NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0347n.06
No. 20-1984
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jul 16, 2021
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JONATHAN WILSON, ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendant-Appellant. )
)
BEFORE: BOGGS, CLAY, and KETHLEDGE, Circuit Judges
BOGGS, Circuit Judge. Jonathan Wilson pleaded guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). The District Court for the Western District of
Michigan sentenced him to 51 months of imprisonment, which was approximately 25% higher
than the upper bound of his recommended Guidelines range. Wilson appeals his sentence and
argues it was substantively unreasonable. He claims the district court failed to properly consider
all the relevant sentencing factors and gave unreasonable weight to some factors. Specifically, he
argues that the allegedly brief nature of his possession coupled with the lack of previous
convictions for violent crimes warranted a lower sentence. Because the court’s decision to vary
upwards was not an abuse of discretion, we affirm.
I
Wilson was arrested at a house in Holland, Michigan, because he had seven outstanding
warrants and was absconding from parole. After the police received permission from the
No. 20-1984, United States v. Wilson
homeowner to search for him, officers found him in the basement, sleeping on a mattress in a
makeshift bedroom. Within his reach, there was an unloaded, stolen .22-caliber firearm and a
magazine. The officers also found an electronic scale with white residue, multiple cell phones, a
pipe for smoking methamphetamine, and other drug paraphernalia.
Wilson’s DNA was found on the handgun and magazine. The homeowner and the other
resident—Wilson’s girlfriend—told the police that they did not own the firearm.1 The homeowner
also told the police that Wilson was a member of the Latin Kings street gang, which was
corroborated by evidence recovered on Wilson’s phone. Wilson did not answer questions at the
time of his arrest, but he later submitted a statement claiming that he merely moved the gun from
the bed to the nearby table.
After the grand jury indicted Wilson for possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1), he pleaded guilty. Wilson had six prior felony convictions and knew he
was prohibited from possessing firearms.
For sentencing, Wilson and the government agreed that the proper Guidelines range was
33 to 41 months. The range was based on a total offense level of 13—which resulted from a base
offense level of 14 and adjustments—and a criminal-history category of VI. The government
requested a 41-month sentence—the top of the Guidelines range—and Wilson requested a within-
Guidelines sentence.
At the sentencing hearing, the court engaged in a colloquy with Wilson. Wilson
acknowledged that he was absconding from parole and that there were warrants out for his arrest.
He admitted to the court that he knew that he could be convicted for firearm possession, even
1
Text messages between the two residents stated “Police are here” and “They found the gun,” which suggest
that they were aware there was a firearm in the home.
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though it was not his house, and he had no knowledge of the gun until he moved it from the
mattress to the table. The court asked Wilson about his significant criminal history, and he
explained that some of the offenses were for not paying child support while he was incarcerated,
resisting arrest, attempted delivery of marijuana, possession of cocaine, and fleeing and eluding
authorities.
The court articulated its “duty to impose a sentence sufficient but not greater than necessary
to comply with the purposes of sentencing set forth in 18 U.S. Code 3553(a).” It then
acknowledged that it was taking the Guidelines into account but that they are advisory and that it
“must make an individualized assessment based on the facts presented.” After listing the
applicable § 3553(a) factors and recommending substance-abuse treatment and vocational training
options for Wilson’s incarceration, the court turned to the specific factors it found relevant for his
sentence.
The court discussed Wilson’s extensive criminal history. Over 15 years, he had been
convicted of six felonies and accumulated 23 criminal-history points—which the court observed
was “one of the highest criminal history scores that [the] Court has seen in its 13-plus years on the
federal bench.” It mentioned that Wilson’s criminal-history category did not capture the full scope
of his criminal history because there are no higher categories for more than 13 criminal-history
points.
The court also noted that it viewed “Mr. Wilson as a danger to the public.” It continued
that “[h]e just never seems to get it,” and that he performs poorly when supervised in the state
system. Because “[n]othing the state courts have done have deterred Mr. Wilson,” it judged the
“specific deterrence of Mr. Wilson to be a very significant factor . . . .” The court also highlighted
the need for general deterrence, stating that “felons who possess firearms” are “a problem in the
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United States, [and] certainly a problem in the Western District of Michigan.” As for the
sentencing goal of promoting respect for the law, the court stated:
Mr. Wilson . . . has been disregarding the law for quite some time. He has shown
no indication that he is going to respect the law or can conform his conduct to the
requirements of the law, and I don’t think a guideline sentence, in addition to
everything else that I’ve said, provides just punishment for Mr. Wilson’s offense
here before the Court involving the unlawful possession of a firearm.
