Upward “Variance,” Not Guidelines “Departure”: No U.S.S.G. § 4A1.3 Findings Required When the District Court Moves Above the Plea-Range Based on § 3553(a)

1. Introduction

In United States v. Ernest Shropshire (6th Cir. Apr. 27, 2026) (unpublished), the Sixth Circuit affirmed an above-Guidelines sentence imposed after a guilty plea to methamphetamine- and fentanyl-trafficking offenses. The case sits at the intersection of (i) how to classify an above-range sentence as a Guidelines “departure” versus a statutory “variance,” (ii) what procedural explanations are required depending on that classification, (iii) issue preservation at sentencing under the “Bostic question,” and (iv) the permissible use of uncharged conduct at sentencing.

Parties: The United States (Plaintiff-Appellee) and Ernest Shropshire (Defendant-Appellant).
Core issues on appeal: Whether Shropshire’s 121-month sentence was procedurally unreasonable (including whether the court had to justify the increase under U.S.S.G. § 4A1.3(a)(2)) and substantively unreasonable (including the court’s weighing of 18 U.S.C. § 3553(a) and consideration of uncharged conduct and criminal history).

2. Summary of the Opinion

Shropshire pleaded guilty to conspiracy and distribution counts under 21 U.S.C. §§ 841(a)(1) and 846. The plea agreement contemplated a lower Guidelines range (78–97 months) than the PSR, which had recommended a leadership enhancement. The district court rejected the leadership enhancement, but then imposed an upward variance by effectively increasing the offense level two levels based on § 3553(a), yielding a 97–121 month range and sentencing Shropshire to 121 months.

The Sixth Circuit held:

The sentence increase was a variance, not a Guidelines departure.
Because it was a variance, the court was not required to make findings under U.S.S.G. § 4A1.3(a)(2).
Procedural challenges were reviewed for plain error due to failure to object after the Bostic question, and no plain error was shown.
The sentence was substantively reasonable given the court’s explanation and the record (drug volume, recidivism, community harm, and criminal history).
The court permissibly considered uncharged conduct, supported by a preponderance of the evidence, and did not clearly err in crediting the record evidence.

3. Analysis

3.1. Precedents Cited

The panel’s reasoning is built from several sentencing standards cases—some governing appellate review, some governing issue preservation, and others governing the departure/variance distinction and the evidentiary scope of sentencing.

Appellate reasonableness review framework

United States v. Golson, 95 F.4th 456 (6th Cir. 2024): Cited for the modern two-part inquiry—procedural and substantive reasonableness—and the classic list of procedural errors (miscalculation, treating Guidelines as mandatory, failing to consider § 3553(a), clearly erroneous facts, inadequate explanation). The Shropshire panel uses Golson as its checklist and concludes none apply.
United States v. Hoyle, 148 F.4th 396 (6th Cir. 2025): Cited for abuse-of-discretion review as the baseline for sentencing challenges, particularly relevant to the substantive reasonableness claim.
Gall v. United States, 552 U.S. 38 (2007): Cited for deference to district courts and the principle that an appellate court may not reverse merely because it would have chosen a different sentence; also for framing substantive reasonableness as whether the sentence is “greater than necessary.”
United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018): Cited for (i) substantive reasonableness as a dispute about weight assigned to § 3553(a) factors, and (ii) district-court latitude, including the permissibility of considering uncharged conduct.
United States v. Robinson, 892 F.3d 209 (6th Cir. 2018): Cited for the proposition that disagreement with the district court’s balancing of factors does not establish substantive unreasonableness.

Issue preservation and standard of review

Holguin-Hernandez v. United States, 589 U.S. 169 (2020): Cited to distinguish substantive-reasonableness preservation; advocating for a lower sentence preserves the claim that the imposed sentence is substantively unreasonable.
United States v. Sherrill, 972 F.3d 752 (6th Cir. 2020) and United States v. Coleman, 835 F.3d 606 (6th Cir. 2016): Cited to impose plain-error review when a defendant does not specifically object to procedural reasonableness after the court’s solicitation of objections. Shropshire’s failure to make a specific procedural objection triggered plain-error review.
United States v. Bostic, 371 F.3d 865 (6th Cir. 2004): The source of the “Bostic question” requirement—district courts must ask counsel whether they have objections not previously raised; counsel must then specifically object to preserve procedural issues. The panel treats Shropshire’s silence as forfeiture.

Departure vs. variance classification

United States v. Denny, 653 F.3d 415 (6th Cir. 2011): Central to the opinion. Denny defines “departure” as movement under a specific Guidelines provision (e.g., § 4A1.3) and “variance” as movement outside the advisory range based on § 3553(a). The panel uses this framework to reject Shropshire’s argument that § 4A1.3 findings were required.
United States v. Woody, No. 22-3241, 2023 WL 2137358 (6th Cir. Feb. 21, 2023): Cited regarding the relevance of advance notice when a court signals a potential upward departure or variance. Here, the district court gave notice of a “possible upward variance,” reinforcing the variance characterization.

Sentencing evidence and uncharged conduct

Pepper v. United States, 562 U.S. 476 (2011): Cited, along with 18 U.S.C. § 3661, for the breadth of information a sentencing court may consider about a defendant’s background, character, and conduct.
United States v. Hatcher, 947 F.3d 383 (6th Cir. 2020): Cited for the proposition that courts may draw reasonable inferences from the record, supported by a preponderance of the evidence, when fashioning a sentence.
United States v. Small, 988 F.3d 241 (6th Cir. 2021): Cited for the burden-shifting practical rule at sentencing: once the government offers facts, the defendant must produce some evidence calling reliability or correctness into question. The panel uses Small to reject Shropshire’s attempt to impeach the informant with a nickname discrepancy.

