Sixth Circuit Clarifies Discretion to Deny Time‑Served Variances Without “Magic Words” and to Avoid Double Credit

Introduction

In United States v. Lawrence Edward Slaughter, II (6th Cir. Oct. 22, 2025) (unpublished), the Sixth Circuit affirmed a within‑Guidelines sentence against a procedural reasonableness challenge. The case sits at the intersection of federal sentencing procedure, the role of the Bureau of Prisons in awarding credit for prior custody under 18 U.S.C. § 3585(b), and the distinction between Guidelines departures and § 3553(a) variances.

The core dispute: whether the district court procedurally erred by not expressly addressing a defendant’s “time served” in state custody when denying his request for a downward variance. The panel (Judges Nalbandian, Mathis, and Ritz; opinion by Judge Ritz) held that the court’s explanation—focused on avoiding double credit and the lack of clear record support—sufficed. The opinion reinforces that district judges need not employ “magic words,” cite every presentence report paragraph, or scour the record, so long as their reasoning is logically responsive and shows consideration of the parties’ arguments.

Summary of the Opinion

• Background: While on probation for a prior felony, Lawrence Slaughter was found in unlawful possession of a firearm. He initially faced Michigan state charges, had his state bond revoked for contempt, and served some time in state custody. Later, federal charges supplanted the state charges; the state case was dropped.
• Plea and Sentencing: Slaughter pleaded guilty federally. The parties agreed to an advisory Guidelines range of 37–46 months. He sought both a downward departure (U.S.S.G. §§ 4A1.3(b), 5K2.23, and 5G1.3) and a downward variance under § 3553(a), arguing, among other things, that his sentence should be adjusted to account for uncredited time served in state custody. The district court imposed 42 months (within the range), denied both departure and variance, and explained concerns about double counting and insufficient evidence to parse which custody time applied to which charge and for how long.
• Appeal: On appeal, Slaughter raised a preserved procedural reasonableness challenge to the court’s denial of his variance, claiming that the judge failed to consider his time‑served argument and the PSR’s relevant paragraph. He did not separately argue the denied departure; that issue was deemed abandoned.
• Holding: Affirmed. The district court adequately considered and addressed the time‑served argument; it was not required to cite the PSR paragraph explicitly or to use “magic words.” The court acted within its discretion to leave crediting to the Bureau of Prisons and to avoid potential double credit.

