Circuit Judge, concurring in part and concurring in the judgment.
I join the majority opinion in most respects, but I write separately because I believe that the majority gives inadequate attention to Marlowe’s argument that his sentence of life imprisonment violates the Sixth Amendment because judge-found facts triggered a substantial increase in his advisory Guidelines range. Although I do not believe that Marlowe’s sentence violates the Constitution, his claim deserves a more detailed analysis than it received in the majority opinion. Therefore, I concur in the judgment upholding Marlowe’s sentence.
*529The Supreme Court has summarized its recent Sixth Amendment sentencing jurisprudence as examining “whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and the offender did not concede).” Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2466, 168 L.Ed.2d 203 (2007). The crux of Marlowe’s constitutional claim is that his sentence violated the Sixth Amendment because, as a practical matter in his case, the district court could not have imposed a sentence of life imprisonment unless the court made the factual finding that Marlowe’s conduct so grossly deviated from a reasonable standard of care that he must have been aware of a serious risk of death or serious bodily injury — -the mens rea necessary to apply the base offense level for second-degree murder in calculating Marlowe’s Guidelines range. Had the district court not made the factual finding that Marlowe’s conduct amounted to second-degree murder, it appears that the facts found by the jury would have produced a Guidelines range between 210 and 262 months (seventeen and a half years to nearly twenty two years).1 Marlowe’s contention is that, had the district court imposed a sentence of life imprisonment in a case involving a Guidelines range of 210 to 262 months, we surely would have reversed and held the sentence to be substantively unreasonable. Echoing the language of Rita, Marlowe argues that, due to the likelihood that we would have reversed a variance of life imprisonment from a Guidelines range of 210 to 262 months, the district court here was in fact forbidden from sentencing Marlowe to life imprisonment unless the court found that Marlowe’s conduct amounted to second-degree murder.
To resolve Marlowe’s as-applied Sixth Amendment challenge requires answering the following question: assuming the district court had not made the second-degree-murder factual finding and that Marlowe’s Guidelines range was 210 to 262 months, would the district court’s analysis of the 18 U.S.C. § 3553 sentencing factors support an upward variance to a sentence of life imprisonment? That is, instead of finding that Marlowe committed second-*530degree murder as part of the Guidelines calculation, had the district court chosen to vary upward from the 210 to 262-month Guidelines range established by the jury’s verdict, would I vote to affirm or reverse Marlowe’s sentence of life imprisonment? As explained in further detail below, because the facts found by the jury in this case reveal crimes of a thoroughly depraved and heinous nature, I would have affirmed the imposition of a life sentence for Marlowe even as an upward variance from a Guidelines range of 210 to 262 months. Before analyzing Marlowe’s claim, however, I will provide a brief overview of the Supreme Court’s recent decisions suggesting that as-applied Sixth Amendment challenges might prove successful in cases similar to Marlowe’s.
I. AS-APPLIED SIXTH AMENDMENT CHALLENGES TO SENTENCES
In Rita, the Supreme Court permitted the use of a non-binding, appellate presumption of reasonableness to within-Guidelines sentences, but the Court noted Rita’s argument that according a presumption of reasonableness to a within-Guidelines sentence that depended upon substantial judicial fact-finding “raises Sixth Amendment ‘concerns.’ ” Rita, 127 S.Ct. at 2465. In his concurring opinion, Justice Scalia elaborated upon those concerns, arguing that review for substantive reasonableness using even advisory Guidelines “will inevitably [produce] some constitutional violations ... because there will be some sentences that-will be upheld as reasonable only because of the existence of judge-found facts.” Id. at 2478 (Scalia, J., concurring).
Justice Scalia offered two hypothetical cases to illustrate this argument, the second of which bears some resemblance to Marlowe’s case. Justice Scalia referred to “the common case in which the district court imposes a sentence within an advisory Guidelines range that has been substantially enhanced by certain judge-found facts.” Id. at 2477 (Scalia, J., concurring). Justice Scalia observed that if a defendant with a criminal history of I were convicted of robbery, the Guidelines range would be 33 to 41 months. Id. (Scalia, J., concurring). If, however, the district court found that the defendant discharged a firearm, inflicted serious bodily injury upon a victim, and stole more than $5 million, the Guidelines range skyrockets to 235 to 293 months. Id. (Scalia, J., concurring). Justice Scalia then reasoned that
[w]hen a judge finds all of those facts to be true and then imposes a within-Guidelines sentence of 293 months, those judge-found facts, or some combination of them, are not merely facts that the judge finds relevant in exercising his discretion; they are the legally essential predicate for his imposition of the 293-month sentence. His failure to find them would render the 293-month sentence unlawful. That is evident because, were the district judge explicitly to find none of those facts true and nevertheless to impose a 293-month sentence (simply because he thinks robbery merits seven times the sentence that the Guidelines provide) the sentence would surely be reversed as unreasonably excessive.
Id. (Scalia, J., concurring).
In response to Justice Scalia’s arguments, the majority opinion in Rita stated that “the Sixth Amendment concerns he foresees are not presented by this case.” Rita, 127 S.Ct. at 2466. Justice Scalia thus noted that the majority opinion “does not rule out as-applied Sixth Amendment challenges to sentences that would not have been upheld as reasonable on the facts encompassed by the jury verdict or *531guilty plea.” Id. at 2479 (Scalia, J., concurring) (citing Rita, 127 S.Ct. at 2466-67; id. at 2473 (Stevens, J., concurring)). More recently, in Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Justice Scalia again wrote a concurring opinion emphasizing that “the Court has not foreclosed as-applied constitutional challenges to sentences” and that “[t]he door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.” Gall, 128 S.Ct. at 602-03 (Scalia, J., concurring).
