United States v. Denny

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0210p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 09-6029
v.
,
>
-
Defendant-Appellant. -
DAVID WILLIAM DENNY,
-
N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 07-00264-001—William J. Haynes, Jr., District Judge.
Argued: March 3, 2011
Decided and Filed: August 10, 2011
Before: BATCHELDER, Chief Judge; COLE and GIBBONS, Circuit Judges.

_________________

COUNSEL
ARGUED: James Ryan Harvey, FEDERAL PUBLIC DEFENDER’S OFFICE,
Nashville, Tennessee, for Appellant. Hilliard H. Hester, III, ASSISTANT UNITED
STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Ronald C.
Small, Anne-Marie Moyes, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. Hilliard H. Hester, III, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
_________________

OPINION
_________________

JULIA SMITH GIBBONS, Circuit Judge. David Denny pled guilty to one count
of uttering a counterfeited security, in violation of 18 U.S.C. § 513(a). He now appeals
his sentence of sixty months’ imprisonment on both procedural and substantive grounds.
For the reasons explained below, we affirm his sentence.

1
No. 09-6029 United States v. Denny Page 2

I.

In late April 2005, Daniel Pate, a Tennessee resident, placed an advertisement
in a local newspaper offering his Chevrolet Corvette for sale. Denny, using the fictitious
name Tom Williams, contacted Pate and arranged a meeting in order to inspect the car.
The two met on April 29, 2005, and after some time, Pate agreed to sell the car to Denny
for $12,000. Denny produced a cashier’s check for that amount and gave it to Pate as
payment. When Pate sought to deposit the cashier’s check, he discovered it was
fraudulent. He then reported the theft of his vehicle to the local police. Law
enforcement eventually identified Denny as being involved in this incident and a string
of similar thefts in January 2007. Denny admitted to participating in an automobile theft
ring and in the fraudulent buying and selling of twenty-five vehicles in five states.

After being indicted on three counts of uttering a counterfeited security in
violation of 18 U.S.C. § 513(a), Denny agreed to plead guilty to one count of uttering
a counterfeited security—that involved with the theft of the Corvette—in August 2008.
As part of his plea, Denny also admitted to uttering two other counterfeit checks, one for
$17,000 and the other for $10,500, in order to steal two cars. The presentence report
(“PSR”) assessed a total offense level of 13 and a criminal history category VI. The
district court, however, eventually found that Denny’s criminal history was overstated
and reduced the criminal history to a category V; it also reassessed the total offense level
and found it to be 12. With these adjustments, the sentencing guidelines recommended
a sentence of 27 to 33 months’ imprisonment.

At a sentencing hearing in August 2009, however, the district court ultimately
imposed a sentence of 60 months’ imprisonment. The court explained that it felt the
Guidelines did not reflect the seriousness of the crime in this case. The court explained:

The defendant took basically three people’s cars. Cars . . . represent a
great investment to people, as evidenced by the statement of Mr. Pate.
And the circumstances of this offense are such that it was particularly
damaging to the victims. And I don’t think that, given the amounts
involved and the way in which the subsequent sales were taking place,
in which this defendant was a central figure, that the guideline sentence
represents a reasonable sentence.
No. 09-6029 United States v. Denny Page 3

After the court notified Denny of the 60-month sentence, defense counsel objected on
the grounds that the sentence constituted an upward departure for which the court had
given counsel no notice. The district court responded, “As I understand case law, you
no longer have to give advance notice of upward departure, because the guidelines are
advisory.” The government’s attorney then interjected to propose that “this is a variance
within the discretion [of] the Court under section 3553 as opposed to a departure”; the
district court agreed, explaining its decision was “not a departure under the guidelines.”

After the sentencing hearing, the district court filed a sealed, standard-form
Statement of Reasons. In the Statement of Reasons, the district court reiterated that it
“impose[d] the sentence above the guideline range because of the nature of the
defendant’s crime against the victims and the seriousness of that offense is not properly
reflected in the guideline calculation. . . . The criminal activity and evidence here
indicates the defendant’s actions were particularly damaging to the victims.” In filling
out the section entitled “Departure,” however, the report checked the box next to the
statement “[t]he sentence departs above the guideline range for the following reasons.”
In the subsection entitled “Reason(s) for Departure,” two boxes were checked: one
beside “5K2.0 Aggravating or Mitigating Circumstances,” and a second next to “5K2.5
Property Damage or Loss.”

