United States of America v. Tyler Allen Smith

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0161p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYLER ALLEN SMITH,
Defendant-Appellant.
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No. 22-1909
Appeal from the United States District Court for the Western District of Michigan at Marquette.
No. 2:22-cr-00001-1—Hala Y. Jarbou, District Judge.
Decided and Filed: July 31, 2023
Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Elizabeth A. LaCosse, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Marquette, Michigan, for Appellant. Theodore J. Greeley, UNITED STATES ATTORNEY’S
OFFICE, Marquette, Michigan, for Appellee.
NALBANDIAN, J., delivered the opinion of the court in which CLAY, J., joined.
CLAY, J. (pp. 10–11), delivered a separate concurring opinion. MOORE, J. (pp. 12–20),
delivered a separate dissenting opinion.
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OPINION
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NALBANDIAN, Circuit Judge. Tyler Smith pleaded guilty to conspiring to distribute
methamphetamine. As a repeat offender, he faced a statutory mandatory minimum of 180
months. But because Smith cooperated, the government moved for a downward departure and a
release of the mandatory minimum, which the district court granted. The district court then
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sentenced Smith to 158 months’ imprisonment. Smith now appeals, arguing that the district
court improperly calculated the starting guidelines range for the downward departure. Finding
no error, we affirm.
I.
In 2021, Smith was pulled over in a car that contained about 103 grams of crystal
methamphetamine. And later, the officers confirmed that Smith was a supplier and operator of a
drug-trafficking network in Michigan.
Relevant here, a federal grand jury indicted Smith for possession with intent to distribute
50 grams or more of methamphetamine and conspiracy to distribute and possess with intent to
distribute 50 grams or more of methamphetamine. After the grand jury returned an indictment,
the government filed a notice explaining that it would seek an enhanced mandatory minimum of
180 months under 21 U.S.C. § 851 because of Smith’s prior conviction for drug trafficking.
Smith then pleaded guilty to the conspiracy charge, and the government dropped the
possession charge. As part of his plea deal, Smith agreed to cooperate with the government as it
continued its investigation. The presentence report arrived at a guidelines range of 180 to 188
months—a combination of his uncontested guidelines range of 31-IV (151 to 188 months) and
his statutory mandatory minimum (180 months). And both parties agreed that the district court
should use the 180 to 188-month range as the basis for a downward departure.
In preparation for sentencing, the government moved for a release of the mandatory
minimum and a downward departure of one level under 18 U.S.C. § 3553(e) and U.S.S.G.
§ 5K1.1 for Smith’s cooperation. Although in the government’s view Smith had lied throughout
its investigation, the government agreed that Smith had supplied some helpful information—
thus, the government’s request for only a single-level departure. On the other hand, Smith
argued that he “earned and deserve[d]” a four-level departure. (R. 406, Sentencing Hearing,
p. 17.)
The effect of a downward departure in a case like this is to make the mandatory minimum
no longer mandatory. So if the district court granted the government’s request for a downward

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No. 22-1909 United States v. Smith Page 3
departure, 180 months would no longer be the floor of Smith’s sentence. See 18 U.S.C.
§ 3553(e).
At sentencing, first, the district court calculated the guidelines range based on Smith’s
criminal history category and offense level, as it was required to do under U.S.S.G. § 1B1.1. See
U.S.S.G. § 1B1.1(a) (explaining that the “court shall . . . [d]etermine the guideline range in [the
Sentencing Table] that corresponds to the offense level and criminal history category”). Just as
the parties had argued, the district court determined that Smith fell into the 31-IV range of 151 to
188 months. And the district court determined that Smith had a mandatory minimum of 180
months. See U.S.S.G. § 1B1.1(b)–(c).
Second, the district court determined that Smith’s mandatory minimum of 180 months
created a new range of 180 to 188 months.
Third, the court calculated the departure. Somewhere in the middle of the parties’
suggestions, the court decided on a two-level departure, explaining that “[o]ne level [wa]s
certainly appropriate and “maybe two levels.” (R. 406, Sentencing Hearing, p. 20–21.) The
district court said that it wasn’t “sure” Smith deserved two levels but decided to “give him the
benefit of that” anyway. (Id. at 20–21; see id. (explaining that “the overriding consideration is
. . . truthfulness” and that Smith’s “cooperation was undermined by his untruthfulness”).) Once
the court landed on a two-level departure, it determined what level on the Sentencing Table to
subtract the two levels from. And this was complicated because the 180 to 188-month “range”
did not correspond exactly to a preexisting range in the guidelines table.
The government argued that the two-level departure should start at the 32-IV range of
168 to 210 months because the new 180 to 188-month range fell “basically right in the middle”
of the 32-IV range. Smith argued that the 31-IV range of 151 to 188 months—as calculated in
the Presentence Report and confirmed by the district court in its § 1B1.1(a) calculation—
represented the starting point for the downward departure.
So the district court had two options. If it went Smith’s way, the court’s two-level
departure would arrive at the 121 to 151-month range (29-IV). If the court went the
government’s way, the district court would arrive at a higher 135 to 168-month range (30-IV).

