Procedural–Substantive Line Clarified: Unpreserved “Impermissible Factor” Claims Face Plain-Error Review, and Dissimilar Prior Crimes May Support Upward Variances

Introduction

In United States v. Bradford Paul Storti (6th Cir. May 6, 2025) (not recommended for publication), a Sixth Circuit panel (Judges Boggs, Larsen, and Davis; opinion by Judge Larsen) affirmed a 151-month sentence—an upward variance from a Guidelines range effectively constrained to 120–121 months by a statutory minimum—for possession of and accessing with intent to view child pornography. The decision addresses two recurring appellate themes:

How to distinguish, preserve, and litigate procedural versus substantive sentencing challenges; and
Whether and how a district court may rely on a defendant’s criminal history— including dissimilar prior crimes and conduct already accounted for by the Guidelines— to support an upward variance under 18 U.S.C. § 3553(a).

Although the opinion is unpublished, it delivers clear guidance on preservation and review of sentencing claims, reinforces the breadth of district court discretion under § 3553(a), and clarifies the Sixth Circuit’s reading of United States v. Lee in the context of relying on dissimilar prior offenses to justify a variance.

Background

Law enforcement executed a search warrant at Storti’s Michigan residence on April 29, 2020. Officers recovered 141 images and 39 videos suspected to be child pornography. A board-certified pediatrician reviewed the collection and identified a representative sample of 20 files that “most clearly” depicted minors; one video was notably graphic, showing a minor bound and blindfolded with duct tape while being penetrated by a penis.

A federal grand jury charged Storti with attempted possession and possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). Because of two prior child-exploitation convictions, he faced a 10-year mandatory minimum under § 2252A(b)(2). The Presentence Report initially calculated a Guidelines range of 97–121 months; the mandatory minimum raised the effective range to 120–121 months.

The government sought an upward variance to 151 months citing:

Storti’s multiple child-exploitation offenses and violations of supervised release;
Demonstrated recidivism and treatment failures; and
The seriousness of the offense conduct, including sadistic and masochistic content.

The district court agreed and imposed 151 months, emphasizing recidivism risk, public protection, deterrence, and respect for the law. Storti appealed, styling his arguments primarily as a challenge to the substantive reasonableness of the variance.

Summary of the Opinion

The Sixth Circuit affirmed. Key holdings include:

Many of Storti’s arguments, though framed as “substantive,” were procedural in nature (e.g., claims that the court relied on impermissible factors or clearly erroneous facts). Because he did not object at sentencing, those procedural claims were subject to plain-error review—and failed.
It was not error for the district court to consider supervised-release violations and prior treatment failures under § 3553(a) in assessing recidivism risk and public protection needs.
Even to the extent the court considered “dissimilar” past crimes, the panel expressed skepticism that Lee announces a categorical prohibition against using dissimilar prior offenses to support a variance; in any event, challenges to reliance on allegedly “impermissible” considerations are procedural and unpreserved here.
Relying on conduct already captured in the Guidelines calculation to support an upward variance does not, without more, constitute procedural error or substantive unreasonableness.
The upward variance to 151 months was substantively reasonable in light of Storti’s criminal history, the seriousness and sadistic nature of the offense conduct, demonstrated recidivism, and the need for deterrence and to protect the public.