II. MARLOWE’S AS-APPLIED SIXTH AMENDMENT CHALLENGE
Marlowe argues that his case squarely presents the Sixth Amendment concerns raised by Justice Scalia’s hypothetical and that his as-applied challenge should succeed because his sentence of life imprisonment “would not [be] upheld but for the existence of a fact[, here, the mens rea of second-degree murder,] found by the sentencing judge and not by the jury.” Id. (Scalia, J., concurring). In essence, Marlowe’s argument is that we would not have affirmed the district court had the court imposed an upward variance to life imprisonment from a Guidelines range of 210 to 262 months. Having carefully examined the record in this case and the district court’s analysis of the § 3553 factors, I disagree.
As the majority opinion aptly summarizes, the evidence presented at trial in this case proved the existence of a violent and depraved conspiracy preying upon inmates at the county jail in Wilson County, Tennessee. The government demonstrated that Marlowe, the supervisor of the second shift at the jail, led a group of officers in regularly and severely beating inmates in the jail. Marlowe and his co-conspirators kept an oral “knock-out list” of inmates whom Marlowe had knocked unconscious with a single blow. Marlowe instructed other guards to strike inmates in the temple because it was a “knock-out point.” Marlowe and his co-conspirators denied their victims medical care and falsified incident reports to conceal the origins of the injuries that the conspirators inflicted upon their victims.
The case of Walter Kuntz starkly illustrates the depravity and cruelty of Marlowe’s conduct in this case. On January 13, 2003, Marlowe twice beat Kuntz, an inmate who arrived at the jail after being apprehended when he attempted to flee the scene of a minor accident. Kuntz was intoxicated, and after Kuntz failed to comply with Marlowe’s command to be quiet, Marlowe administered two separate beatings, which included several blows to the head. When Kuntz continued to make noise, Marlowe ordered that another officer beat Kuntz. Later that evening, after receiving information that Kuntz had undergone brain surgery in the recent past, Marlowe did nothing, even as Kuntz’s condition continued to deteriorate into unconsciousness and non-responsiveness. Finally, another officer suggested that Kuntz receive medical attention, but when the officers sought medical attention, neither Marlowe nor any other officer informed the medical personnel that Kuntz had received repeated blows to the head. Instead, the officers sought medical attention for a supposed case of alcohol poisoning. Testimony at trial established that head injuries such as Kuntz’s are generally treatable if medical care is obtained within the first hours and that the medical personnel who arrived at the jail would have airlifted Kuntz directly to a trauma center, *532rather than to a local medical center, had they known that Kuntz had possibly suffered a head injury.
In sum, as counsel for the government summarized at oral argument, the evidence in this case shows that Marlowe and his co-conspirators essentially abused inmates for sport. They tallied a list of noteworthy beatings, even joking about and reenacting particular attacks. They resorted to fraudulent incident reports to conceal their wrongdoing, and this pattern of behavior ultimately resulted in the death of one of the inmates under them supervision.
The district court in this case conducted a lengthy sentencing hearing, receiving testimony from a number of witnesses for both Marlowe and the government. The court noted the case was filled with “heart-wrenching aspects,” J.A. at 997 (Sent. Hr’g Tr. at 122), but also recognized that Marlowe was a supervisor in the jail, that he was “very culpable” in Kuntz’s death, that the jury convicted him of seven counts, and that substantial evidence at trial concerned Marlowe’s abuse of inmates in the jail. J.A. at 998-99 (Sent. Hr’g Tr. at 123-24). The district court noted the sentencing factors contained in § 3553(a), and the “context and the record make clear,” Rita, 127 S.Ct. at 2469, that the court decided that a sentence of life imprisonment was necessary to reflect the nature and circumstances of this offense, the need to reflect the seriousness of the offense, and the need to provide just punishment.
Under the abuse-of-discretion standard that the Supreme Court has directed that we apply to evaluate the substantive reasonableness of sentences, I am satisfied that the district court exercised its discretion appropriately in determining that Marlowe deserved a sentence of life imprisonment. Accordingly, I concur in the judgment upholding Marlowe’s sentence.
. As the majority notes, the district court used the 2002 edition of the Guidelines Manual to avoid ex post facto concerns in light of amendments raising the base offense levels for second-degree murder and involuntary manslaughter. Maj. Op. at 522 n. 6. Marlowe was convicted of several charges of violating 18 U.S.C. § 242 and conspiring to violate § 242, which prohibits the deprivation of another’s rights under color of law. The Guideline applicable to § 242, U.S.S.G. § 2H1.1(a)(1), directs the sentencing court to apply the base "offense level from the offense guideline applicable to any underlying offense” if it is greater than certain specified levels. The district court made the factual finding necessary to apply the Guideline for second-degree murder, which produced a recommended Guidelines sentence of life imprisonment. Had the judge used only the jury verdict, however, the greatest base offense level in this case appears to be that for aggravated assault, § 2A2.2, which is 15. Further, a two-level increase for "more than minimal planning” appears proper given the jury’s finding that Marlowe was guilty of count III, which alleged that Marlowe and a co-defendant failed to provide necessary and appropriate medical care to a jail inmate they had beaten. See U.S. Sentencing Guidelines Manual § 2A2.2 cmt. n. 3 (2002) (" '[M]ore than minimal planning’ means more planning than is typical for commission of the offense in a simple form.’’). Likewise, the six-level increase pursuant to § 2A2.2(b)(3)(C) for causing "Permanent or Life-Threatening Bodily Injury” is appropriate because the jury convicted Marlowe of causing an inmate's death. The jury verdict thus produces a base offense level of 23. When combined with 14 points from undisputed enhancements, Appellant Reply Br. at 5, Marlowe’s offense level would have been 37, resulting in a Guidelines range of 210 to 262 months given his criminal history score of zero.