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The district court took the government’s recommendation, started with the 32-IV range because
180 to 188 months fell in the middle of that range, and departed two levels to arrive at the 30-IV
range of 135 to 168 months.
After deciding on that range, the district court explained that “the guidelines in the end
are advisory” and that “ultimately the [c]ourt’s sentence is where the [c]ourt believes this
defendant should be sentenced to, and so even if there were other ranges that would be more
appropriate, ultimately the sentence that the [c]ourt is going to pronounce . . . is the appropriate
sentence.” (R. 406, Sentencing Hearing, p. 30–31.) The court then explained that it understood
“its discretion in determining an appropriate sentence pursuant to” Supreme Court precedent.
(Id. at 31.)
Then the court evaluated the 18 U.S.C. § 3553(a) factors and noted the following: the
need for deterrence in light of Smith’s multiple felonies and misdemeanors, the court’s desire to
avoid unwanted sentencing disparities among similarly situated defendants, Smith’s somewhat
stable upbringing, and Smith’s role in the crime. So after the district court considered “all the
factors in this case, pursuant to the Sentencing Reform Act of 1984,” it imposed a 158-month
sentence with ten years of supervised release. (Id. at 33–34.) Smith timely appealed, arguing
that his sentence was procedurally unreasonable.
II.
When a defendant properly objects below—as Smith did here—we review procedural
reasonableness for abuse of discretion. See United States v. Taylor, 648 F.3d 417, 422 (6th Cir.
2011). A sentence is procedurally unreasonable when, for instance, a district court improperly
calculates the guidelines range, treats the guidelines range as mandatory, doesn’t consider the
factors under 18 U.S.C. § 3553(a), uses clearly erroneous facts in coming up with a sentence, or
doesn’t adequately explain why a particular sentence was chosen. Id.
Because the guidelines are silent on the method for calculating a downward departure,
that determination falls within the district court’s discretion. United States v. Hayes, 762 F.3d
1300, 1303 (11th Cir. 2014). And any challenge as to the extent of a downward departure based

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No. 22-1909 United States v. Smith Page 5
on substantial assistance is unreviewable. United States v. Jones, 417 F.3d 547, 551 (6th Cir.
2005).
III.
Smith is challenging the guidelines range the district court used to subtract the two levels
from. To understand his challenge, we’ll lay out in some detail the three-step process for
granting a downward departure from the mandatory minimum in the district court: (1) the
district court must calculate the guidelines range under U.S.S.G. § 1B1.1; (2) the district court
then creates a new range with the mandatory minimum as the floor; and (3) the district court, in
its discretion, chooses a method for calculating a downward departure under § 3553(e) and either
grants or denies the departure. As we’ll explain, Smith doesn’t contest how the district court
applied steps (1) or (2). He only contests how the district court carried out its departure method
at step (3).
First, start with the district court’s initial guidelines calculation under U.S.S.G. § 1B1.1.
The district court must calculate the base offense level, criminal history category, and guideline
range from the Sentencing Table that corresponds to the defendant’s offense level and criminal
history category. U.S.S.G. § 1B1.1(a). Then, as relevant here, § 1B1.1(b)–(c) directs the court
to consider any applicable departures and the 18 U.S.C. § 3553(a) factors. So here, the district
court determined that Smith’s criminal history category and offense level corresponded to a 31-
IV range (151 to 188 months) on the Sentencing Table and that Smith had a mandatory minimum
of 180 months. Smith and the government agree with the district court on these numbers.
So far, so good.
Second, the mandatory minimum. When a mandatory minimum falls within a guidelines
range, it “becomes the floor” of the defendant’s new guidelines range. United States v. Joiner,
727 F.3d 601, 605 n.2 (6th Cir. 2013); see also U.S.S.G. § 5G1.1; United States v. Simpson, 228
F.3d 1294, 1303 (11th Cir. 2000). So the district court replaced the original floor of the range
(151 months) with Smith’s 180-month mandatory minimum. It then calculated a new guidelines
range of 180 to 188 months. The parties both agree that this is the correct guidelines range,
accounting for the mandatory minimum. Again, so far, so good.