This appeal followed. Because Denny was charged with federal crimes, the
district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court’s review of a
sentence is authorized under 18 U.S.C. § 3742. Additionally, we possess jurisdiction
over the district court’s final order pursuant to 28 U.S.C. § 1291.

II.

The first issue on appeal is whether the district court’s imposition of a sentence
higher than that recommended by the Sentencing Guidelines constituted a “departure”
or a “variance.” Because this is a question of law, we consider the issue de novo.
No. 09-6029 United States v. Denny Page 4

Under Rule 32(h) of the Federal Rules of Criminal Procedure, a district court
must notify the defendant of an intention to depart from the Guidelines.1 However, in
Irizarry v. United States, the Supreme Court held that Rule 32(h)’s notice provision does
not apply when the district court chooses to apply a “variance” from the Guidelines
range based on the sentencing factors of 18 U.S.C. § 3553(a). 553 U.S. 708, 714–16
(2008). This court has explained the difference between a departure and variance:

“Departure” is a term of art under the Guidelines and is distinct from
“variance.” A Guidelines “departure” refers to the imposition of a
sentence outside the advisory range or an assignment of a criminal
history category different than the otherwise applicable category made
to effect a sentence outside the range. Importantly, a departure results
from the district court’s application of a particular Guidelines provision,
such as § 4A1.3 or § 5, Part K. A “variance” refers to the selection of a
sentence outside of the advisory Guidelines range based upon the district
court’s weighing of one or more of the sentencing factors of § 3553(a).
While the same facts and analyses can, at times, be used to justify both
a Guidelines departure and a variance, the concepts are distinct.

United States v. Grams, 566 F.3d 683, 686–87 (6th Cir. 2009) (per curiam) (citations
omitted). Given the similarities between the two procedures, however, it behooves a
district court to indicate clearly whether it is “departing” or “varying” when it elects to
deviate from the sentencing guidelines. See United States v. Stewart, 628 F.3d 246, 259
(6th Cir. 2010) (noting a district court’s “failure to distinguish between a departure and
a variance might in some circumstances affect the sentence’s procedural
reasonableness”).

This case presents two separate issues: (1) whether the district court expressed
an intention to apply a variance during oral sentencing, and (2) what significance the
Statement of Reasons plays in our review of this question. We address these two issues
in turn.

1
Rule 32(h) provides that “[b]efore 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. The
notice must specify any ground on which the court is contemplating a departure.” Fed. R. Crim. P. 32(h).
No. 09-6029 United States v. Denny Page 5

A.

Our examination begins with the proceedings during oral sentencing. See United
States v. Penson, 526 F.3d 331, 334 (6th Cir. 2008) (noting the “primacy of the oral
sentence” when addressing discrepancies in the sentencing record). In support of his
argument that the district court departed from the Guidelines, Denny emphasizes that the
district court repeatedly used the word “departure” during oral sentencing and never used
the word “variance.” This court, however, has noted that “no specific magic words are
necessary to render a sentence reasonable.” United States v. Davis, 458 F.3d 505, 507
(6th Cir. 2006). The court’s omission of the word “variance” is therefore not conclusive
evidence in favor of Denny.

Moreover, the district court clarified its use of the word “departure” while still
at the sentencing hearing; it noted that its decision was “not a departure under the
guidelines.” This reference to a departure outside the Guidelines apparently makes use
of older terminology used to describe a variance; though variance is perhaps the more
common term today, deviations based on § 3553(a) factors have frequently been termed
“non-Guideline departures.” See, e.g., United States v. Bridgewater, 606 F.3d 258, 261
n.1 (6th Cir. 2010) (using “non-Guideline departure” and “variance” interchangeably);
United States v. Curry, 606 F.3d 323, 328 (6th Cir. 2010) (same); United States v.
Blackie, 548 F.3d 395, 403 (6th Cir. 2008) (“We often refer to Non-Guideline departures
as ‘variances.’”). The court’s clarification that the sentence was “not a departure under
the guidelines,” confirms that district court was acting pursuant to its discretion under
§ 3553(a).

