Upward Variances May Rest on Premeditation Inferences and Victim Psychological Harm (Without § 5K2.3 Departure Procedures)

Introduction

In United States v. Kendrick Holland (6th Cir. Jan. 8, 2026), the Sixth Circuit affirmed a six-month upward variance imposed after the defendant pled guilty to robbing a U.S. postal worker in violation of 18 U.S.C. § 2114(a). The government dismissed a related firearm count (18 U.S.C. § 924(c)(1)(A)(ii)) as part of cooperation, eliminating a mandatory consecutive seven-year exposure.

The sentencing dispute centered on whether the district court relied on impermissible considerations when it varied above the Guidelines range: (1) drawing an inference of premeditation from a fast-food receipt, and (2) crediting a victim’s testimony about severe psychological effects and his statement that he would feel “in prison” until retirement (eight years). Because Holland did not object after the district court asked for objections, the appeal was reviewed under the stringent plain-error standard.

Summary of the Opinion

The Sixth Circuit affirmed. It held that the district court did not plainly err in finding the robbery was premeditated—an inference supported not only by the fast-food receipt but also by Holland’s own admissions (including that he traveled over 100 miles “just to do the robbery” and knew firearms would be involved). It also held the district court permissibly considered the victim’s psychological injuries and could reference the victim’s retirement horizon while conducting the 18 U.S.C. § 3553(a) analysis—especially given that the sentence imposed was 84 months, not the requested 96 months.

Analysis

Precedents Cited

1) Preservation, the “Bostic question,” and plain-error review

United States v. Bostic, 371 F.3d 865 (6th Cir. 2004)
The court invoked Bostic for the rule that when the district court asks the parties whether they have objections to the sentence and a party fails to object, appellate review is for plain error. Here, the district judge explicitly asked for objections; Holland raised none. That failure largely determined the outcome because it elevated the appellate burden.
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc)
Vonner supplied the governing plain-error framework: Holland had to show an error that was “obvious or clear,” affected substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. The panel repeatedly returned to this demanding standard, emphasizing that Holland did not identify a clear legal misstep.

2) Factfinding at sentencing and evidentiary sufficiency

United States v. Gates, 461 F.3d 703 (6th Cir. 2006)
The opinion cited Gates for the proposition that sentencing factfinding uses the preponderance standard. This mattered because Holland attacked the “fast-food receipt” as “inadequately proved evidence,” yet he did not dispute what the receipt showed (that he ate with codefendants shortly before the robbery) and did not dispute premeditation more generally.

3) What counts as procedural vs. substantive error

United States v. Conaster, 514 F.3d 508 (6th Cir. 2008)
Holland characterized his victim-impact argument as a substantive-reasonableness challenge and cited Conaster. The panel used this posture mainly as a springboard to re-classify the issue as procedural when it concerns use of an impermissible factor.
United States v. Parrish, 915 F.3d 1043 (6th Cir. 2019)
Parrish supplied the key clarification: “consideration of an impermissible factor” is typically a procedural error. That doctrinal move kept the claim within the plain-error framework (because there was no objection), rather than a more forgiving abuse-of-discretion review that often accompanies preserved substantive challenges.

4) Victim harm as a permissible sentencing consideration

United States v. Zabel, 35 F.4th 493 (6th Cir. 2022)
Zabel supported the court’s conclusion that victim injuries—expressly including “profound impact”—may be weighed in applying § 3553(a). The panel also cited Zabel to show that courts may consider victim-injury information presented in sentencing materials (there, a government memorandum; here, testimony).
United States v. Vowell, 516 F.3d 503 (6th Cir. 2008)
Vowell reinforced that “serious psychological and emotional damage” to a victim is a legitimate factor in the sentencing calculus. This precedent undercut Holland’s attempt to label psychological consequences as “impermissible” or as requiring special guideline-departure procedures.

5) Variance vs. departure (and why § 5K2.3 procedures did not apply)

United States v. Denny, 653 F.3d 415 (6th Cir. 2011)
The court relied on Denny to distinguish a variance (a sentence outside the advisory range based on § 3553(a)) from a departure (a guideline-authorized adjustment within the Guidelines framework). Because the district court varied upward, it did not have to comply with any specific guideline-departure mechanism Holland invoked.

Legal Reasoning

A. The fast-food receipt and premeditation

Holland argued procedural unreasonableness on the theory that the court varied upward based on “inadequately proved evidence” (the receipt). The Sixth Circuit’s reasoning proceeded in layers:

No real dispute about the underlying facts. Holland did not contest that the receipt showed the group ate shortly before the robbery and did not argue the robbery was not premeditated. That made it difficult—especially under plain-error review—to characterize the inference as “obvious” error.
The receipt was not outcome-determinative. The panel emphasized other evidence supporting premeditation, including Holland’s admission that he traveled over 100 miles “just to do the robbery” and knew firearms would be involved. Even if the receipt inference were discounted, the record still supported the finding.
Sentencing factfinding threshold was satisfied. Citing United States v. Gates, the court reiterated that the preponderance standard governs, and the district court had “ample basis” to find planning.