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Now, the third step—where the district court determines the method for calculating the
downward departure and grants the departure. This is where the parties disagree. U.S.S.G.
§ 5K1.1 allows the district court to “depart from the guidelines” upon “motion of the
government” when the “defendant has provided substantial assistance” in an investigation or
prosecution. U.S.S.G. § 5K1.1 (emphasis added). But a district court may only depart below the
statutory mandatory minimum when the government invokes 18 U.S.C. § 3553(e).
When a district court chooses to impose a downward departure under 18 U.S.C.
§ 3553(e) (after the government requests it), the court must impose the sentence “in accordance
with the guidelines and policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3553(e).
“Because § 5K1.1 is silent as to the methodology to be used in determining the extent of
a substantial assistance departure, the government has discretion in recommending a
methodology, and the district court has discretion in deciding what methodology to use once it
grants a motion for departure.”1 Hayes, 762 F.3d at 1303; United States v. Sloss, 665 F. App’x
439, 442 (6th Cir. 2016) (rejecting a rule cabining the district court’s discretion to craft
methodology “in calculating a defendant’s reduced sentence”); see also United States v. Diaz,
546 F.3d 566, 578 (8th Cir. 2008) (reviewing the method for calculating a downward departure
under § 3553(e) for procedural error—that is, abuse of discretion); United States v. Prince,
214 F.3d 740, 762 (6th Cir. 2000) (“We review for abuse of discretion matters within the
discretion of the district court.”).
That discretion is only limited by the fact that the district court must begin the departure
at the right starting point and base such a departure only on substantial assistance. See United
States v. Stewart, 306 F.3d 295, 330–31 (6th Cir. 2002) (explaining that we review de novo
whether the district court used the correct starting point in calculating a downward departure
under § 3553(e)); United States v. Bullard, 390 F.3d 413, 417 (6th Cir. 2004); United States
1“These methodologies include offense-level-based reductions, months-based reductions, and percentage-
based reductions.” United States v. Marroquin-Medina, 817 F.3d 1285, 1289 (11th Cir. 2016). And it is within a
district court’s “discretion to use any of these methodologies.” Id.

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No. 22-1909 United States v. Smith Page 7
v. Smith, 278 F.3d 605, 609 (6th Cir. 2002) (“The sentencing court’s ultimate decision regarding
departure is reviewed for an abuse of discretion.”).
In Smith’s case, the district court decided to depart two levels for Smith’s substantial
assistance.2 Using the 180 to 188-month range that the parties had agreed was the correct
starting point, the district court turned to the Sentencing Table to calculate the downward
departure. Based on Smith’s criminal history category of IV, there were two different offense-
level ranges that could have applied: the original 31-IV range (151 to 188 months) or the 32-IV
range (168 to 210 months). The court chose the 32-IV range as the starting point.
The district court’s decision to choose to depart from the 32-IV range rather than the
31-IV range was well within its discretion, given Smith’s untruthfulness in his interviews with
the government, (R. 406, Sentencing Hearing, p. 18.), and all the other facts the district court
found under § 3553(a) that supported that decision: Smith “was a main partner in” the drug-
dealing operation; Smith’s multiple “previous jail sentences” had “certainly not been a
deterrent”; Smith had a “significant history of failing to appear, violations of probation, [and]
violations of parole”; and Smith had “four [prior] felonies,”3 (id. at 32–33.); cf. United States v.
Acosta, 963 F.2d 551, 553 n.2 (2d Cir. 1992) (“We have held that when a sentence falls within
the overlap and the sentencing judge makes clear that the same sentence would be imposed
regardless of which of the two guidelines ranges is applicable, we will not engage in the
metaphysics of determining which is the appropriate range.”); United States v. Simpkins, 953
F.2d 443, 446 (8th Cir. 1992) (“‘By overlapping the ranges, the table should discourage
unnecessary litigation. Both prosecution and defense will realize that the difference between one
level and another will not necessarily make a difference in the sentence that the court imposes.’
U.S.S.G. Ch. 1, Pt. A4(h), intro. comment.”).
2The government’s request for a one-level reduction shaped how the district court granted the departure.
As we noted, sometimes the government instead asks for a reduction of months, untied to the Sentencing Table.
See, e.g., Diaz, 546 F.3d at 568. Here, because the government chose the offense-level approach, the district court
decided to adhere to that approach in determining how to craft a departure. Both the 31-IV designation and the 32-
IV designation from the Sentencing Table encapsulated the 180 to 188-month guidelines range—the starting point
for the departure.
3Smith doesn’t challenge any of these findings.

