Express Acceptance of Guideline Calculations Waives Career-Offender Challenges; District Courts May Weigh Non-Scored Convictions under § 3553(a)

Introduction

In United States v. Lee Rose, No. 24-5936 (6th Cir. Oct. 20, 2025) (not recommended for publication), a Sixth Circuit panel (Judges Cole, Kethledge, and Nalbandian; opinion by Judge Cole) affirmed a within-Guidelines sentence of 216 months for a methamphetamine distribution offense. The appeal raised two issues:

Procedural reasonableness: whether the district court erred in classifying Rose’s prior Kentucky convictions for possession of a methamphetamine precursor chemical as qualifying “controlled substance” predicates for career-offender status under U.S.S.G. § 4B1.1(a); and
Substantive reasonableness: whether the district court gave unreasonable weight to Rose’s criminal history, particularly by referencing several prior convictions that did not generate criminal history points.

The Sixth Circuit affirmed on both fronts. The panel held that Rose waived his career-offender challenge by expressly agreeing at sentencing that the Guidelines calculations were “accurate and correct,” and it rejected his substantive challenge, concluding the court’s consideration of non-scored convictions was grounded in the record and appropriately tethered to § 3553(a).

Although the opinion is unpublished and non-precedential, it crystallizes two practical rules that will guide district courts and litigants:

Express, on-the-record acceptance of Guidelines calculations—including career-offender designation—constitutes waiver that forecloses appellate review.
When assessing deterrence and protection of the public, district courts may consider prior convictions that did not receive criminal history points, so long as the consideration is grounded in the record and balanced against mitigating factors.

Summary of the Opinion

The district court adopted a PSR that calculated a total offense level of 31 and a criminal history category of VI, producing a Guidelines range of 188–235 months. Rose qualified for Category VI both by his 14 criminal history points and by career-offender status due to several prior state controlled-substance felonies. Rose did not object to the PSR; when asked at sentencing, his counsel confirmed that the Guidelines calculations were “accurate and correct.” The court imposed 216 months, the government’s mid-range recommendation, after weighing the § 3553(a) factors.

On appeal:

Procedural reasonableness: The panel held that Rose waived his challenge to the career-offender enhancement by explicitly agreeing with the PSR’s calculations and range at sentencing, citing Sixth Circuit waiver cases. The court therefore declined to review the issue.
Substantive reasonableness: Applying the presumption of reasonableness to a within-Guidelines sentence, the panel rejected Rose’s argument that the district court unreasonably overemphasized criminal history. The record showed the judge referenced “eight convictions” (not arrests) that received no criminal history points and did so in service of deterrence and public protection under § 3553(a)(2)(B)–(C), while also considering mitigating factors (age, family support, child support obligations). The panel found no “unreasonable speculation” and no abuse of discretion.