Analysis

Precedents Cited and Their Role

United States v. Morgan, 687 F.3d 688 (6th Cir. 2012) — Reiterates the two-step reasonableness review: procedural and substantive. The panel uses Morgan to frame the inquiry.
United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018) — A cornerstone case distinguishing procedural (calculation, explanation, impermissible factors) from substantive (weighting of § 3553(a) factors) reasonableness. The panel uses Rayyan to reclassify Storti’s ostensibly “substantive” complaints as procedural (impermissible-factor and clearly-erroneous-fact theories).
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc) — Establishes plain-error review for unpreserved procedural challenges to sentencing. Critical to the outcome because Storti did not object contemporaneously.
Greer v. United States, 593 U.S. 503 (2021) — Confirms the defendant’s burden to show entitlement to relief under plain-error review. The panel invokes Greer to emphasize Storti’s failure to carry that burden.
United States v. Parrish, 915 F.3d 1043 (6th Cir. 2019), and United States v. Cabrera, 811 F.3d 801 (6th Cir. 2016) — Both reinforce that reliance on “impermissible factors” is a procedural error, not a substantive one. This classification drove the plain-error disposition of several of Storti’s arguments.
United States v. Lee, 974 F.3d 670 (6th Cir. 2020) — Cited by Storti for the proposition that dissimilar prior crimes should not drive an upward variance. The panel expresses skepticism that Lee imposes a categorical bar on considering dissimilar prior offenses, reading Lee more narrowly and case-specifically.
United States v. Lanning, 633 F.3d 469 (6th Cir. 2011) — Positions “double counting” as a procedural claim, yet recognizes that complaints about “too much weight” on criminal history sound in substantive reasonableness and are reviewed for abuse of discretion even if not preserved. The panel uses Lanning to structure its analysis of Storti’s double-counting argument.
United States v. Trejo, 729 F. App’x 396 (6th Cir. 2018) — Collects cases holding that district courts may consider, under § 3553(a), conduct that also informed the Guidelines calculation when deciding to vary. The panel relies on this principle to reject both procedural and substantive versions of Storti’s double-counting objection.
United States v. Graham, 622 F.3d 445 (6th Cir. 2010) — Confirms that substantive-reasonableness claims are reviewed for abuse of discretion even without an objection below.
United States v. Mitchell, 107 F.4th 534 (6th Cir. 2024) — Emphasizes that assigning weight to § 3553(a) factors is “a matter of reasoned discretion, not math.” The panel uses Mitchell to respond to comparative-sentencing and statistics-based arguments.
United States v. Hymes, 19 F.4th 928 (6th Cir. 2021) — Reaffirms the “front row seat” deference to district courts in sentencing, cautioning that mere disagreement with the district court’s judgment is insufficient for reversal.

Legal Reasoning

Recharacterization and preservation of challenges.
The court begins by disentangling procedural from substantive objections. Claims that a district court:
- Relied on “impermissible factors,”
- Misapprehended or lacked a factual basis (i.e., clearly erroneous facts), or
- Double-counted items encompassed in the Guidelines,
are procedural. Because Storti did not object on these grounds at sentencing, the panel applied plain-error review (Vonner; Greer) and found none. This threshold move—relabeling “substantive” challenges as procedural—proved dispositive for several arguments, including:
- The contention that supervised-release violations are “typical” and thus “impermissible” considerations.
- The claim that the court lacked a factual basis to infer treatment “inability.”
- The assertion that reliance on dissimilar prior crimes contravened Lee.
No categorical bar on considering dissimilar prior crimes.
Addressing Lee, the panel indicates skepticism that Lee establishes a categorical rule forbidding reliance on dissimilar prior crimes to support variances. Rather, Lee was context-specific. Here, even if the court credited dissimilar prior conduct, the challenge would be procedural (impermissible-factor theory), unpreserved, and not plainly erroneous.
Use of conduct already reflected in the Guidelines.
Both as a procedural and substantive matter, the panel reiterates a settled Sixth Circuit position: a district court can consider under § 3553(a) the same conduct that informed the Guidelines calculation when deciding to vary upward (Trejo). The mere overlap is neither procedural error nor substantive unreasonableness. To the extent Storti recast this as a substantive complaint about weight, review was for abuse of discretion—and the panel found none.
Substantive reasonableness: the “weight” problem.
On the merits, the district court’s emphasis on recidivism risk, seriousness, deterrence, just punishment, and public protection fell comfortably within its discretion. The record—including prior sex offenses, repeated supervised-release violations, efforts to avoid detection (aliases, attempted identity theft of a deceased infant), failure to register, and the graphic/sadistic characteristics of the offense conduct—supported a conclusion that the statutory objectives in § 3553(a)(2) required more than the 120–121 month effective range.