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No. 22-1909 United States v. Smith Page 8
After calculating two levels down from the 32-IV range to the 30-IV range (135 to 168
months), the court imposed a 158-month sentence. We see no abuse of discretion in the district
court’s choice. As the Eighth Circuit concluded, the court’s decision falls precisely within its
discretion. Diaz, 546 F.3d at 568 (“Because the decision to depart by levels is discretionary, we
cannot say the district court’s decision to select the higher of the two levels that encompass the
mandatory minimum sentence was procedural error.”).
Smith’s argument is that the court procedurally erred when it chose a 32-IV range as the
start for the two-level departure instead of the original 31-IV guidelines range it calculated. He
contends that the court should have used the range that had already been calculated and that had
provided the upper bound for the new range.
The problem with Smith’s argument is that once the district court calculated the new
guidelines range based on the 180 to 188 month-sentence and the substantial-assistance calculus
of § 5K1.1, it was no longer bound by the 31-IV characterization calculated under § 1B1.1(a).
180 to 188 months became the new range. Indeed, the district court could have even departed by
months rather than by offense levels had it wanted to. See United States v. Hargrett, 156 F.3d
447, 450 n.1 (2d Cir. 1998) (“A downward departure based on Section 5K1.1 does not require
the district judge to pick a new offense level and a particular sentence within the range set for
that level; rather, the court may simply pick a sentence of so many months without mention of an
offense level.”); Diaz, 546 F.3d at 568 (“[T]he guidelines do not mandate a particular approach
for calculating a substantial-assistance downward departure. The sentencing court may, as here,
depart by levels; it also may depart by months.”). Instead, the district court exercised its broad
discretion to use the Sentencing Table as a guardrail in departing downward. See Stewart, 306
F.3d at 330–31.
Everyone, including the district court, agreed that the starting point was the new 180 to
188-month range. And the court didn’t abuse its discretion by choosing a Table range that
corresponded to that calculation and Smith’s criminal history category as part of its method of
downward departure. The 180 to 188-month range was still the starting point and lodestar. With
that, we decline to second-guess the district court’s approach now. See id. We see no procedural
error here.

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But even if there were error, it would be harmless. To establish harmless error, the
government must show that “the error at sentencing did not cause[] the defendant to receive a
more severe sentence” than he would have gotten absent the error. United States v. Johnson,
467 F.3d 559, 564 (6th Cir. 2006).
The government has carried its burden. That’s because the district court explained that
ultimately “the [c]ourt’s sentence is where the [c]ourt believes this defendant should be
sentenced to, and so even if there were other ranges that would be more appropriate, ultimately
the sentence that the [c]ourt is going to pronounce . . . is the appropriate sentence.” In making
that determination, the district court analyzed the § 3553(a) factors as applied to Smith, including
the need for deterrence in light of Smith’s multiple felonies and misdemeanors, the court’s desire
to avoid unwanted sentencing disparities among similarly situated defendants, Smith’s somewhat
stable upbringing, and Smith’s role in the crime. The court then determined that 158 months
reflected the proper balance. We think that regardless of the guidelines range used for the
departure the district court would have chosen the same sentence. See United States v. Morrison,
852 F.3d 488, 491 (6th Cir. 2017) (“If the record shows that the district court would have
imposed its sentence regardless of the Guidelines range, then an error in calculating the
Guidelines range is harmless.”).
If the district court had simply departed 22 months from the mandatory minimum of 180
months, it would have arrived at the same sentence that it imposed through a guidelines
calculation: 158 months. And the extent of that downward departure for substantial assistance is
unreviewable. Jones, 417 F.3d at 551 (“Where, as in this case, the district court grants a
downward departure for substantial assistance and the defendant’s claim on appeal goes only to
the extent of the departure, this Court has no jurisdiction over the appeal.”). In short, whether by
levels or by months, the district court could have reached the same 158-month sentence. So
considering that we can’t review how much the district court chose to depart and that any
procedural error is harmless, we AFFIRM.

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No. 22-1909 United States v. Smith Page 10
_________________
CONCURRENCE
_________________
CLAY, Circuit Judge, concurring. Tyler Smith appeals his below-Sentencing Guidelines
158-month sentence on the basis that it is procedurally unreasonable. He argues that the district
court calculated his Guidelines range incorrectly by choosing as the starting point for departure a
higher Guidelines range than he was initially given based on his criminal history category. He
argues that in deciding to grant a two-level downward departure, the district court should have
started from the Guidelines range of 151–188 months calculated in the presentence report as
corresponding with criminal history category 31–IV, rather than the range corresponding to
criminal history category 32–IV, or 168–210 months.
Smith, however, was subject to a mandatory minimum sentence of fifteen years, which
made Smith’s correct Guidelines range 180-188 months. The district court granted the
government’s motion to release the mandatory minimum and decided to depart downward by
two levels. When deciding a sentence after granting a motion for departure from a mandatory
minimum sentence pursuant to § 3553(e), the district court is required to use the mandatory
minimum sentence as the starting point for calculating any downward departure. United States v.
Stewart, 306 F.3d 295, 332 (6th Cir. 2002) (noting that where defendant’s starting Guidelines
range was less than the mandatory minimum and a motion to release the minimum was granted,
“the appropriate starting point for the defendant’s downward departure was his mandatory
minimum sentence”).
The district court appropriately determined that the mandatory minimum sentence was
the correct starting point for a downward departure. At sentencing, the district court specifically
stated: “I’m looking at starting at 180 to 188.” Tr. Sentencing Hr’g, R. 406, Page ID #2661.
Although the district court noted that it would use the Guidelines as a way of calculating the
downward departure, it made clear that it understood that its reliance on the Guidelines was
discretionary. Once a district court has identified the mandatory minimum as the starting point,
the decision to depart downward by Guidelines levels, months, or by a percentage, is within the

