United States v. Jonathan Wilson

                        NOT RECOMMENDED FOR PUBLICATION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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No. 20-1984, United States v. Wilson


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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No. 20-1984, United States v. Wilson


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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No. 20-1984, United States v. Wilson


       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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No. 20-1984, United States v. Wilson


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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No. 20-1984, United States v. Wilson


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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No. 20-1984, United States v. Wilson


       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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