The panel responded to Storti’s statistics and comparator-case arguments by invoking Mitchell’s “not math” principle and Rayyan’s admonition that unevenness across judges or districts does not demonstrate unreasonableness. The district court’s detailed explanation and restrained history with above-Guidelines sentences further bolstered reasonableness.

Impact

Though unpublished, the decision carries practical and doctrinal significance:

Preservation is paramount. Defense counsel must contemporaneously object to the use of allegedly impermissible considerations, assertions resting on clearly erroneous facts, and supposed double counting. Mislabeling procedural issues as “substantive” will not avoid plain-error review on appeal.
Lee is not a categorical shield. The panel’s skepticism that Lee imposes a bright-line bar on considering dissimilar prior crimes reduces the leverage of defendants seeking to cabin the district court’s historical lens. Lee remains relevant, but its force depends on case-specific context and explanation—not categorical exclusion.
Overlap with Guidelines is permissible. The reaffirmation that courts may rely on conduct already used in the Guidelines to vary upward under § 3553(a) preserves a broad space for district court reasoning and narrows “double counting” attacks.
Comparative and statistical arguments have limited traction. Average sentences and handpicked comparator cases rarely carry the day. Without a compelling demonstration of how underlying Guidelines differences and individualized § 3553(a) factors align, such arguments will be discounted.
Child-exploitation sentencing. The opinion underscores that sadistic content, sustained recidivism, and evasion efforts can justify significant upward variances for possession/access offenses, particularly where prior sanctions and treatment have failed.

Complex Concepts Simplified

Procedural vs. Substantive Reasonableness:
- Procedural: Did the court correctly calculate the Guidelines, treat them as advisory, rely on permissible and factually supported considerations, and adequately explain the sentence?
- Substantive: Given the § 3553(a) factors, is the sentence “too long” or “too short”? This focuses on the weight the court assigned to competing considerations.
Plain-Error Review: Applies when a party fails to object at sentencing. The appellant must show (1) error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. It is a demanding standard, and the burden is on the defendant.
Upward Variance vs. Departure: A “variance” is a sentence outside the Guidelines range based on § 3553(a) factors; a “departure” is a sentence outside the range based on provisions within the Guidelines themselves. This case involved a variance.
Statutory Minimum Affecting the Range: Where a statute imposes a minimum sentence (here, 10 years under § 2252A(b)(2)), the effective Guidelines range cannot dip below the statutory floor. Storti’s range thus narrowed to 120–121 months.
“Double Counting” (in this context): An argument that the court unfairly “counted twice” the same conduct—once in the Guidelines score and again when varying. The Sixth Circuit allows overlap: a judge can consider the same facts both in the Guidelines and under § 3553(a) without committing error, provided the ultimate sentence is justified and explained.
“Mine-run” vs. “Atypical” Cases: Some arguments suggest that only atypical features justify variances. The panel rejects the idea that courts may consider supervised-release violations only if “atypical.” Courts may consider such violations as part of the individualized § 3553(a) assessment.

Conclusion

United States v. Storti affirms a substantial upward variance for a repeat child-exploitation offender and—more importantly—sharply delineates the border between procedural and substantive sentencing claims. The court reiterates that:

Attacks on “impermissible” considerations or alleged factual error are procedural, must be preserved, and will otherwise be reviewed only for plain error;
District courts may consider dissimilar prior crimes and conduct already reflected in the Guidelines when applying § 3553(a); and
Substantive reasonableness review remains highly deferential, focusing on reasoned discretion, not numeric comparisons or averages.

Although unpublished, the opinion is a practical roadmap for sentencing litigation in the Sixth Circuit: preserve procedural objections; expect limited traction from statistics and comparators; and anticipate that a well-explained emphasis on recidivism, deterrence, and public protection—especially in child-exploitation cases featuring sadistic content and demonstrated treatment failures—will support upward variances on appeal.