Funk appealed to the United States Supreme Court, which vacated our decision without opinion and remanded the case with instruction to reconsider our prior holding in light of its recent opinions on federal sentencing. Funk v. United States, ___ U.S. ___, 128 S.Ct. 861, 169 L.Ed.2d 710 (2008). Having now reconsidered the district court's sentencing decision — and Funk's sentence — in light of the recent Supreme Court case law, we conclude that the district court did not justify the variance in this case adequately, and therefore, the sentence is substantively unreasonable.

Kollar asserts that the district court was referring to U.S. v. Funk, 477 F.3d 421, 430 (6th Cir. 2007) (" Funk I") which held that "a district court making sentencing determinations may not implicitly reject Congress' policy decision to prescribe harsher penalties for career offenders by ignoring or outright rejecting a defendant's status as a career criminal offender." Funk I was remanded by Funk v. United States, ___ U.S. ___, 128 S.Ct. 861, 169 L.Ed.2d 710 (2008), without opinion, in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). On remand, this Court considered Gall, as well as Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and found that the sentence given to Funk was unreasonable due to the district court imposing its own policy determination regarding marijuana convictions over that of Congress and the Guidelines and because the district court failed to adequately justify the variance.

Forbes' reliance on Funk v. United States, 552 U.S. 1088, (2008), is as puzzling as it is misplaced. Upon appeal of this ruling, the Supreme Court granted certiorari and remanded to the Sixth Circuit Court of Appeals for reconsideration in light ofGall v. United States, 552 U.S. 38 (2007).