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No. 22-1909 United States v. Smith Page 11
district court’s discretion. See United States v. Sloss, 665 F. App’x 439, 442 (6th Cir. 2016)
(finding no abuse of discretion in district court’s decision to reduce defendant’s sentence based
on a percentage methodology as opposed to the number of months).
The issue in this case is whether the district court abused its discretion by choosing as the
starting point the higher of two ranges that each encompass Defendant’s statutory mandatory
minimum. Because the district court made clear that it was basing its departure on the factors
articulated in the statute, the district court committed no procedural error in recognizing that 180
months is the mandatory minimum sentence and then choosing to depart from the higher of two
corresponding Guidelines ranges that encompass that mandatory minimum. See United States v.
Diaz, 546 F.3d 566, 568 (8th Cir. 2008) (determining that district court did not commit a
procedural error in selecting the higher of two Guidelines ranges as the starting point for
calculating a downward departure where those two Guidelines ranges both encompassed the
mandatory minimum). Given that Defendant’s issue is with the extent of the departure, and we
lack jurisdiction to review the extent of a downward departure, Stewart, 306 F.3d at 329, I agree
that we must affirm.

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_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. Tyler Smith provided substantial
assistance to law enforcement. After the government moved for a sentence below Smith’s
mandatory-minimum sentence and his advisory Sentencing Guidelines range, the district court
granted Smith a two-level departure. The district court then applied that departure using an
erroneous Guidelines calculation. I believe that the district court’s mistake led the court to
impose a procedurally unreasonable sentence, and therefore I would vacate Smith’s sentence and
remand his case for resentencing. Because the majority holds otherwise, I respectfully dissent.
I.
At the outset of Smith’s sentencing hearing, the district court determined that Smith’s
adjusted offense level was 31 and that his criminal history category was four. R. 406 (Sent’g Tr.
4–5) (Page ID #2644–45). Ordinarily, that determination would have resulted in a guideline
range of 151 to 188 months’ imprisonment. See U.S.S.G. Ch. 5, Pt. A. But because Smith’s
conviction under 18 U.S.C. § 841 triggered a mandatory-minimum sentence of 180 months, the
district court found that his effective guideline range was 180 to 188 months. R. 406 (Sent’g Tr.
at 5) (Page ID #2645); see U.S.S.G. § 5G1.1(c). Both parties agreed. R. 406 (Sent’g Tr. at 5)
(Page ID #2645).
Citing the substantial assistance Smith provided to law enforcement, the government
moved to allow the district court to sentence Smith below his 180-month mandatory minimum
pursuant to 18 U.S.C. § 3553(e) and for a guideline departure pursuant to U.S.S.G. § 5K1.1. Id.
at 5–7 (Page ID #2645–47); R. 292 (Gov’t Mot. for Departure at 1) (Page ID #2053). The
district court granted a two-level departure. R. 406 (Sent’g Tr. at 20–21) (Page ID #2660–61).
The parties and the district court struggled to apply the departure. Had Smith not been
subject to a mandatory minimum, the matter would have been straightforward. Smith’s offense
level was 31 and his criminal history category was four; to apply the departure, the district court
would have reduced either number by two, yielding a guideline range of 121 to 151 months. See