B. Victim psychological injuries and the retirement timeline

Holland claimed the district court impermissibly considered (i) the victim’s psychological injuries and (ii) the victim’s retirement horizon as a kind of “poetic reciprocation.” The panel rejected both claims.

1) Psychological harm was a permissible § 3553(a) consideration

The opinion grounded permissibility in both victim-participation rights and sentencing discretion:

The court pointed to the Crime Victims’ Rights Act (18 U.S.C. § 3771(a)(4)) and the Federal Rules of Criminal Procedure (Fed. R. Crim. P. 60(a)(3); id. 32(i)(4)(B)) as requiring the sentencing court to permit victims to be heard. It also cited id. 32(d)(2)(B) as calling for “psychological” impacts to be recorded in the presentence report.
Under 18 U.S.C. § 3553(a)(1)-(2), a court must consider the nature and circumstances of the offense, deterrence, and protection of the public. The Sixth Circuit reiterated (with Zabel and Vowell) that victim psychological harm can bear directly on those statutory factors.

Holland attempted to re-route the analysis through the former departure provision U.S.S.G. § 5K2.3 (severe psychological injury), but the court treated that as a category error: the district court imposed a variance, not a departure. Therefore, the panel reasoned, § 5K2.3’s departure framework was “not relevant.” The court also noted that § 5K2.3 was “repealed Nov. 1, 2025,” underscoring why guideline-departure mechanics were a poor fit for a post-Booker, § 3553(a)-based variance analysis in any event.

2) Mentioning retirement did not convert sentencing into “reciprocity” punishment

The record showed that the government requested eight years partly because it “would roughly coincide” with the victim’s time to retirement; the district court acknowledged the victim’s statement that he expected to suffer consequences for “at least the eight years.” But the Sixth Circuit stressed:

The sentence imposed was 84 months, not 96 months. That mismatch weakened the claim that the court mechanically pegged prison time to the retirement date.
The district court’s explanation was anchored in § 3553(a). The court discussed seriousness (including firearms and proximity to elementary schools), deterrence, disparity with codefendants, and mitigating characteristics—i.e., individualized sentencing factors rather than symbolic symmetry.
It was permissible to consider requested sentences and long-term victim consequences. In the panel’s view, acknowledging the request and the victim’s anticipated duration of harm fit comfortably within assessing the offense’s real-world impact.

Impact

Although “NOT RECOMMENDED FOR PUBLICATION,” the decision is practically significant for Sixth Circuit sentencing litigation in three ways:

Preservation is outcome-determinative. By reinforcing United States v. Bostic and United States v. Vonner, the case serves as a cautionary template: failing to object after the “any objections?” inquiry will often make reversal exceptionally difficult, even where the defendant can articulate a plausible theory of sentencing error.
Victim psychological harm remains central to § 3553(a) variances. The opinion strengthens the line of cases (including United States v. Zabel and United States v. Vowell) treating emotional and psychological effects as legitimate considerations in evaluating seriousness, deterrence, and public protection—without having to shoehorn the analysis into guideline-departure doctrines.
Post-repeal sentencing arguments must be framed carefully. By noting that U.S.S.G. § 5K2.3 was “repealed Nov. 1, 2025,” the decision signals that litigants should not assume former departure provisions provide the governing analytical checklist for variances. The operative question will usually be whether the factor is relevant to § 3553(a) and supported by reliable evidence.

Complex Concepts Simplified

Plain error: A highly deferential appellate standard applied when an issue was not properly preserved. The appellant must show (1) error, (2) that is clear or obvious, (3) affecting substantial rights (usually outcome), and (4) seriously affecting the fairness or integrity of proceedings.
Procedural vs. substantive reasonableness: Procedural reasonableness concerns how the sentence was imposed (correct Guidelines calculation, use of permissible factors, adequate explanation). Substantive reasonableness concerns how much time was imposed and whether it is justified in light of § 3553(a). The opinion (via United States v. Parrish) treats reliance on an impermissible factor as a procedural issue.
Variance vs. departure: A departure is an adjustment authorized by the Guidelines’ own rules; a variance is a sentence outside the advisory range based on the broader statutory factors in 18 U.S.C. § 3553(a). Under United States v. Denny, the distinction matters because guideline-departure prerequisites do not govern § 3553(a) variances.
Preponderance of the evidence at sentencing: Many sentencing facts need only be more likely true than not (rather than proved beyond a reasonable doubt). The opinion cites United States v. Gates for this standard.
Victim impact statements: Federal law gives victims the right to be heard at sentencing (e.g., 18 U.S.C. § 3771(a)(4); Fed. R. Crim. P. 32(i)(4)(B)). Courts may consider the victim’s physical, emotional, and psychological harms when evaluating § 3553(a) factors.

Conclusion

United States v. Kendrick Holland affirms that, under plain-error review, an upward variance will stand where the district court’s reasoning is plausibly tied to § 3553(a), supported by reliable record evidence, and not driven by a clearly impermissible consideration. The decision underscores two practical rules: (1) sentencing objections must be preserved after the Bostic inquiry, and (2) victim psychological harm—and even discussion of the anticipated duration of that harm—can be weighed in a § 3553(a) variance analysis without invoking guideline-departure procedures (particularly in light of the repeal of U.S.S.G. § 5K2.3).