The variance–departure question ultimately turns on whether the court’s
deviation from the sentencing guidelines was done pursuant to the factors enumerated
in § 3553(a). Section 3553(a) provides that a court shall impose a sentence “sufficient,
but not greater than necessary,” to comport with the goals of criminal justice, and, to that
end, the section enumerates factors for the court to consider during sentencing. These
factors include “the seriousness of the offense,” the provision of “just punishment for the
offense,” the protection of the public, and the need to provide adequate restitution to the
No. 09-6029 United States v. Denny Page 6

victims. 18 U.S.C. §§ 3553(a)(2)(A), 3553(a)(2)(C), 3553(a)(7). This court has noted
that these sentencing factors provide the district court with a “much broader range of
discretionary decisionmaking” than the discretion provided by the Sentencing
Guidelines. United States v. Stephens, 549 F.3d 459, 466–67 (6th Cir. 2008).

In this case, the district court’s central reason for deviating from the Sentencing
Guideline was that it considered “the seriousness of that offense [to be] not properly
reflected in the guideline calculation.” The seriousness of the offense is explicitly a
§ 3553(a) factor to be considered. Moreover, the court’s emphasis on the particularly
vulnerable victims in this case—many of whom were retiring and were forced to dip into
savings as a result of Denny’s fraud—falls within § 3553(a)’s “just punishment” factor.
In United States v. Stewart, this court determined that a district court’s decision to vary
a sentence because the crime “had such a severe impact on . . . [the] victims” was proper
under § 3553(a) factors. 628 F.3d 246, 261 (6th Cir. 2010).

Based on the district court’s clarifying language during oral arguments and its
clear reference to § 3553(a) factors, the proceedings establish that the court’s deviation
constituted a variance, not a departure.

B.

Denny also argues that this court should use the Statement of Reasons to clarify
any residual ambiguity resulting from the oral proceeding. The Statement of Reasons,
according to Denny, clearly demonstrates that the district court imposed an upward
departure, as the report “made no mention of a variance, clearly characterized its
sentence as an upward departure, and even cited to specific departure provisions under
the Guidelines.”

We have previously outlined the relationship between oral and written
pronouncements of sentences. “‘[W]hen an oral sentence conflicts with the written
sentence, the oral sentence controls.’” United States v. Penson, 526 F.3d 331, 334 (6th
Cir. 2008) (quoting United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir.1988)); see
also United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). “The reason for the
No. 09-6029 United States v. Denny Page 7

primacy of the oral sentence lies in the fact that a defendant is present only when being
sentenced from the bench. Because criminal punishment affects the most fundamental
human rights sentencing should be conducted with the judge and defendant facing one
another and not in secret.” Penson, 526 F.3d at 334 (internal quotation marks, citations,
and alterations omitted). Similarly, written documents cannot be used to create
ambiguity in the sentence if the oral sentence is clear. See id.

At the same time, this court has accepted that certain written documents can be
used to resolve an ambiguity in the oral sentence. In United States v. Penson, for
instance, this court held that “[w]hen an orally pronounced sentence is ambiguous . . .
the judgment and commitment order is evidence which may be used to determine the
intended sentence.” Id.; see also United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir.
1988) (“Where there is ambiguity [in the oral sentence], however, courts have usually
been able to divine the intent of the sentencing judge.” (internal quotation marks
omitted)). Yet the court has also recognized that often written judgments and
commitment orders will have limited probative value if they are cursory accounts. In
United States v. Blackie, for instance, this court found that a written “order [that] simply
checked two boxes to indicate its reasons for sentencing outside the guideline system
and left blank the section of the order for facts justifying the sentence” lacked “the
requisite level of specificity” necessary to resolve ambiguities in the oral transcript. 548
F.3d 395, 401 (6th Cir. 2008).

