No Notice Required for Upward Variances Grounded in the PSR; Unpreserved Procedural Claims Reviewed for Plain Error
Introduction
United States v. Larry Gildersleeve, III (6th Cir. Mar. 20, 2026) arises from a prolonged failure to
collect, account for, and pay over federal employment taxes connected to a care-services business. After purchasing
Progressive Alternatives in 2011 and operating it as a sole proprietorship, Larry Keith Gildersleeve, III oversaw
nearly a decade of unpaid payroll tax obligations while substantial sums flowed from the business to personal accounts,
including personal spending directly from the business account. He pleaded guilty to eight counts under
26 U.S.C. § 7202.
At sentencing, the parties calculated an advisory Guidelines range of 12 to 18 months after reductions,
including a substantial-assistance departure. The district court nonetheless imposed an upward variance,
increasing the effective offense level and sentencing Gildersleeve to 24 months. On appeal, he challenged
both (1) the procedural reasonableness of the variance (arguing lack of notice) and (2) the
substantive reasonableness of the length of the sentence.
Summary of the Opinion
The Sixth Circuit affirmed. Procedurally, because Gildersleeve did not object at sentencing, the court reviewed for
plain error and held that no advance notice of an upward variance was required under
Irizarry v. United States, especially where the variance rested on information in the
presentence report (PSR) rather than “extraneous” material. Substantively, the court held the
sentence was not an abuse of discretion because the district court reasonably weighed the
18 U.S.C. § 3553(a) factors—emphasizing the duration of the conduct, self-dealing, failure to pay
personal income taxes on diverted funds, and lavish personal expenditures.
Analysis
Precedents Cited
1) Preservation and Standard of Review
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United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc)
Vonner supplies the crucial procedural posture: when a defendant fails to raise a procedural objection at the
sentencing hearing after the court invites objections, appellate review is for plain error.
Here, the district court expressly asked for “any objection[s], corrections, [or] arguments not previously raised,”
and none were offered—placing Gildersleeve squarely within Vonner’s rule.
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United States v. Nunley, 29 F.4th 824 (6th Cir. 2022) and
United States v. Battaglia, 624 F.3d 348 (6th Cir. 2010)
Nunley frames both procedural review (the requirement that the judge provide enough explanation to show reasoned
decisionmaking) and substantive review (abuse of discretion), while Battaglia is cited through Nunley for the
division of labor on appeal: legal conclusions are reviewed de novo; factual findings for clear error.
2) Notice for Variances
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Irizarry v. United States, 553 U.S. 708 (2008)
Irizarry is the centerpiece of the procedural holding. It establishes that a sentencing court is
not required to provide advance notice of its intent to impose a variance (as opposed
to a Guidelines departure subject to different notice rules). The Sixth Circuit applied Irizarry directly to reject
the claim that lack of notice made the sentence procedurally unreasonable.
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United States v. Vega-Santiago, 519 F.3d 1 (1st Cir. 2008) (en banc)
Quoted via Irizarry for the proposition that sentencing is “a fluid and dynamic process,” meaning the judge may not
know until the end whether a variance is warranted. The quote supports the practical rationale for why notice is not
required for variances.
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United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015)
Coppenger operates as the limiting comparison: there, the Sixth Circuit found procedural error when a variance was
based on “extraneous” information the defendant could not anticipate or meaningfully contest. The panel distinguished
Gildersleeve because the district court relied on facts in the PSR—information the defendant had access to and an
opportunity to dispute.
3) Substantive Reasonableness Framework
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United States v. Husein, 478 F.3d 318 (6th Cir. 2007)
Husein supplies the canonical Sixth Circuit definition: a sentence is substantively unreasonable if it is arbitrary,
based on impermissible factors, or fails to consider or properly weigh relevant § 3553(a) factors.
It also confirms that while within-Guidelines sentences are presumed reasonable, outside-Guidelines sentences are not
presumptively unreasonable.
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United States v. Demma, 948 F.3d 722 (6th Cir. 2020)
Demma supports the proposition that district courts may vary from the Guidelines but must justify the variance by
reference to the § 3553(a) factors. The panel used Demma to validate the district court’s reliance
on offense seriousness, deterrence, and related considerations.
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United States v. Coleman, 835 F.3d 606 (6th Cir. 2016)
Coleman provides the “no ritualistic one-by-one incantation” principle, allowing a district court’s
implicit consideration of factors to suffice when the record shows meaningful engagement with the
sentencing purposes.
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United States v. Perez- Rodriguez, 960 F.3d 748 (6th Cir. 2020)
Gildersleeve invoked Perez- Rodriguez to argue he lacked an extensive pattern of criminal activity or ongoing risk.
The panel distinguished it: Perez- Rodriguez involved a single illegal reentry, whereas Gildersleeve’s conduct was
repeated and sustained over years—an “ongoing” pattern of tax noncompliance.