Because it could not move to the right on the sentencing chart to account for a higher
criminal-history category and the other aggravating factors, the court looked to an increased
offense level. It found that a more appropriate range would have been a two-level increase to the
offense level, leading to a range of 41 to 51 months. It then imposed a 51-month sentence.
II
Wilson argues that his sentence is substantively unreasonable. We have jurisdiction to
review his sentence pursuant to 28 U.S.C. § 1291, and we review it for reasonableness “under an
abuse-of-discretion standard.” United States v. Milliron, 984 F.3d 1188, 1195 (6th Cir. 2021).
Wilson does not challenge the procedural reasonableness of his sentence; therefore, we need not
address it. See United States v. Tristan-Madrigal, 601 F.3d 629, 632 (6th Cir. 2010); United States
v. Walls, 546 F.3d 728, 736 (6th Cir. 2008).2
2
We note that “[t]he border between procedural and substantive reasonableness can be blurry, and the analysis often
overlaps.” United States v. Small, 988 F.3d 241, 258 (6th Cir. 2021). Wilson relies on United States v. Conatser,
514 F.3d 508, 520 (6th Cir. 2008), for the proposition that a sentence is “substantively unreasonable” if “the district
court . . . fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent
factor.” See Appellant Br. at 7–9. Yet we have also held that the “point [of substantive unreasonableness] is not that
the district court failed to consider a factor or considered an inappropriate factor; that’s the job of procedural
unreasonableness.” Milliron, 984 F.3d at 1196 (alteration in original) (quoting United States v. Rayyan, 885 F.3d 436,
442 (6th Cir. 2018)). Because Wilson does not argue his sentence is procedurally unreasonable on appeal, we need
not resolve the ambiguity today. Wilson’s argument is better stated as: “the district court failed to give proper
consideration to the circumstances of the offense to which Jonathan Wilson pleaded guilty and the nature of his
criminal history.” Appellant Br. at 9 (emphasis added). Yet to any extent he did raise a procedural challenge, it fails
for the same reason discussed below—the court did consider the relevant sentencing factors.
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A defendant’s “claim that a sentence is substantively unreasonable is a claim that a sentence
is too long.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). A sentence is too long
if it is “‘greater than necessary’ to achieve the purposes of sentencing.” Milliron, 984 F.3d at 1195
(quoting Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020)); see also 18 U.S.C.
§ 3553(a). A substantive-unreasonableness complaint is one that argues “that the court placed 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. One relevant factor is “the nature and circumstances of the offense and
the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Accordingly, a court
may consider the defendant’s criminal history when imposing a sentence, even if it is already
reflected in the advisory Guidelines range. United States v. Lee, 974 F.3d 670, 677 (6th Cir. 2020).
Other relevant factors include “the need for the sentence imposed . . . (A) to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to
afford adequate deterrence to criminal conduct; [and] (C) to protect the public from further crimes
of the defendant . . . .” 18 U.S.C. § 3553(a)(2).
How a district court chooses to weigh the § 3553(a) factors “is a matter of reasoned
discretion, not math.” Rayyan, 885 F.3d at 442. If a sentencing court finds a case falls “outside
the heartland” or “mine-run” of similar cases covered by the Guidelines, it is within its discretion
to vary from the advisory range. Milliron, 984 F.3d at 1198 (quoting Kimbrough v. United States,
552 U.S. 85, 109 (2007)). The fact that a court imposes an above-Guidelines sentence does not
make that sentence presumptively unreasonable. Ibid. “[A]n upward variance is permitted when
the district court adequately addresses the § 3553(a) sentencing factors, provides a detailed
rationale for the variance, and imposes a sentence that is otherwise substantively reasonable.”
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United States v. Small, 988 F.3d 241, 260 (6th Cir. 2021) (quoting United States v. Lopez, 813 F.
App’x 200, 205 (6th Cir. 2020)).
In our review, we may consider a sentence’s degree of variance from the recommended
Guidelines range, but there is no requirement that a deviation from the recommended range be
justified by extraordinary circumstances. Gall v. United States, 552 U.S. 38, 47 (2007). “The fact
that the appellate court might reasonably have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.” Id. at 51.
Wilson claims that the district court abused its discretion by failing to consider all relevant
sentencing factors and giving unreasonable weight to some factors. Specifically, he argues that it
(1) failed to consider the nature and circumstances of his offense, (2) focused on the quantity, not
quality, of his criminal history, and (3) imposed a sentence that was greater than necessary to
advance the statutory sentencing factors.