The particular document to which Denny cites—the sealed Statement of
Reasons—must be viewed with some caution. This reporting procedure is required
under 28 U.S.C. § 994(w)(1)(b), which provides that

[t]he Chief Judge of each district court shall ensure that, within 30 days
following entry of judgment in every criminal case, the sentencing court
submits to the [Sentencing] Commission, in a format approved and
required by the Commission, a written report of the sentence, the offense
for which it is imposed, the age, race, sex of the offender, and
information regarding factors made relevant by the guidelines. The
report shall also include . . . the written statement of reasons for the
sentence imposed (which shall include the reason for any departure from
the otherwise applicable guideline range and which shall be stated on the
No. 09-6029 United States v. Denny Page 8

written statement of reasons form issued by the Judicial Conference and
approved by the United States Sentencing Commission).

28 U.S.C. § 994(w)(1) (2006).2 Under § 994(w)(1), therefore, a district court is required
to submit to the United States Sentencing Commission a written statement of reasons for
every criminal sentence that it imposes.3 This section, however, was not intended as a
procedural safeguard for any particular defendant; rather, “[t]he ostensible purpose of
§ 994(w) is to make the courts report information about sentences and departures to
ensure a measure of consistency in sentencing throughout the country.” United States
v. Ray, 273 F. Supp. 2d 1160, 1164 (D. Mont. 2003); cf. Mistretta v. United States, 488
U.S. 361, 369 (1989) (suggesting § 994(w) is designed to allow the Sentencing
Commission to “submit to Congress at least annually an analysis of the operation of the
guidelines”).

Because it was merely intended to serve a record-keeping function, courts’
written statement of reasons have not always been crafted with the same precision that
judges heed during the oral sentence.4 While we have nonetheless allowed parties to
look to the written statement of reasons, see, e.g., United States v. Batista, No. 10-3021,

2
Section 994(w)(1) has been amended over the years. Initially, § 994(w) permitted the reporting
to be fulfilled by either an “appropriate judge or officer.” 28 U.S.C. § 994(w) (1984), amended by 117
Stat. 650, 672 (2003). In 2003, Congress amended the section to provide that “[t]he Chief Judge of each
district” was responsible for ensuring that each “sentencing court” submit the required report. The
Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (“PROTECT Act”),
P.L. 108-21, 117 Stat. 650, 672 (2003). The section was again amended in 2006, specifying that the
statement of reasons should be “written” and “stated on the written statement of reasons form issued by
the Judicial Conference and approved by the United States Sentencing Commission.” P.L. 109-177,
§ 735(1)(B) (2006).
3
In order to safeguard confidential information, the statement of reasons form is not available for
public disclosure, but it is made available to defense counsel, government attorneys, and various
government agencies and offices. United States v. Batista, No. 10-3021, 2011 WL 239867, at *6 (6th Cir.
Jan. 27, 2011) (unpublished); United States v. Espinoza, 514 F.3d 209, 213 n.5 (2d Cir. 2008).
4
It should be noted that the evolution of § 994(w) evinces a congressional intent to make the
written statement of reasons a more formal document than it has been previously. Since 2003, for instance,
the plain language of § 994(w) does not provide that a judicial officer other than the sentencing judge may
prepare the statement of reasons. Similarly, a 2010 amendment to 18 U.S.C. § 3553 provides that the
reasons given for a sentence during the court’s statement in open court “must also be stated with specificity
in a statement of reasons form issued under section 994(w)(1)(B) of title 28, except to the extent that the
court relies upon statements received in camera.” 18 U.S.C. § 3553(c)(2) (2010). We do not consider the
impact, if any, of the amendment to § 3553(c)(1), since it was passed after Denny’s sentencing. However,
given Congress’s integration of § 994(w) into other parts of the sentencing protocol, district courts would
do well to pay greater care to future statements of reason.
No. 09-6029 United States v. Denny Page 9

2011 WL 239867, at *6 (6th Cir. Jan. 27, 2011) (unpublished), our unwillingness to
allow certain written statements to obfuscate unambiguous reasoning given by a district
court at the oral hearing is related to the fact that the written statement of reasons has a
clerical, and not substantive, origin. Moreover, as we noted in Blackie, a cursory
statement of reasons will not be sufficient to be of significant probative value. 548 F.3d
at 401.