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No. 22-1909 United States v. Smith Page 13
U.S.S.G. Ch. 5, Pt. A. But the mandatory minimum made things more difficult. As modified by
the mandatory minimum, Smith’s guideline range was 180 to 188 months. Because the district
court framed its departure in terms of levels, the court needed to convert Smith’s guideline range
into an offense level and criminal history category before it could apply the departure. Yet no
combination of offense level and criminal history category corresponds to a guideline range of
180 to 188 months. This meant that the district court could not look for 180 to 188 months in the
Guidelines and work backwards to arrive at an offense level and criminal history category.
The parties disputed how the district court should proceed. The government argued that
the district court was “supposed to start at [the] 180 month[] mandatory minimum and go down
from there[.]” R. 406 (Sent’g Tr. at 7) (Page ID #2647). In the government’s view, the closest
advisory range to Smith’s mandatory minimum that was reflected in the Guidelines was 168 to
210 months because “180 is basically right in the middle” of that range. Id. at 8 (Page ID
#2648). A two-level departure from the offense level or criminal history category corresponding
to that range would yield a new range of 135 to 168 months. See U.S.S.G. Ch. 5, Pt. A. Smith
disagreed. He argued that because his guideline range of 180 to 188 months was subsumed
within his original guideline range of 151 to 188 months, the district court should use his initial
offense level of 31 and criminal history category of four as the starting point for its departure. R.
406 (Sent’g Tr. at 21, 23) (Page ID #2661, 2663). A two-level departure from that offense level
or criminal history category would result in a guideline range of 121 to 151 months. See
U.S.S.G. Ch. 5, Pt. A.
The district court sided with the government. Initially, the district court explained that “if
we start at 180 to 188 months, which is really, given his scoring, his level, 31 and four, puts him
at the tail end of the sentence table spectrum, and even if we go down two levels, that puts him at
151 to 188[.]” R. 406 (Sent’g Tr at 21) (Page ID #2661). After Smith noted that a two-level
departure from an offense level of 31 and a criminal history category of four would result in a
guideline range of 121 to 151 months (not 151 to 188 months), the district court conceded that it
had “miscalculated” and clarified that it was “looking at 31, level 31, and if we start off with the
guideline range of 180 to 188, that puts him in that range that’s 31, five.” Id. at 22 (Page ID
#2662). The district court concluded that a two-level departure from that offense level and

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No. 22-1909 United States v. Smith Page 14
criminal history category yielded a final applicable guideline range of 135 to 168 months. Id. at
23–24 (Page ID #2663–64). Smith objected to the district court’s Guidelines computation, but
he was unable to persuade the district court to take a different approach. Id. at 24 (Page ID
#2664).
The district court concluded the sentencing hearing by explaining the sentence it would
impose. Noting that it was required to “make an individualized assessment based on the facts
that have been presented,” the district court stated that “whether you agree that it[] . . . should be
a one-level departure, two-level departure, or four-level departure, the guidelines in the end are
advisory[.]” Id. at 30 (Page ID #2670). The district court continued that “whether that
determination specifically in this case came to the level that we’re at or however anyone else
wants to determine it in terms of that [guideline] range . . . ultimately the [c]ourt’s sentence is
where the [c]ourt believes this defendant should be sentenced to[.]” Id. Accordingly, the district
court concluded, “even if there were other ranges that would be more appropriate, ultimately the
sentence that the [c]ourt is going to pronounce, [the court] believes, is the appropriate sentence.”
Id. at 30–31 (Page ID #2670–71). The district court then considered the 18 U.S.C. § 3553(a)
factors and sentenced Smith to 158 months’ imprisonment. Id. at 31–34 (Page ID #2671–74).
II.
When granting a departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, a
district court must use the appropriate “starting point” for the departure. United States v.
Stewart, 306 F.3d 295, 332 (6th Cir. 2002). From there, the district court may depart based on
the “defendant’s activities on behalf of the government” as well as any related “contextual
considerations.” United States v. Grant, 636 F.3d 803, 817 (6th Cir. 2011) (en banc). Here, the
district court did not use the appropriate starting point for its departure. I would hold that this
error led the district court to impose a procedurally unreasonable sentence. The district court
also stated that it would impose the same sentence regardless of the starting point based on its
view of factors other than Smith’s cooperation. I would hold that this statement is insufficient to
show that the district court’s error was harmless.

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A.
In cases that involve a mandatory-minimum sentence, the starting point for a departure is
determined using § 5G1.1 of the Guidelines, which provides:
(a) Where the statutorily authorized maximum sentence is less than the
minimum of the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.
(b) Where a statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily required
minimum sentence shall be the guideline sentence.
(c) In any other case, the sentence may be imposed at any point within the
applicable guideline range, provided that the sentence—
(1) is not greater than the statutorily authorized maximum
sentence, and
(2) is not less than any statutorily required minimum sentence.
We have used § 5G1.1 to determine the appropriate starting point for a district court’s
departure in two distinct factual scenarios. In Stewart, we identified the starting point that
applies when a mandatory-minimum sentence is greater than the maximum of the applicable
guideline range. 306 F.3d at 330–32. Under those circumstances, § 5G1.1 provides that the
statutory minimum “shall be the guideline sentence.” U.S.S.G. § 5G1.1(b). Stewart observed
that using a defendant’s original guideline range rather than the modified guideline range (i.e.,
the mandatory minimum) would “afford defendants a double benefit by first permitting them to
avoid a higher mandatory minimum sentence and then granting a departure from an even lower
sentencing guidelines range,” and held that “the appropriate starting point for calculating a
downward departure under [§ 3553(e)] is the mandatory minimum sentence itself.” 306 F.3d at
332.
In United States v. Burns, we addressed the starting point that applies when the
mandatory-minimum sentence is lower than the minimum of the applicable guideline range.
409 F. App’x 913, 916–17 (6th Cir. 2011). There, § 5G1.1 provides that the district court may
impose a sentence at any point within the applicable guideline range so long as the sentence “is
not less than any statutorily required minimum sentence.” U.S.S.G. § 5G1.1(c)(2).