First, Wilson argues that the district court did not consider the nature of his offense and his
argument that his possession of the firearm was fleeting. But simply because the court highlighted
the general nature of possession of firearms by felons and Wilson’s background without expressly
mentioning the specific circumstances of his offense does not mean it did not consider a relevant
sentencing factor. A district court must consider “the nature and circumstances of the offense and
the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). And while the
“circumstances of the offense” are part of § 3553(a)(1), there is no requirement that a court recite
and address every word of each factor explicitly.
The court heard from Wilson and his attorney about the allegedly brief nature of his
possession. Yet in its explanation of its rationale, the court emphasized Wilson’s personal
characteristics. It stated that “Mr. Wilson [is] a danger to the public. He just never seems to get
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it. He’s done poorly when supervised in the state system. . . . He needs to be deterred. Nothing
that state courts have done have deterred Mr. Wilson.” Then the court described the general
problem of felons possessing firearms, stating that it “is a problem in the United States, [and]
certainly a problem in the Western District of Michigan.” Wilson may disagree with the aspects
of § 3553(a)(1) that the district court found important, but the decision to weigh those sentencing
factors as it did was within its discretion. If a court finds the general nature of an offense and a
defendant’s personal background more significant than the specific circumstances of that offense,
it does not mean that the resulting sentence is substantively (or procedurally) unreasonable.
Second, Wilson argues that the court only considered the quantity, not quality, of his
criminal history. This argument is contradicted by the record. The court did discuss the extent of
Wilson’s record; it observed that he had six felony convictions by the age of thirty-two, and that
over a period of 15 years he had accumulated 23 criminal-history points, which was “one of the
highest criminal history scores that [the] Court has seen in its 13-plus years on the federal bench.”
It also discussed the nature of those offenses. The court heard from Wilson about how he was
absconding from parole when he was arrested and how some of his criminal-history points were
from failures to pay child support, resisting arrest, attempted delivery of marijuana, possession of
cocaine, and fleeing and eluding authorities. The quality and seriousness of these offenses
informed the court’s conclusion that Wilson “has been disregarding the law for quite some time
[and] has shown no indication that he is going to respect the law or can conform his conduct to the
requirements of the law.”
Wilson points to his lack of convictions for violent offenses, but that is not the only relevant
aspect of his extensive criminal history. His record also includes theft, threats, failures to appear
to hearings, multiple bench warrants, several probation revocations, and the commission of
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additional offenses while on parole. These offenses occurred without a significant pause over a
period of 15 years. The court considered “specific deterrence of Mr. Wilson to be a very significant
factor for the Court to consider.” It was within its discretion to place significant weight on Wilson’s
consistent history of disregarding the law and performing poorly under supervision when it decided
his sentence.
To support his contention that the district court placed too much weight on his criminal
history, Wilson cites United States v. Lee, 974 F.3d 670 (6th Cir. 2020). In Lee, we found that a
60-month sentence imposed for an offense with a recommended Guidelines range of 30 to 37
months (approximately 60% higher than the upper bound) was substantively unreasonable because
the district court placed too much weight on the defendant’s criminal history. Id. at 673, 682. That
upward variance was largely based on one of Lee’s convictions from 15 years earlier and related
parole violations. Id. at 675, 677. We criticized this upward variance based on his criminal history
because “nothing uniquely problematic about the defendant’s criminal history demonstrates a
specific need for deterrence beyond that already captured in the guidelines range.” Id. at 673.
Unlike Lee, Wilson had six felony convictions during the ten years preceding his arrest for
the present offense. He also had 23 criminal-history points, which are ten more than necessary to
put him in the highest possible criminal-history category. As the district court observed, Wilson’s
criminal history was uniquely problematic—notably the worst the court had seen—and Wilson
had performed poorly under state supervision and demonstrated a disregard for the law. And
Wilson’s history was not already captured in the Guidelines range because the highest criminal-
history category does not increase the recommended range for anything above 13 criminal-history
points. These differences coupled with the smaller upward variance imposed on Wilson make the
situations factually distinct.
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Third, Wilson argues that his sentence was longer than necessary to advance the statutory
sentencing factors. He does not cite any authority in support of that proposition, but relies on the
fact that the sentence imposed was higher than both his Guidelines range and the government’s
requested sentence. But the Guidelines are advisory, and there is no presumption of
unreasonableness for above-Guidelines sentences. See Milliron, 984 F.3d at 1198. And, due to
his criminal history and other aggravating factors, Wilson’s situation falls outside the heartland of
similar cases. The district court considered the statutory objectives including the promotion of
respect for the law and need for just punishment, specific and general deterrence, and the protection
of the public. It was within its discretion to conclude a 51-month sentence was “sufficient, but not
greater than necessary.” 18 U.S.C. § 3553(a).
III
Wilson’s sentence is not substantively unreasonable, and the district court did not abuse its
sentencing discretion. We AFFIRM.
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