In this case, the district court checked two boxes on the prepared Statement of
Reasons, both in the section entitled “Departure.”5 On the version of the form filled out
by the district court, however, there is no corresponding section entitled “Variance” that
the court could have checked, and nowhere on the standard form does it mention
variance or § 3553.6 It appears, therefore, that the “Departure” box was checked
because it represented the best approximation of the court’s substantive reasons for the
sentence. And, aside from these two checked boxes, the written statement of reasons
makes no other suggestion that the sentence constituted a departure under the guidelines.
In the section permitting additional comments, the district court reiterated that it
“impose[d] the sentence above the guideline range because of the nature of the
defendant’s crime” and that “the seriousness of that offense is not properly reflected in
the guideline calculation.” As noted above, the seriousness of the offense is explicitly
a factor to be considered under § 3553(a).

Even if we concluded the record from the oral sentencing was ambiguous,
therefore, we conclude that the written Statement of Reasons does not give rise to the
inference that the district court departed under the Guidelines. The record makes clear
that the court intended to vary from the Guidelines range.

5
Section 994(w) requires that the statement of reasons be submitted “in a format approved and
required by the Commission.” 28 U.S.C. § 994(w)(1).
6
The form used by the district court in this case was outdated at the time of its use in 2009. The
current version of the Statement of Reasons form, revised in September 2008, now includes a section for
variances imposed pursuant to 18 U.S.C. § 3553(a). The revised version of the form can be found at
http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO245B.pdf.
No. 09-6029 United States v. Denny Page 10

III.

Alternatively, Denny argues that the 60-month sentence imposed by the district
court was procedurally and substantively unreasonable. This court reviews sentences
for both procedural and substantive reasonableness under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007).

A.

Procedural unreasonableness may occur when a sentencing court “fail[s] to
calculate (or improperly calculat[es]) the Guidelines range, treat[s] the Guidelines as
mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence
based on clearly erroneous facts, or fail[s] to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51.

Denny puts forward two claims with regard to procedural unreasonableness. The
first is that the district court “failed to adequately explain its sentencing decision.” The
Supreme Court has held that a “sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has reasoned a basis
for exercising his own legal decision-making authority.” Rita v. United States, 551 U.S.
338, 356 (2007). However, this court has emphasized that a district court “need not
recite” the § 3553 factors when it imposes a sentence. United States v. Hernandez-
Fierros, 453 F.3d 309, 312 (6th Cir. 2006) (internal quotation marks omitted). “[T]he
crucial question is whether the record makes clear that the sentencing judge listened to
each argument, considered the supporting evidence, was fully aware of the defendant's
circumstances and took them into account in sentencing him.” United States v. Wallace,
597 F.3d 794, 804 (6th Cir. 2010) (internal quotation marks omitted).

The record clearly indicates that the sentencing judge took Denny’s claims under
consideration. Indeed, the court found some of his arguments persuasive and adjusted
both the offense level and Denny’s criminal history according to objections made by
Denny to the presentence report. Similarly, the court articulated at both the sentencing
No. 09-6029 United States v. Denny Page 11

hearing and in its statement of reasons the factors that warranted a variance. The record
therefore amply indicates the court’s decisionmaking process, and Denny’s claim that
the court failed to adequately explain itself is incorrect.

Denny also argues that the court applied the incorrect standard in calculating his
sentence. He claims that the district court committed error by “justif[ying] its sentence
as ‘reasonable’ rather than ‘sufficient, but not greater than necessary.’” Denny claims
the court’s statement that the “guideline sentence [does not] represent[] a reasonable
sentence” evidences the application of the incorrect standard—specifically, the appellate
standard of review.

In support of his second procedural claim, Denny cites to this court’s opinion in
United States v. Wilms, which explained that

[a] district court’s job is not to impose a “reasonable” sentence. Rather,
a district court’s mandate is to impose “a sentence sufficient, but not
greater than necessary, to comply with the purposes” of section
3553(a)(2). Reasonableness is the appellate standard of review in judging
whether a district court has accomplished its task.