Detailed Analysis

Precedents Cited and Their Role

United States v. Walters, 775 F.3d 778, 781 (6th Cir. 2015); United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007): These decisions frame appellate review: sentences must be both procedurally and substantively reasonable; overall review is for abuse of discretion.
United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010): Distinguishes de novo review for legal interpretations of the Guidelines from clear-error review for factual findings—relevant to how a career-offender classification would ordinarily be reviewed had it not been waived.
United States v. Olano, 507 U.S. 725, 733 (1993): Defines waiver as the intentional relinquishment of a known right. The panel uses Olano’s waiver/forfeiture framework to explain why no appellate review is available after an explicit concession.
United States v. Mabee, 765 F.3d 666, 673 (6th Cir. 2014): A party waives a claim by making a plain, explicit concession on the record regarding the precise issue later raised. The panel relies on this to characterize counsel’s “accurate and correct” statement as waiver.
United States v. Akridge, 62 F.4th 258, 263 (6th Cir. 2023): Recognizes waiver where a defendant concedes the Guidelines range at sentencing and later attempts to challenge it on appeal. This supports the panel’s refusal to review Rose’s career-offender claim.
United States v. Carter, 89 F.4th 565, 568–69 (6th Cir. 2023): Explains that when defense counsel explicitly agrees with the judge’s proposed course, “there would be nothing for us to review.” The panel quotes and applies this rationale to Rose’s concession.
United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018): Defines substantive unreasonableness as a claim that a sentence is too long or too short; used to frame Rose’s challenge.
United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc): Establishes the presumption of reasonableness for within-Guidelines sentences; central to affirming the 216-month sentence.
United States v. Tristan-Madrigal, 601 F.3d 629, 632 (6th Cir. 2010); United States v. Johnson, 934 F.3d 498, 500 (6th Cir. 2019): Emphasize deference and the “totality of the circumstances” approach to substantive reasonableness. The panel invokes these to defer to the district court’s balancing of factors.
United States v. Husein, 478 F.3d 318, 332 (6th Cir. 2007): Allows appellate courts to assess whether the district court gave an unreasonable amount of weight to a factor—framing Rose’s complaint about the emphasis on criminal history.
United States v. Zabel, 35 F.4th 493, 504 (6th Cir. 2022) (quoting United States v. Young, 847 F.3d 328, 371 (6th Cir. 2017)): Restates that a sentence must be “sufficient, but not greater than necessary” to achieve § 3553(a)’s purposes.
United States v. Hughes, 283 F. App’x 345, 353–54 (6th Cir. 2008); United States v. Van, 541 F. App’x 592, 598 (6th Cir. 2013): Caution against “unreasonable speculation” by district courts when facts are not in the record. The panel distinguishes these cases because the sentencing judge relied on record-supported convictions, not unsupported assertions or off-record assumptions.

Legal Reasoning

1) Procedural reasonableness: waiver through express acceptance of the Guidelines

The government argued that Rose waived any challenge to his career-offender status by failing to object to the PSR and expressly agreeing that the Guidelines calculations were correct. The panel agreed. Drawing on Olano and the Sixth Circuit’s consistent application of waiver in the Guidelines context (Mabee, Akridge, and Carter (2023)), the court held that counsel’s statement—“The guidelines and those calculations are accurate and correct”—was a clear, on-the-record concession of the precise issue later raised on appeal. That concession transformed what might otherwise have been a forfeiture (reviewable for plain error) into waiver (not reviewable at all).

The opinion contains a brief sentence suggesting “there was no such procedural error,” but the panel then expressly “decline[s] to review” procedural reasonableness based on waiver. Read holistically, the holding rests on waiver: by endorsing the PSR’s calculations, Rose left “nothing for [the court] to review” on appeal. Any implication about the merits is best understood as dicta and not a substantive ruling on whether the Kentucky precursor convictions qualify as career-offender predicates under the Guidelines.

2) Substantive reasonableness: no abuse of discretion in weighing criminal history, including non-scored convictions

The panel applied the presumption of reasonableness to Rose’s within-Guidelines sentence under Vonner. Rose’s principal attack was that the district court “overemphasized” his criminal history, allegedly by speculating from arrests or other unscored events. The record, however, undercut that claim: the judge referenced “eight convictions” that did not yield criminal history points. Those convictions appeared in the PSR and were thus record-supported. The court used them to assess:

Deterrence (18 U.S.C. § 3553(a)(2)(B)); and
Protection of the public (18 U.S.C. § 3553(a)(2)(C)).

Far from engaging in “unreasonable speculation” (as prohibited in Hughes and Van), the district judge considered documented convictions and weighed them alongside mitigation: Rose’s age (suggesting a lower recidivism risk), family support, and child-support obligations. Notably, although the court noted potential reasons to exceed the government’s recommended sentence, it hewed to the government’s mid-Guidelines recommendation of 216 months. Under the Sixth Circuit’s deferential, totality-of-the-circumstances review (Tristan-Madrigal; Johnson), the panel found no abuse of discretion and no basis to displace the presumption of reasonableness.