Analysis

Precedents Cited and Their Role

• Gall v. United States, 552 U.S. 38, 51 (2007): Defines procedural reasonableness errors (e.g., miscalculating the Guidelines, treating them as mandatory, failing to consider § 3553(a), relying on clearly erroneous facts, or inadequately explaining the sentence). Here, the panel measured the district court’s explanation against Gall’s framework and found no error.
• United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004): Requires district judges to ask parties at sentencing whether there are any unraised objections. This “Bostic question” affects preservation. The district judge asked; defense counsel articulated dissatisfaction and re‑raised the time‑served point, preserving the issue for abuse‑of‑discretion review.
• United States v. Taylor, 800 F.3d 701, 713 (6th Cir. 2015): Clarifies standards of review for preserved (abuse of discretion) versus unpreserved (plain error) procedural claims. Applied to designate the standard here as abuse of discretion.
• United States v. Gates, 48 F.4th 463, 468–69 (6th Cir. 2022): Reiterates general reasonableness review framework; cited for standard-of-review scaffolding.
• United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009): A sentence is procedurally reasonable if the record reflects that the judge considered the defendant’s mitigation argument and explained the basis for rejecting it. The panel cites this principle in concluding the district court sufficiently addressed Slaughter’s time‑served claim.
• United States v. Chiolo, 643 F.3d 177, 184 (6th Cir. 2011): No “magic words” requirement; if the sentencing rationale is “logically responsive” to the argument, explicit incantation is unnecessary. Key support for rejecting Slaughter’s insistence on an express variance‑specific discussion where the same reasoning appeared in the departure discussion.
• United States v. Gale, 468 F.3d 929, 941 (6th Cir. 2006): District courts need not list all documents or evidence considered. The panel used Gale to reject the contention that failure to cite PSR ¶ 50 renders the explanation inadequate.
• United States v. Sanders, No. 22-4051, 2024 WL 21573 (6th Cir. Jan. 2, 2024): Two uses. First, preservation can be adequate even without granular phrasing (reference to “mitigating factors” may suffice). Second, courts need not give reasons for rejecting every single mitigation argument; enough explanation to show reasoned decision-making is sufficient.
• United States v. Thomas, No. 22-2147, 2023 WL 8450683 (6th Cir. Dec. 6, 2023): (1) Highlights forfeiture where an argument is not re‑raised at sentencing; used by contrast to show Slaughter did re‑raise. (2) Warns of double credit risk if courts reduce for time served and BOP also credits under § 3585(b). The panel uses this to validate the district court’s caution.
• United States v. Sylvester, 289 F. App’x 860, 867 (6th Cir. 2008): No obligation to consider time served as a mitigating factor; a judge does not err by leaving crediting to BOP. This undergirds the conclusion that refusing to vary downward for time served is not procedurally unreasonable.
• United States v. Zabel, 35 F.4th 493, 504–05 (6th Cir. 2022): Confirms that courts need not engage in “ritualistic incantation” of § 3553(a); they must explain enough to show they considered the parties’ arguments and exercised reasoned judgment. Used to uphold the adequacy of the district court’s explanation.
• Parker v. Winwood, 938 F.3d 833, 839 (6th Cir. 2019): Courts are not advocates and need not “scour the record” for facts to support a party’s argument. This counters the claim that the judge should have independently mined PSR ¶ 50 when defense counsel could not supply specifics.
• United States v. Light, 674 F. App’x 548, 550 (6th Cir. 2017): The defendant is best positioned to know the facts; again, reinforcing that the burden was on the defense to substantiate time‑served details at sentencing.
• McPherson v. Suburban Ann Arbor, LLC, 135 F.4th 419, 425–26 (6th Cir. 2025): Failure to raise an issue in the opening brief means it is not considered on appeal. Applied to deem any separate challenge to the denied departure abandoned.

Legal Reasoning

1. Preservation and Standard of Review: The panel first decided that Slaughter preserved his procedural reasonableness challenge. Although he blurred departure and variance arguments, he asked for an “adjust[ment]” under § 3553(a), debated the issue with the judge, and—after the Bostic inquiry—explicitly said he was not satisfied and re‑raised the time‑served point. Under Taylor and Bostic, that sufficed. Thus, abuse-of-discretion, not plain-error, review applied.
2. Adequacy of Consideration and Explanation: The court looked for two things under Gapinski: did the judge consider the time‑served argument, and did she explain her basis for rejecting it? The transcript showed a detailed colloquy about:
   • Risk of double credit if the court reduced the sentence and the BOP later also credited the same time under § 3585(b), and
   • A lack of “sufficient” clarity in the record about which charges the state custody pertained to and for how long.
   These reasons were logically responsive to the mitigation request. Relying on Chiolo, the panel underscored that the judge was not required to utter “magic words” or separately label the rationale as applied to a variance if the reasoning already addressed the argument when denying a departure.
3. No Duty to Cite the PSR Paragraph: The defendant argued the court failed to address PSR ¶ 50, which chronicled custody dates. The panel rejected the premise under Gale and Sanders: judges need not list every piece of evidence or recite every argument they reject. Moreover, when the judge asked counsel to specify the relevant custody facts, counsel could not, and did not direct the court to ¶ 50. Because defendants are best positioned to supply the facts (Light) and courts are not advocates who scour the record (Parker), the absence of an express ¶ 50 reference did not render the explanation procedurally deficient.
4. Discretion to Leave Credit to BOP and to Avoid Double Counting: The panel reaffirmed that district courts are not obligated to reduce a sentence to account for time served—especially where the BOP is responsible for calculating credit under § 3585(b) and there is a real risk of double counting (Thomas; Sylvester). The district court properly exercised caution on both grounds.
5. § 3553(a) Discussion Was Sufficient: Finally, the panel rejected a broader claim that the judge insufficiently engaged § 3553(a)(2)(A)–(B). Citing Zabel, the court reiterated that no ritualistic incantation is required; the explanation showed consideration of the factors and the parties’ arguments, and thus was procedurally reasonable.

