United States v. Tyrone A. Brisset
particular case.” Ibid. “That double determination significantly increases the likelihood that the
sentence is a reasonable one.” Ibid.
B. Substantive Reasonableness
1. Failure to Consider Relevant Factors
Early in his brief’s analysis section, Brissett claims “that the district court failed to consider
relevant factors that render the enhancement [under §2L1.2(b)(1)(D)] substantively unreasonable as
applied to his case.” Appellant’s Br. at 14. As an initial matter, we note that it is probably
inaccurate to characterize this claim as pertaining to the substantive reasonableness of Brissett’s
sentence. Though we have repeatedly stated that a sentence is substantively unreasonable if the
district court fails to consider relevant factors, see, e.g., Conatser, 514 F.3d at 520, that notion is
derived from our decision in United States v. Webb, 403 F.3d 373 (6th Cir. 2005), which did not
distinguish between substantive and procedural reasonableness. Following Webb, we have also
referred to the failure to consider relevant § 3553(a) factors as a procedural error. See, e.g.,
Conatser, 514 F.3d at 519. Recently, we have begun to rectify this apparent overlap, moving toward
the notion that “the substantive reasonableness inquiry turns primarily on whether ‘the length of the
sentence is reasonable in light of the § 3553(a) factors.’” United States v. Basulto-Pulido, 309 F.
App’x 945, 948 (6th Cir. 2009) (quoting Tate, 516 F.3d at 469).
Although Brissett failed to make this argument below, we need not decide whether it is
forfeited; the fate of his claim is the same regardless of the applicable standard of review.
For its part, the Supreme Court agrees with the latter categorization, including “fail[ure] to
consider the § 3553(a) factors” in a list of “significant procedural error[s].” Gall, 552 U.S. at 51.
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