Impact and Forward-Looking Implications

Waiver practice at sentencing: This opinion underscores a critical, practice-oriented warning. If a defendant intends to challenge any aspect of the Guidelines—especially a career-offender classification—defense counsel must refrain from broadly endorsing the PSR’s calculations as “accurate and correct,” and must lodge a clear objection. An explicit concession eliminates appellate review. Silence may trigger only forfeiture and plain-error review; an affirmative concession triggers waiver and forecloses review entirely.
Career-offender predicates based on state drug offenses: The panel did not reach the merits of whether Kentucky “possession of a methamphetamine precursor chemical” qualifies as a “controlled substance offense” under § 4B1.2. That underlying substantive question remains open for a properly preserved case. After recent amendments to § 4B1.2’s text, some inchoate offenses are expressly included; but “possession of precursor” statutes vary in elements and may or may not fit the guideline’s definition. Future litigants should identify the precise Kentucky statutory elements and brief the categorical analysis thoroughly—while carefully preserving the issue below.
Use of non-scored convictions: District courts may consider prior convictions that did not yield criminal history points when weighing § 3553(a) factors, provided they are record-supported and not used speculatively. This opinion will likely be cited (persuasively, albeit not precedentially) to defend such consideration against “unreasonable speculation” arguments.
Within-Guidelines deference: The case reinforces the substantial deference afforded to within-Guidelines sentences. To overcome the presumption of reasonableness, an appellant must show that the district court either ignored relevant mitigation, relied on clearly erroneous facts, or placed unreasonable weight on a factor in a way that the record does not support.
Nonpublication and persuasive value: Although “not recommended for publication,” the opinion synthesizes and applies established Sixth Circuit law on waiver and substantive reasonableness. District courts and practitioners can anticipate similar outcomes in analogous cases, particularly where counsel’s concessions are clear and the sentencing record reflects balanced consideration of § 3553(a) factors.

Complex Concepts Simplified

Waiver vs. forfeiture: Forfeiture is a failure to object; appellate courts may review forfeited claims for “plain error.” Waiver is an intentional relinquishment of a known right (e.g., expressly agreeing the Guidelines are correct); a waived claim is not reviewable on appeal.
Procedural vs. substantive reasonableness:
- Procedural: concerns the method—correct calculation of the Guidelines, consideration of § 3553(a) factors, avoiding clearly erroneous facts.
- Substantive: concerns the outcome—whether the sentence length is too long or too short in light of the totality of the circumstances.
Presentence Investigation Report (PSR): A report prepared by probation that summarizes offense conduct, the defendant’s history, and computes the Guidelines. Courts routinely adopt PSR calculations absent objection.
Career-offender status (U.S.S.G. § 4B1.1): Increases offense level and criminal history category if the defendant was at least 18 at the time of the offense, the offense is a qualifying felony (typically a crime of violence or controlled substance offense), and the defendant has the requisite predicate convictions.
Non-scored convictions: Prior convictions that do not yield criminal history points (e.g., due to age or other rules) can still inform § 3553(a) assessments of deterrence and public protection if supported by the record.
“Unreasonable speculation” at sentencing: A district court may not rely on conjecture or off-record facts. It may, however, rely on record-supported facts, including PSR-documented convictions, and explain how those facts connect to § 3553(a)’s aims.
Presumption of reasonableness for within-Guidelines sentences: In the Sixth Circuit, a sentence within the properly calculated Guidelines range is presumed reasonable on appeal. Overcoming that presumption is difficult and typically requires demonstrating a clear misweighing of factors or reliance on incorrect facts.

Conclusion

United States v. Lee Rose provides two enduring lessons for federal sentencing practice in the Sixth Circuit. First, a defendant who explicitly affirms the correctness of the PSR’s Guidelines calculations at sentencing—including career-offender status—waives any later appellate challenge to those calculations. Second, in the substantive reasonableness analysis, district courts act within their discretion when they consider record-supported non-scored convictions as part of the deterrence and public-protection inquiries under § 3553(a), provided they also reckon with mitigating factors.

While unpublished and thus not binding precedent, the opinion is a clear and practical application of established Sixth Circuit law on waiver and substantive reasonableness. For defense counsel, the caution is unmistakable: preserve Guidelines objections explicitly, avoid broad concessions when a legal dispute is intended, and build a sentencing record that squarely joins any contested predicate-offense issues. For district courts, Rose confirms that careful, record-based engagement with both aggravating and mitigating considerations will withstand appellate scrutiny, especially for within-Guidelines sentences.