Impact and Practical Implications

Although unpublished and thus nonbinding, this decision provides concrete guidance for sentencing practice in the Sixth Circuit:

• Time‑Served Arguments Require Specifics: Defense counsel seeking a variance or departure based on prior custody should present precise, documented chronologies tying custody segments to specific charges. Vague references to “a year” in jail, without granular linkage or documentary support, invite rejection.
• Variance vs. Departure: Conflating the two is risky. But Slaughter shows that if a single explanation logically addresses the mitigation argument, an appellate court may deem the district court’s reasoning sufficient even if couched in “departure” terms. Still, practitioners should articulate separately:
  • Departure theories (e.g., U.S.S.G. §§ 5G1.3 and 5K2.23 for undischarged/discharged terms; § 4A1.3(b) for over‑represented criminal history), and
  • Variance theories under § 3553(a), including how any reduction avoids double credit and achieves a just punishment.
• Avoiding Double Counting Is a Valid Reason: Where BOP may later award credit under § 3585(b), judges act within their discretion to deny a time‑served variance to prevent double credit. If defense counsel can establish that BOP will not credit the time (e.g., because it was credited to another sentence), that should be clearly explained and supported.
• No “Magic Words” or PSR Checklists Required: The adequacy of explanation is functional, not formalistic. A sentencing judge need not cite PSR paragraphs or enumerate all documents, provided the record shows consideration and a reasoned basis for the decision.
• Preservation Under Bostic: Counsel should answer the Bostic question with specificity. Slaughter confirms that re‑raising the pertinent issue—even if imprecisely framed—can preserve abuse-of-discretion review. Silence risks plain-error review or forfeiture.
• Abandonment on Appeal: Arguments not developed in the opening brief are forfeited. Here, failure to develop a separate challenge to the denied departure foreclosed appellate review of that issue (McPherson).

Complex Concepts Simplified

• Procedural vs. Substantive Reasonableness:
  • Procedural reasonableness concerns the process—did the court correctly calculate the Guidelines, consider § 3553(a), rely on accurate facts, and adequately explain the sentence?
  • Substantive reasonableness asks whether the sentence length is reasonable in light of the § 3553(a) factors. Slaughter involved only a procedural challenge.
• Variance vs. Departure:
  • Departure: A Guidelines-based adjustment authorized by the Sentencing Commission (e.g., § 5K2.23 for discharged terms; § 5G1.3 for undischarged terms; § 4A1.3(b) for over‑represented criminal history).
  • Variance: A non-Guidelines adjustment based on the statutory § 3553(a) factors to impose a sentence that is sufficient but not greater than necessary.
• Credit for Time Served (18 U.S.C. § 3585(b)):
  • Who decides? The Bureau of Prisons, not the sentencing judge, calculates credit for prior custody that has not been credited against another sentence.
  • Why the caution? If a judge reduces a sentence for time served and the BOP also credits the same time, the defendant may receive double credit—an error courts seek to avoid.
• “Magic Words” and PSR Citations:
  • Courts must explain enough to show they considered the parties’ arguments and exercised reasoned judgment. They do not have to recite every argument or cite every PSR paragraph, so long as their rationale addresses the substance of the point.
• Bostic Preservation:
  • At the end of sentencing, the court asks for any remaining objections. To preserve an issue for appeal, counsel should clearly state the objection and its basis. Vague dissatisfaction may be enough in some contexts, but specificity is safer.

Conclusion

United States v. Slaughter reaffirms fundamental sentencing principles in the Sixth Circuit: district courts need not use “magic words” or catalog every PSR detail to satisfy procedural reasonableness; it is sufficient that the record shows consideration of the mitigation argument and a coherent reason for rejecting it. The opinion further clarifies that judges act within their discretion when they decline to vary downward for time served to avoid potential double credit and when the record lacks clear, specific evidence about what time is attributable to what charge.

For practitioners, Slaughter offers practical guidance: document and pinpoint any time‑served claim; be precise about whether you are seeking a departure, a variance, or both; ensure the record dispels double‑credit risks; and preserve objections clearly in response to the Bostic inquiry. For sentencing courts, the case validates concise, logically responsive explanations and underscores the propriety of leaving prior custody credits to the Bureau of Prisons.