Because no objection was made at sentencing, we review this claim for plan error. See United States v. Tate, 516 F.3d 459, 465-66 (6th Cir. 2008). Burleson cannot establish that the alleged violation of Rule 32(i)(1)(A) affected her substantial rights, and we therefore AFFIRM.
Thus, even if we were to accept Herrera-Zuniga's argument that his criminal history score adequately accounted for the seriousness of his past criminal conduct, that would not have precluded the district court from imposing an above-Guidelines sentence in this case. See United States v. Tate, 516 F.3d 459, 468 (6th Cir. 2008) (affirming upward departure under § 4A1.3 where sentencing judge based its departure on "a wide range of considerations," some of which were not directly related to defendant's criminal history). The only requirement is that the court determine, "in light of all the facts and circumstances of the particular case before it, whether the range in question is appropriate to the case."
The district court's overall sentencing determination is reviewed for reasonableness. United States v. Tate, 516 F.3d 459, 464 (6th Cir. 2008) (citing United States v. Thomas, 498 F.3d 336, 339 (6th Cir. 2007)). The reasonableness of a sentence is reviewed under a deferential abuse-of-discretion standard.
Applying this test, we have held that defendants do not preserve an objection under Rule 32(i)(1)(A) merely by asserting that they have not read their presentence report or discussed it with their attorney. See United States v. Tarpley, 295 F. App'x 11, 16-17 (6th Cir. 2008); United States v. Tate, 516 F.3d 459, 465-66 (6th Cir. 2008). Rather, defendants must object to a court's decision to proceed with the sentencing
When a defendant does not challenge the procedural reasonableness of his sentence, this court may "limit our reasonableness review" to whether the sentence was substantively reasonable. United States v. Tate, 516 F.3d 459, 470 (6th Cir. 2008). The "touchstone" of this court's substantive reasonableness review is "'whether the length of the sentence is reasonable in light of the § 3553(a) factors.'"
As to substance, the "touchstone" of our review is "whether the length of the sentence is reasonable in light of the § 3553(a) factors." United States v. Tate , 516 F.3d 459, 469 (6th Cir. 2008). We presume a within-Guidelines sentence is substantively reasonable.
Therefore, we need not review for procedural reasonableness. See United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). "Substantive reasonableness turns on whether the length of the sentence is unreasonable because the sentencing court `select[ed] the sentence arbitrarily, bas[ed] the sentence on impermissible factors, . . . or [gave] an unreasonable amount of weight to any pertinent factor.'"
Moreover, "[a]lthough this court's presumption of reasonableness applies only to sentences inside of the Guidelines range, there is no presumption against a sentence that falls outside of the range." United States v. Tate, 516 F.3d 459, 469-70 (6th Cir. 2008) (emphasis omitted). "Procedural reasonableness requires that a district court must properly calculate the guidelines range, treat the guidelines as advisory, consider the § 3553(a) factors and adequately explain the chosen sentence — including an explanation for any variance from the guidelines range."
"The touchstone for our review [for substantive reasonableness] is whether the length of the sentence is reasonable in light of the § 3553(a) factors." United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). Nesbitt does not argue that the district court selected his sentence arbitrarily or based the sentence on impermissible factors.
To survive appellate review, a sentence must be both substantively and procedurally reasonable. United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). In his second appeal, Stephens argues that his sentence of 270 months' imprisonment was not reasonable because the district court failed to consider the § 3553(a) factors and because the district court should not have applied the career offender enhancement that resulted in a much higher guidelines range.