3.2. Legal Reasoning

Step one: classify the sentencing move. The court begins by determining whether the district court “departed” under the Guidelines or “varied” under § 3553(a). It emphasizes that a departure requires invocation of a Guidelines provision (such as § 4A1.3), while a variance rests on § 3553(a). Because the district court (i) repeatedly grounded its decision in § 3553(a), (ii) never invoked § 4A1.3, (iii) gave prehearing notice of a possible upward variance, and (iv) recorded in its statement of reasons that it “varied upward two levels,” the Sixth Circuit treats the sentence as a variance.
Step two: dispose of the § 4A1.3 procedural attack. Shropshire’s procedural claim was structured as if the district court had found criminal history underrepresented and then departed under § 4A1.3(a)(2). But once the Sixth Circuit classifies the sentence as a variance, that entire line of argument collapses: a court need not “comply” with § 4A1.3’s departure mechanics if it is not departing under § 4A1.3 at all.
Step three: apply the correct standards of review. Because Shropshire did not specifically object to procedural reasonableness after the Bostic question, procedural review is for plain error. Substantive review remains for abuse of discretion because advocating for a lower sentence preserves substantive unreasonableness.
Step four: confirm procedural adequacy under the general framework. Under the Golson checklist, the panel finds no miscalculation (the court rejected the leadership enhancement), no mandatory-Guidelines treatment, no failure to consider § 3553(a), no clearly erroneous factfinding, and adequate explanation for the upward variance.
Step five: uphold substantive reasonableness. The district court emphasized (i) extraordinary drug quantities attributable to Shropshire beyond the plea-captured amounts, (ii) recidivism shortly after release and reentry programming, (iii) community harm, and (iv) an extensive criminal history including violence and supervision violations. The Sixth Circuit holds that this was a permissible balancing of § 3553(a), even if Shropshire preferred more weight on mitigation (family ties, programs completed, education/employment history).
Step six: address uncharged conduct and informant reliability. The panel reiterates that uncharged conduct may be considered at sentencing, and that reasonable inferences supported by a preponderance are permissible. It also holds that Shropshire’s attempt to undermine identification evidence (nickname “E”) did not show clear error—especially where other evidence supported the “E” linkage and no contemporaneous objection was made when the district court stated there was no dispute.

3.3. Impact

Although unpublished, the decision consolidates several practical points that frequently recur in federal sentencing litigation:

Labeling matters because it determines the procedural checklist. If a district court’s explanation and paperwork show § 3553(a)-based reasoning (a “variance”), appellants will have difficulty forcing the court into Guidelines-departure doctrines like U.S.S.G. § 4A1.3(a)(2).
Preservation remains decisive in the Sixth Circuit. The case reinforces that failure to specifically object after the Bostic question can convert potentially nuanced procedural arguments into a steep plain-error climb.
Uncharged conduct remains a powerful sentencing driver. The opinion underscores that plea agreements that “capture” only part of relevant conduct do not prevent the sentencing court from considering broader trafficking scope, as long as the inferences are supported by the record under a preponderance standard.
Community harm + drug volume + recidivism can justify above-range sentences. The Sixth Circuit accepted the district court’s characterization of Shropshire as a “large-scale drug trafficker” and treated that factual framing as a legitimate reason to impose an above-plea-range sentence, even where the formal Guidelines calculations were otherwise defendant-favorable (no leader enhancement).

4. Complex Concepts Simplified

Guidelines “departure” vs. statutory “variance”: A departure changes the sentencing range using a specific Sentencing Guidelines rule (e.g., U.S.S.G. § 4A1.3). A variance selects a sentence outside the advisory range based on the sentencing statute’s factors (18 U.S.C. § 3553(a)).
Procedural vs. substantive reasonableness: Procedural asks whether the court followed the correct steps (proper range calculation, consideration of § 3553(a), accurate facts, adequate explanation). Substantive asks whether the final sentence is too long (or too short) in light of § 3553(a).
Plain error: A stricter appellate standard used when an issue wasn’t properly preserved. The defendant must show an obvious error that likely affected the outcome and seriously affects the fairness or integrity of the proceedings.
The “Bostic question”: At the end of sentencing, the judge asks counsel whether they have any objections not previously raised. In the Sixth Circuit, failing to raise a specific procedural objection then can forfeit ordinary review and trigger plain-error review on appeal.
Uncharged conduct at sentencing: Conduct not charged or not admitted in the plea may still be considered if supported by reliable evidence under a “preponderance of the evidence” standard (more likely than not).

5. Conclusion

United States v. Ernest Shropshire affirms a two-level upward adjustment implemented as a § 3553(a) variance and clarifies the consequences of that classification: when a district court varies upward without invoking a Guidelines departure provision, it need not justify its decision under U.S.S.G. § 4A1.3(a)(2). The opinion also illustrates two enduring themes of Sixth Circuit sentencing review—deference to well-explained § 3553(a) balancing and the steep hurdles created by failing to preserve procedural objections after the Bostic question—while reaffirming that uncharged, reliably supported conduct may be considered in determining an appropriate sentence.