NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0451n.06
No. 19-4001
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Aug 03, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
ROGER PATRICK, ) NORTHERN DISTRICT OF
) OHIO
Defendant-Appellant. )
)
BEFORE: GIBBONS, GRIFFIN, and THAPAR, Circuit Judges.
GRIFFIN, Circuit Judge:
After defendant Roger Patrick pleaded guilty to a federal gun charge, the district court
imposed an above-guidelines sentence of 36 months of imprisonment. Patrick challenges the
procedural and substantive reasonableness of his sentence. Finding no error in the district court’s
decision to vary upward, we affirm.
I.
In November 2018, Patrick sent a text message to the mother of his child, asking to see the
child. When she did not reply quickly enough, Patrick drove to her residence and began yelling
and banging on the door and windows. The woman called the police from inside, but by the time
officers arrived, Patrick had left in his car. Before long, Patrick returned, and when the officers
approached him, he immediately put his hands outside of the vehicle and informed them he had a
No. 19-4001, United States v. Patrick
gun under his seat. The officers searched the car, found a pistol loaded with ammunition, and
arrested Patrick.
A federal grand jury indicted Patrick for being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty without a plea agreement.
The United States Probation Office conducted a presentence investigation and prepared a report
(“PSR”) listing Patrick’s offense level as 12 and his criminal history category as IV. This resulted
in a range under the Sentencing Guidelines of 21 to 27 months. At sentencing, the district court
varied upwards from the guidelines range and sentenced Patrick to 36 months of incarceration
followed by 3 years of supervised release. Patrick timely appealed.
II.
We review the procedural and substantive reasonableness of a sentence for abuse of
discretion. United States v. Collins, 828 F.3d 386, 388 (6th Cir. 2016).
A.
With respect to procedural reasonableness, a district court necessarily abuses its sentencing
discretion if it fails to “properly calculate the guidelines range, treat that range as advisory,
consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible
factors, select the sentence based on facts that are not clearly erroneous, [or] adequately explain
why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). When
imposing a sentence, a district court does not need to recite the § 3553(a) factors; it merely needs
to provide enough of an explanation to show that it has considered the parties’ arguments and has
a reasoned basis for exercising its authority. United States v. Jeross, 521 F.3d 562, 583 (6th Cir.
2008).
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The § 3553(a) factors include “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). At the sentencing hearing, the district court discussed this factor and referred to data
compiled by the United States Sentencing Commission “comparing offenses in each of the six
criminal history categories.” The court noted that for fiscal year 2017, “[t]he average sentence
nationally for the offenses involving 2K2.1 with a criminal history category IV is 54 months.” The
district court reiterated that statistic before imposing Patrick’s sentence:
So for all those reasons, pursuant to the Sentencing Reform Act of 1984 and 18
United States Code 3553(a), I will vary upward from the 27 months. Again, the
[average] sentence nationally is 54 months. I don’t believe that high is warranted.
But certainly 27 months is not sufficient. And for those reasons I will impose 36
months custody in the Bureau of Prisons.
Patrick argues that the district court erred by anchoring its sentencing decision to the
national average for all USSG § 2K2.1 defendants, regardless of their offense level.1 Patrick’s
base offense level was 14, which is on the low end for 18 U.S.C. § 922(g)(1) convictions. And a
two-level reduction for acceptance of responsibility brought his total offense level down to 12.
See USSG § 3E1.1(a). Patrick argues that the district court thus compared him to dissimilar
defendants who engaged in more serious conduct. According to Patrick, “[a] more appropriate
comparison would have been the average sentence for § 2K2.1 offenses with a base level offense
of 12, with a criminal history category of IV.”
1
The government argues that we should review this claim only for plain error because
Patrick failed to raise it in the district court. At the end of the sentencing hearing, Patrick’s counsel
objected to the sentence imposed and “ask[ed] the Court to reconsider and impose a sentence
within the guidelines for reasons previously stated.” According to the government, this objection
was too vague to preserve for full appellate review the argument he makes now. We need not
resolve this question, however, because Patrick’s claim fails regardless of whether plain-error
review applies.