Legal Reasoning
A. Procedural Reasonableness: No Notice Required for the Upward Variance
The procedural claim was that the district court should have warned the defense that it was considering an upward
variance beyond the post-departure Guidelines range. The panel’s reasoning is straightforward:
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Plain-error posture controlled because no procedural objection was made at sentencing, triggering
the Vonner rule.
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Irizarry foreclosed the notice argument: variances do not require advance notice, in part because the
judge’s view of the appropriate sentence often crystallizes only after hearing the parties and allocution.
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Coppenger did not apply because the upward variance was grounded in PSR facts—e.g., long-term failure
to pay taxes, substantial transfers to personal accounts, personal luxury expenditures from business funds, and failure
to file personal returns—not surprise “extraneous” information.
The upshot: where the contemplated variance is supported by record material disclosed in the PSR, a defendant’s
“lack of notice” argument will rarely gain traction, and it becomes even harder under plain-error review.
B. Substantive Reasonableness: A Reasoned § 3553(a) Variance Based on Duration, Self-Dealing, and Tax Evasion Context
The district court varied upward from a 12–18 month range to 24 months. The Sixth Circuit upheld the sentence by
emphasizing that the district court:
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Anchored the variance in offense gravity and duration: the conduct persisted from 2011 to 2019, with
significant tax loss and repeated quarterly nonpayment.
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Considered aggravating context beyond “mere” payroll-tax nonpayment: substantial personal enrichment,
lavish spending from business funds, and a failure to pay income taxes on the diverted amounts.
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Accounted for mitigating circumstances: difficult childhood and caregiving responsibilities for a
daughter with autism—showing the court did not ignore personal history and characteristics.
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Connected the sentence to core sentencing purposes: seriousness, deterrence, and protection of the
public (articulated in the Statement of Reasons and reflected in the court’s sentencing explanation).
The appellate court also rejected specific defense framings: low recidivism odds did not outweigh the seriousness and
pattern of conduct; Perez- Rodriguez was inapt; and the Guidelines range did not necessarily “capture” the broader
misconduct context the district court found salient.
Impact
Although “not recommended for publication” and thus not intended as binding circuit precedent, the decision fits neatly
into—and reinforces—several practical lessons for Sixth Circuit sentencing litigation:
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Notice challenges to variances remain uphill after Irizarry, particularly when the variance is based
on PSR facts rather than new information introduced late.
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Failure to object at sentencing can be decisive: Vonner’s plain-error framework makes reversal on
procedural grounds difficult unless the error is clear, affects substantial rights, and undermines the fairness and
integrity of judicial proceedings.
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Tax cases can draw upward variances when the conduct shows prolonged breach of trust and personal enrichment.
The opinion signals that courts may view long-term employment-tax nonpayment coupled with self-dealing and personal
non-filing as a compound seriousness story, supporting higher sentences for deterrence.
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“Unwarranted disparity” arguments require careful comparators. The panel accepted that the lengthy
duration and surrounding conduct could distinguish this case from other superficially similar § 7202 matters.
Complex Concepts Simplified
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Guidelines “departure” vs. “variance”: A departure is an adjustment within the Guidelines
framework (often tied to specific Guidelines provisions, such as substantial assistance). A variance is a
sentence outside the advisory range based on the statutory factors in 18 U.S.C. § 3553(a).
Under Irizarry, courts do not have to give advance notice of a possible variance.
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Procedural vs. substantive reasonableness: Procedural challenges focus on the process
(calculation, notice, explanation, reliance on correct information). Substantive challenges focus on whether
the sentence length is defensible given the § 3553(a) factors.
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Plain error review: A demanding standard used when the defendant did not preserve the issue in the
district court. The appellant must show not just error, but a clear error that likely changed the outcome and seriously
affects the fairness or integrity of proceedings.
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Presentence report (PSR): A probation-prepared report summarizing offense conduct, history, Guidelines
calculations, and relevant facts. Reliance on PSR facts generally does not “surprise” the parties because they can
review and object before sentencing.
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26 U.S.C. § 7202 (payroll tax crime): Targets willful failure to collect/account for/pay over taxes
withheld from employees—often treated as especially serious because it involves funds held in trust for the government.
Conclusion
The Sixth Circuit’s affirmance in United States v. Larry Gildersleeve, III reinforces two key
sentencing principles: (1) under Irizarry v. United States, district courts need not provide advance
notice of an intent to impose an upward variance, particularly when grounded in PSR facts; and (2) under
United States v. Vonner, failing to object at sentencing sharply constrains appellate procedural review.
On the merits, the panel accepted that a sustained pattern of payroll-tax nonpayment, combined with self-dealing and
personal tax noncompliance, can justify an upward variance under the § 3553(a) purposes of seriousness
and deterrence.