United States v. Tyrone A. Brisset
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the Guidelines range.
Gall v. United States, 552 U.S. 38, 51 (2007).
If it passes procedural muster, we must then determine whether the sentence is substantively
reasonable. In doing so, we are required to “take into account the totality of the circumstances[.]”
Ibid. “The touchstone for 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. 2007); see also United
States v. Kirchhof, 505 F.3d 409, 417 (6th Cir. 2007) (“We reverse sentences when it is unreasonable
to conclude that the circumstances, in light of the § 3553(a) factors, justify the sentence issued.”).
“A sentence may be considered substantively unreasonable when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors,
or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514
F.3d 508, 520 (6th Cir. 2008) (citation omitted). On the other hand, “[t]he fact that [we] might
reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” Gall, 552 U.S. at 51.
In cases involving within-Guidelines sentences, this court applies a rebuttable presumption
of reasonableness. See Conatser, 514 F.3d at 520 (“A properly calculated within-guidelines sentence
will be afforded a rebuttable presumption of reasonableness on appeal.”). This “presumption is not
binding.” Rita v. United States, 551 U.S. 338, 347 (2007). It simply “reflects the fact that, by the
time [we] consider a within-Guidelines sentence on review, both the sentencing judge and the
Sentencing Commission . . . have reached the same conclusion as to the proper sentence in the
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