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The problem with Patrick’s argument is that the text of § 3553(a)(6) focuses on comparing
the sentences of similarly situated defendants, not identically situated ones. Here, the district court
limited its comparison to defendants who, like Patrick, had a criminal history category of IV and
had committed offenses involving receipt, possession, or transportation of firearms or ammunition.
See USSG § 2K2.1. We have repeatedly approved of district courts using such national statistics
in assessing the need to avoid unwarranted sentence disparities. See United States v. Boucher, 937
F.3d 702, 713 (6th Cir. 2019); United States v. Stock, 685 F.3d 621, 629 n.6 (6th Cir. 2012); see
also United States v. Clemmons, 757 F. App’x 413, 418–19 (6th Cir. 2018). Accordingly, the
district court did not abuse its discretion by relying on this data in considering the § 3553(a)(6)
factor.
B.
Patrick also challenges the substantive reasonableness of his sentence. An above-
Guidelines sentence is neither presumptively reasonable nor presumptively unreasonable. United
States v. Robinson, 813 F.3d 251, 264 (6th Cir. 2016). We review it for abuse of discretion,
“whether . . . just outside, or significantly outside the Guidelines range.” United States v.
Cunningham, 669 F.3d 723, 728 (6th Cir. 2012) (citation omitted). But “a major departure should
be supported by a more significant justification than a minor one.” Gall v. United States, 552 U.S.
38, 50 (2007). We consider a sentence to be substantively unreasonable where the district court
“place[s] too much weight on some of the § 3553(a) factors and too little on others in sentencing
the individual.” Rayyan, 885 F.3d at 442. It is in essence a claim that a sentence is “too long (if a
defendant appeals) or too short (if the government appeals).” Id. Our review “will, of course, take
into account the totality of the circumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U.S. at 51. But we “must give due deference to the district court’s
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decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.; see United
States v. Johnson, 934 F.3d 498, 502 (6th Cir. 2019) (“Reasoned judgments about the appropriate
length of a sentence are largely for trial courts, not appellate courts.”).
Here, Patrick argues that the district court “gave nearly no consideration to its charge to
issue a sentence not greater than necessary to fulfill its the [sic] purposes of § 3553(a)(2), and to
promote respect for the law.” The record belies this assertion. At sentencing, the district court
voiced its concern that “this is the defendant’s fifth felony conviction, his fourth involving a
firearm. It doesn’t appear that any punishment has been sufficient to deter the defendant from
criminal activity, more specifically activity involving firearms.” The court also highlighted the
seriousness of Patrick’s prior conviction for robbery with a firearm, and that he was on parole at
the time of his arrest in the instant matter. From these facts, the district court concluded that Patrick
“[i]s a danger to the community” and that “the Court does not believe that 27 months is sufficient
but not greater than necessary to impress upon the defendant that he cannot possess firearms.” The
court also specifically noted that the 54-month average from the statistical data was not warranted
here before stating that “36 months is sufficient but not greater than necessary.” Thus, the
sentencing transcript shows that the district court carefully considered the factors listed in
§ 3553(a)(2).
Patrick also claims that the district court “did not give sufficient weight to [his] actions of
cooperation and honesty” at sentencing. Again, the record shows that the district court carefully
considered those facts. At the hearing, the court remarked that “[i]t does appear, to [Patrick’s]
credit, he was honest with law enforcement when stopped with the gun. So that is to his credit.”
The district court made clear, however, that Patrick’s previous convictions and firearm use
nevertheless necessitated a higher sentence than the guidelines range provided. We find no abuse
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No. 19-4001, United States v. Patrick
of discretion in that conclusion. See Johnson, 934 F.3d at 499–500, 502 (affirming an upward
variance to the statutory maximum where the defendant “had repeatedly violated the gun-
possession laws and showed no signs of changing his ways”).
III.
For these reasons, we affirm the district court’s judgment.
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