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No. 22-1909 United States v. Smith Page 16
Echoing Stewart’s double-benefit concern, Burns held that the correct starting point for
calculating a downward departure in that situation was the guideline range, not the mandatory
minimum. 409 F. App’x at 917.
Smith’s case falls between Stewart and Burns and presents an issue of first impression in
this circuit. Smith’s applicable guideline range was 151 to 188 months and his mandatory
minimum was 180 months. His mandatory minimum was therefore neither entirely above (as in
Stewart) nor entirely below (as in Burns) his applicable guideline range. Under § 5G1.1,
Stewart’s applicable guideline range remained the same but was “restricted” to 180 to 188
months. U.S.S.G. § 5G1.1(c)(2) & cmt. 1. I would hold, consistent with Stewart and Burns, that
the appropriate starting point for a district court’s departure in these circumstances is the
restricted guideline range. I would further hold that when a district court departs from the
restricted range by levels, it must use the offense level and criminal history category that
produced that range. Applied here, these holdings would require the district court to begin its
departure with a restricted guideline range of 180 to 188 months, an offense level of 31, and a
criminal history category of four.
The district court recognized that Smith’s guideline range was 180 to 188 months, but the
court then increased his criminal history category by one before departing downward by two.
See R. 406 (Sent’g Tr. at 22) (Page ID #2662). That was error. Smith’s mandatory-minimum
sentence restricted his applicable guideline range, but it did not lead to an entirely new guideline
sentence. Cf. U.S.S.G. § 5G1.1(b). And because Smith’s applicable range was restricted but not
fundamentally changed, the district court should not have assigned Smith a new offense level or
a new criminal history category. Both before and after accounting for his mandatory minimum,
Smith’s offense level was 31 and his criminal history category was four. See id. § 5G1.1(c)(2).
The district court should have applied the two-level departure to either of those two figures and
arrived at an advisory guideline range of 121 to 151 months. See id. Ch. 5, Pt. A. By instead
increasing Smith’s criminal history category from four to five, the district court relied on a
higher and incorrect starting point that led the court to conclude with a higher and incorrect end
point.

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No. 22-1909 United States v. Smith Page 17
This case is unlike United States v. Diaz, 546 F.3d 566 (8th Cir. 2008), and the other
cases cited by the government and echoed by the majority. Diaz’s guideline range was 70 to 87
months, but his mandatory-minimum sentence was 120 months. Id. at 567. Given Diaz’s
substantial assistance, the government moved for a downward departure pursuant to § 3553(e)
and § 5K1.1. Id. The parties agreed that the starting point for the district court’s departure was
Diaz’s mandatory-minimum sentence of 120 months. Id.; accord Stewart, 306 F.3d at 332.
Recognizing that “there are two guidelines offense levels that have corresponding sentencing
ranges including the statutory minimum of 120 months,” the district court determined that the
appropriate starting point was the offense “level that had a corresponding sentencing range with
a lower end closest to the mandatory minimum.” Diaz, 546 F.3d at 567. The Eighth Circuit
affirmed, holding that the district court’s choice of guideline range was not procedural error. Id.
at 568.
The circumstances of this case are fundamentally different. Because Diaz’s mandatory-
minimum sentence exceeded his initial guideline range, his mandatory minimum became his
guideline sentence. See U.S.S.G. § 5G1.1(b). At that point, the district court could not use
Diaz’s original offense level or criminal history category as the starting point for its departure
because neither corresponded to his guideline sentence. As we explained in Stewart, using
Diaz’s original offense level or criminal history category would afford him a “double benefit by
first permitting [him] to avoid a higher mandatory minimum sentence and then granting a
departure from an even lower sentencing guidelines range.” 306 F.3d at 332. The district court
therefore had to select between two possible options, and the Eighth Circuit held that choosing to
use one option rather than the other was a matter within the district court’s discretion. Diaz, 546
F.3d at 568. Here, by contrast, Smith’s mandatory-minimum sentence of 180 months fell within
his applicable guideline range of 151 to 188 months. Thus, unlike in Diaz, there was no need to
reverse-engineer Smith’s offense level or criminal history category or to choose between two
guideline ranges.
Nor, contrary to the majority, is this case merely about the district court’s methodology.
I agree that our decisions do not require district courts to depart by levels, months, or some other
measure. See United States v. Sloss, 665 F. App’x 439, 442 (6th Cir. 2016). A district court may

