United States v. Autry: Strengthening Judicial Discretion to Depart Upward for Category VI Offenders under U.S.S.G. § 4A1.3

1. Introduction

The Sixth Circuit’s unpublished decision in United States v. Jason Wayne Autry, No. 24-5607 (Aug. 5 2025), affirms a 228-month sentence that exceeds the advisory guideline range originally calculated for a repeat felon in possession of firearms and ammunition. The ruling is important because it:

Re-emphasises that district courts retain broad discretion to depart upward under U.S.S.G. § 4A1.3(a), even when the defendant already sits in Criminal History Category VI;
Clarifies the difference between a Guidelines “departure” and a § 3553(a) “variance”—an issue that often confuses practitioners and sometimes appellate courts;
Illustrates how the Griffin factors and other precedent guide review of upward departures for substantive reasonableness.

Parties. The United States prosecuted Jason Wayne Autry, a convicted felon and self-admitted Aryan Nation “enforcer,” after he was found with multiple weapons and ammunition. The Western District of Tennessee imposed the disputed sentence; Autry appealed.

2. Summary of the Judgment

Autry pled guilty to three counts under 18 U.S.C. § 922(g)(1). Though the Presentence Investigation Report (PSR) placed him in Total Offense Level 30 / Criminal History Category VI (Guidelines range 168-210 months, capped at a 180-month ACCA minimum), the district judge:

Departed upward two offense levels under § 4A1.3(a)(1) because Autry’s extensive criminal history—even Category VI—“substantially under-represented” both the seriousness of his past and the likelihood of recidivism.
Reset the advisory range to 210-262 months and imposed 228 months (middle of that range).

The Sixth Circuit (Judges Clay, Bush, Bloomekatz) affirmed, holding that:

The district court departed (not varied) and properly invoked § 4A1.3;
Consideration of convictions already scored plus numerous un-scored incidents satisfied § 4A1.3(a)(2) and Griffin factors;
The two-level extent of departure and resulting 228-month sentence were substantively reasonable and not an abuse of discretion.

3. Analysis

3.1 Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007) – Baseline for procedural/substantive reasonableness review; reminded the panel that an abuse-of-discretion standard governs appellate scrutiny.
Koon v. United States, 518 U.S. 81 (1996) – Early articulation that sentencing departures deserve “substantial deference” because they embody traditional discretion.
Barber (6th Cir. 2000) – Key Sixth Circuit authority granting wide berth to § 4A1.3 departures; cited for the two-step inquiry: (1) valid basis, (2) reasonable extent.
Griffin (6th Cir. 2008) – Provided the enumerated factors (seriousness, recidivism likelihood, leniency history, etc.) used to evaluate upward departures.
Brown (6th Cir. 2004) – Held that courts need not “gridblock-by-gridblock” explain every intervening range so long as reasoning is clear.
Boucher, Herrera-Zuniga, Hardy, Lumbard, Potts – Collective Sixth Circuit lineage confirming that hefty departures or variances resting on criminal history (even Category VI) are approvable when adequately reasoned.

3.2 Legal Reasoning of the Court

Departure vs. Variance. The panel undertook a de novo classification exercise (Denny). Since the district judge explicitly cited § 4A1.3 and moved two offense levels, it was a “departure,” not a variance. That characterization triggers the specific § 4A1.3 framework rather than generic § 3553(a) variance analysis.
§ 4A1.3(a)(1) Threshold. The court accepted the district judge’s finding that Category VI—even the highest—still under-represented Autry’s history because:
- 16 prior sentences generated no points (too old or otherwise excluded);
- He had 22 convictions plus pending violent charges; and
- He re-offended swiftly while on supervision, signaling extreme recidivism risk.
Application of § 4A1.3(a)(2) “types of information.” The district court walked through all five sub-factors (A-E). Appellate review located no clear error—thus satisfying the “valid basis” prong.
Extent of Departure. Relying on Brown and Griffin, the panel held the two-level jump reasonable: the judge balanced aggravators (violent gang affiliation, Bobo murder involvement, pattern of leniency abuse) with mitigators (mental health, abuse history) and refrained from the Government’s requested four-level leap.
Substantive Reasonableness. Although the resulting sentence exceeded national ACCA averages by 22 months, the panel ruled that national stats are referential, not binding; a within-post-departure Guideline sentence carries a “non-presumptive but clarifying” reasonableness patina (Lumbard).

3.3 Impact on Future Litigation and Sentencing Practice

Reinforces Departures for Category VI. Defense counsel often argue that Category VI is, by definition, the Guidelines’ maximum capture of criminal history. Autry re-affirms that courts can still move upward when history is qualitatively worse than the numeric score.
Blended Reliance on Scored & Unscored Conduct. The Sixth Circuit explicitly approves counting both scored convictions and older or non-conviction conduct (sub-factor E) when determining whether the criminal past is under-represented.
Statistical Disparity Arguments Weakened. Sentencing-data charts alone will rarely override a record-based justification for a departure—especially when the court already acknowledged § 3553(a)(6).
Guidance on Explanation Duty. The opinion reiterates that a district court need not march through every intermediate offense level so long as it gives a coherent holistic rationale.
Continued Deference to District Courts. By embracing a deferential abuse-of-discretion standard, the ruling signals that the Sixth Circuit will seldom disturb well-reasoned upward departures.

4. Complex Concepts Simplified

Departure vs. Variance. Think of the Guidelines table as a ladder. A “departure” is the judge re-setting the defendant to a higher or lower rung because a specific Guideline provision (here § 4A1.3) tells her the original rung was misleading. A “variance” is the judge stepping off the ladder altogether, based solely on the broad statutory factors (§ 3553(a)).
Criminal History Category VI. The highest row on the Guidelines table, reserved for defendants who amass 13 or more criminal history points.
Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e) imposes a 15-year mandatory minimum when a felon in possession has three prior “violent felony” or serious drug convictions.
Griffin Factors. A Sixth-Circuit checklist to decide whether the history is so bad that an upward § 4A1.3 departure is warranted (seriousness, recidivism, similar conduct, prior leniency, deterrence, incapacitation needs).
Substantive Reasonableness. A sentence’s length must make sense in light of statutory purposes (deterrence, public safety, respect for law, rehabilitation). It is different from procedural reasonableness (i.e., did the judge follow correct steps?).

5. Conclusion

United States v. Autry fortifies the principle that even the Guidelines’ highest criminal-history category may fail to capture an offender’s true danger and recidivism risk. The Sixth Circuit’s approval of a two-level § 4A1.3 departure—despite Category VI placement and despite overlapping scored convictions—confirms that:

District judges may integrate both counted and uncounted misconduct in deciding departures;
Their extent-of-departure explanation need only be logical and adequately linked to the § 4A1.3 factors, not mechanically exhaustive;
Statistical disparity arguments will rarely prevail absent a showing of unwarranted, as opposed to simply numerical, disparity.

For prosecutors, the ruling is a roadmap for arguing upward departures in egregious recidivist cases. For defense counsel, it signals the necessity of a robust mitigation record and a clear challenge to the qualitative weight courts place on criminal history. Ultimately, Autry underscores the continued vitality of judicial discretion within, and sometimes above, the advisory guideline framework.