[from the Guidelines] and ensure that the justification is sufficiently
compelling to support the degree of variance.’” (alteration in original)
(citation omitted)). In doing so, we give “due deference” to the district
“sentence’s accounting for [an] old conviction is substantively
unreasonable.” Id. at 976-77.
We face the same potential issue here, but “we need not decide
whether there was forfeiture because [Mr. Fykes’s] sentence can be
affirmed under either plain error or abuse of discretion review.” Id. at 977.
27
court’s explanation. United States v. Alapizco-Valenzuela, 546 F.3d 1208,
1216 (10th Cir. 2008) (quoting United States v. Muñoz-Nava, 524 F.3d
1137, 1146 (10th Cir. 2008)).
The district court explained the variance, expressing dissatisfaction
with the criminal-history category and explaining that if the category had
been 1 level higher (4 rather than 3), the guideline range would have been
51 to 63 months. The court used that hypothetical range to arrive at a
sentence of 60 months. This approach was permissible. See United States v.
Lente, 759 F.3d 1149, 1167 (10th Cir. 2014). Thus, we conclude that the
sentence was substantively reasonable.
IV. Disposition
For these reasons, we affirm the conviction and sentence.
Entered for the Court
Robert E. Bacharach
Circuit Judge
28