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No. 22-1909 United States v. Smith Page 18
grant a departure expressed in terms of offense level or criminal history category before selecting
a sentence within the corresponding guidelines range. Alternatively, a district court may skip
that intermediate step and instead grant a departure measured solely in months. Smith does not
challenge the district court’s ability to choose among these methods, and this case does not
require us to decide whether district courts should use one method or the other. But we must be
careful not to conflate district courts’ discretion to select a particular methodology with a right to
misapply those methodologies. Where, as here, a district chooses to depart by levels, the court’s
failure to calculate properly the defendant’s guideline range results in a procedurally
unreasonable sentence. A district court’s failure to use the correct starting point for its departure
is no less significant because the starting point is expressed in levels rather than months.
Cf. Stewart, 306 F.3d at 332.
Lastly, it is irrelevant that the district court could have varied upward or that the court
could have imposed the same sentence regardless of its Guidelines calculation. Although the
majority hypothesizes that the district court could have found that Smith’s untruthfulness during
his interviews with law enforcement and his criminal history warranted departing from criminal
history category five rather than four, the Guidelines and our case law are more demanding.
A district court must start by correctly working through the Guidelines, see U.S.S.G. § 1B1.1;
the district court must then begin its departure with the appropriate starting point, see Stewart,
306 F.3d at 332; and the district court must conclude by imposing a departure based primarily on
the defendant’s cooperation and any factors related to that cooperation, see Grant, 636 F.3d at
817. Our job as appellate judges is to ensure that district courts follow this well-defined process,
not to develop post-hoc justifications for any errors the district courts have made along the way.
B.
The district court’s error was not harmless. “Under the harmless error test, a remand for
an error at sentencing is required unless we are certain that any such error was harmless—i.e. any
such error ‘did not affect the district court’s selection of the sentence imposed.’” United States v.
Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (quoting Williams v. United States, 503 U.S. 193,
203 (1992)). The record precludes me from finding that the district court’s error was harmless.

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No. 22-1909 United States v. Smith Page 19
As we recently held, a district court’s use of an incorrect guideline range “weighs against
a finding of harmless error.” United States v. Ziesel, 38 F.4th 512, 520 (6th Cir. 2022). That is
because the Guidelines have a “real and pervasive effect . . . on sentencing.” Molina-Martinez v.
United States, 578 U.S. 189, 199 (2016). Indeed, “when a Guidelines range moves up or down,
offenders’ sentences move with it.” Peugh v. United States, 569 U.S. 530, 544 (2013). Here, the
district court’s use of criminal history category five rather than category four led the court to
begin and end with a higher and incorrect guideline range. It is entirely plausible that the district
court’s error led it to impose a higher sentence than it would have absent the error. After all, the
sentence that the district court imposed was seven months higher than the top end of the
guideline range that Smith would have faced had the district court used the correct criminal
history category, and nothing in the record suggests that the district court intended to impose an
upward variance.
The majority and the government nonetheless contend that any such error was harmless
because the district court indicated it would impose the same sentence regardless of Smith’s
guideline range. See R. 406 (Sent’g Tr. at 30) (Page ID #2670). In some instances, we have
found similar statements made by district courts to be sufficient to demonstrate that an error the
district court made during sentencing was harmless. See United States v. Morrison, 852 F.3d
488, 492 (6th Cir. 2017). But the logic undergirding those decisions is not persuasive here.
Usually, a district court has substantial discretion to consider all relevant information when
imposing a sentence. See Concepcion v. United States, 142 S. Ct. 2389, 2395–96 (2022). When
a district court grants a downward departure, however, it must do so based primarily on factors
related to the defendant’s substantial assistance. See Grant, 636 F.3d at 817; United States v.
Verburg, 588 F. App’x 434, 444 (6th Cir. 2014). Given that comparatively limited discretion, an
error a district court makes when calculating or imposing a departure is less likely to be
harmless.
Here, the district court stated that it would impose the same sentence regardless of the
starting point for its departure based on the court’s evaluation of the § 3553(a) factors. See R.
406 (Sent’g Tr. at 30–34) (Page ID #2670–74). Such factors, however, “are secondary, rather
than primary, considerations.” Verburg, 588 F. App’x at 444. The district court did not state,

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No. 22-1909 United States v. Smith Page 20
and thus it is unclear, whether the court would have found that Smith’s substantial assistance
warranted a sentence lower than 158 months had the court started with a guideline range of 151
to 188 months (rather than 168 to 210 months) and ended with a range of 121 to 151 months
(rather than 135 to 168 months). At the very least, I cannot find “with certainty” that the district
court’s error “did not cause [Smith] to receive a more severe sentence.” United States v. Gillis,
592 F.3d 696, 699 (6th Cir. 2009). Accordingly, I would hold that the error was not harmless
and requires Smith to be resentenced.
III.
The district court sentenced Smith using an erroneous criminal history category and
guideline range. Because I believe that the district court’s procedural error requires us to vacate
Smith’s sentence and remand his case for resentencing, I respectfully dissent.

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