495 F.3d 277, 281 (6th Cir. 2007) (quoting United States v. Foreman, 436 F.3d 638, 644
n.1 (6th Cir. 2006)). But Denny omits the following sentence in Wilms, namely that “the
mere fact that the district court utters the word ‘reasonableness’ or recognizes that we
apply a presumption of reasonableness on appeal does not render its sentencing
determination procedurally unreasonable.” Id. Denny essentially asks this court to find
exactly the opposite and hold that the sentencing judge’s single reference to
reasonableness renders the entire decision invalid. We do not accept this argument. The
district court made it clear that its adjustment of Denny’s sentence was done pursuant
to the factors and standard set forth in § 3553(a), and this court does not require “ritual
incantation” of § 3553 to affirm a sentence. United States v. Simmons, 587 F.3d 348,
398 n.14 (6th Cir. 2009). Therefore, we reject Denny’s claims that the sentencing was
procedurally unreasonable.
No. 09-6029 United States v. Denny Page 12

B.

“The essence of a substantive-reasonableness claim is whether the length of the
sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C.
§ 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010).
A sentence is substantively unreasonable “if the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
§ 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.”
Id. at 633 (internal quotation marks omitted). The court must “take into account the
totality of the circumstances, including the extent of any variance from the Guidelines
range.” Gall, 552 U.S. at 51. If, as in this case, “the sentence is outside the Guidelines
range, the court may not apply a presumption of unreasonableness. It may consider the
extent of the deviation, but must give due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.

Denny makes two arguments about substantive unreasonableness. The first is
that the district court improperly drew factual conclusions about cars and the particular
vulnerability of victims defrauded of their vehicles. The district court did mention that
in American society automobiles are “important” and “represent a great investment to
people,” but this aside during the hearing did not serve as the court’s central reasoning.
Its emphasis, in contrast, focused on (1) the broader automobile theft ring in which
Denny played a central role and (2) the victims’ suffering as a result of the theft. There
was more than adequate evidence in the record to support both of the district court’s
points. By Denny’s own admission, he was involved in the theft and illegal sale of
twenty-five vehicles. Evidence offered by the victims described how they had been
forced to dip into savings and delay retirement as a result of receiving the fraudulent
checks. The evidence in the record, therefore, amply supports the conclusions drawn by
the district court.

Denny’s second argument is that the sentence imposed was excessive. In support
of this claim, Denny claims that his sentence would have been significantly less had the
No. 09-6029 United States v. Denny Page 13

court imposed a vulnerable victim enhancement under U.S.S.G. § 3A1.1(b), rather than
simply imposing a variance.

Denny’s argument fails for two reasons. First, his argument confuses the
susceptibility of a victim to a crime (which is taken into account under § 3A1.1(b)) with
the effects of a crime on a victim. The district court considered the effects of Denny’s
frauds on the victims given their financial conditions and the substantial asset that a
vehicle constitutes for the average American, not whether the victims were particularly
susceptible because they were selling cars.7 Therefore, Denny’s analogy fails, given that
§ 3A1.1(b) accounts for an entirely different factor than that considered by the district
court under § 3553(a). Second, Denny’s argument incorrectly assumes that the district
court’s variance was based solely on consideration of the victims. The district court
explicitly noted that the very nature of this crime—a robbery that was part of a large
automobile theft ring—was of a kind different from that envisioned by the Sentencing
Guidelines, making reliance on the Guidelines inappropriate. Therefore, § 3A1.1(b) is
an improper metric because it does not account for all of the factors considered by the
court pursuant to § 3553(a).

The sentence imposed, therefore, was both procedurally and substantively
reasonable.

IV.

For the foregoing reasons, we affirm the sentence imposed by the district court.

7
In contrast, this court found that chemotherapy patients were within the class of “vulnerable
victims” under the guidelines’ vulnerable victims enhancement, when the fraud being perpetrated involved
the presentation of an ineffective treatment for cancer. United States v. Moon, 513 F.3d 527, 540–41 (6th
Cir. 2008).