                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0189n.06

                                          No. 19-3358

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                               Apr 02, 2020
 UNITED STATES OF AMERICA,                           )
                                                                          DEBORAH S. HUNT, Clerk
                                                     )
        Plaintiff-Appellee,                          )
                                                     )
                                                           ON APPEAL FROM THE UNITED
 v.                                                  )
                                                           STATES DISTRICT COURT FOR
                                                     )
                                                           THE NORTHERN DISTRICT OF
 JAMEL WILLIAMS,                                     )
                                                           OHIO
                                                     )
        Defendant-Appellant.                         )


BEFORE:        SUHRHEINRICH, DONALD, and MURPHY, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Appellant Jamel Williams pleaded guilty to passing

$4,000 in U.S. currency in violation of 18 U.S.C. § 472. Based on this offense and his criminal

history, Williams faced a Sentencing Guideline range of 10 to 16 months in prison. The district

judge sentenced Williams to 36 months. In this direct appeal, Williams challenges the 36-month

sentence. He argues that the district judge erred by increasing his sentence based on criminal

charges that were pending against him or had already been dismissed at the time of sentencing.

He also contends that the sentence is longer than necessary to achieve the sentencing goals stated

in 18 U.S.C. § 3553. Because the 36-month sentence is both procedurally sound and substantively

reasonable, we affirm.

                                                I.

       This case arises from a counterfeiting scheme. Between November 27, 2015 and October

20, 2016, Williams made ten trips to Target stores in northwest Ohio and passed a total of $4,000
No. 19-3358, United States v. Williams


in counterfeit U.S. currency. In 2018, he was charged with “uttering counterfeit obligations” in

violation of 18 U.S.C. § 472. Williams pleaded guilty to all ten counts of the indictment. With a

“total offense level” of 8 and a “criminal history category” of IV, the Sentencing Guideline range

for Williams’s crime was 10 to 16 months.

       At sentencing, the district judge indicated that he was “contemplating a substantial upward

variance” from the 10- to 16-month Guideline range “based upon the defendant’s lengthy criminal

record, the nature of that record, along with the facts and circumstances of this case.” The district

judge also observed that, at the time of sentencing, Williams had “pending charges in cases in three

different courts.”

       Williams’s attorney opposed the upward variance. He argued that Williams’s criminal

record, while lengthy, consisted mostly of minor crimes punishable by less than six months in

prison, such as driving with a suspended license and possession of marijuana. He noted that the

charges pending against Williams arose from similar misdemeanors. In addition, he urged that

Williams struggled with poverty and homelessness at the time of the scheme and used the

counterfeit money to “basically get by.”

       The district judge refuted each of those arguments. He acknowledged that Williams’s

record contained minor crimes, but he also cited several more serious offenses, including three

domestic-violence convictions. He took note of Williams’s difficult personal circumstances, but

he ultimately gave more weight to Williams’s extensive criminal record, including the fact that

Williams faced pending charges in three different courts and had six outstanding arrest warrants.

The judge remarked that Williams’s criminal history depicted “an individual who over many years

has been unable to follow the law.” Finally, the judge observed that Williams’s counterfeiting




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scheme was especially culpable because it was carried out in ten separate incidents over the course

of eleven months.

       On that basis, the district judge sentenced Williams to 36 months in prison. In this direct

appeal, Williams challenges that sentence.

                                                 II.

                                                 A.

       Williams argues that the district judge erred procedurally by relying on criminal charges

that were pending against him or had already been dismissed at the time of sentencing. Because

Williams did not bring this alleged procedural defect to the district court’s attention, we review it

for plain error. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (“A party

who neglects to make an objection, even after being given ‘an opportunity’ to do so, forfeits the

argument and may obtain relief on appeal only if the error is ‘plain’ and ‘affects substantial

rights.’”) (citing Fed. R. Crim. P. 52(b)).

       In devising a sentence, a judge must “refrain from considering impermissible factors.”

United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). However, “[n]o limitation shall be

placed on the information concerning the background, character, and conduct of a person convicted

of an offense which a court of the United States may receive and consider for the purpose of

imposing an appropriate sentence.” 18 U.S.C. § 3661. Accordingly, the realm of “impermissible

factors” is limited. See United States v. Robinson, 898 F.2d 1111, 1115 (6th Cir. 1990) (noting

that a sentencing judge’s inquiry is “largely unlimited” but that “[s]entences imposed on the basis

of material misinformation . . . may violate due process”) (citations omitted).

       The district judge stated that Williams’s sentence should be increased based on criminal

charges that were pending against him at the time of sentencing or had already been dismissed.



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He first noted that Williams had “six pending cases in three different courts.” The pending charges

included “[d]riving under suspension, no driver’s license, possession of marijuana, criminal

mischief, and theft.” The district judge then referred to a section of the presentence report titled

“Other Criminal Conduct,” which listed five prior criminal cases against Williams in which the

charges were dismissed or the sentence was vacated. He noted that “most of those cases have been

dismissed[,] [b]ut the sheer number of them is interesting to say the least.”

       Because these pending and dismissed charges form a part of Williams’s “background” and

“conduct,” the district judge properly considered them in determining his sentence. See 18 U.S.C.

§ 3661. The district judge relied on these charges to show that Williams had “ongoing contact

with law enforcement.” Importantly, he did not assume that Williams was guilty of the charged

conduct.

       Moreover, the district judge did not use the pending and dismissed charges to increase

Williams’s “criminal history category” under the Sentencing Guidelines. As Williams correctly

notes, “[a] prior arrest record itself shall not be considered for purposes of an upward departure [in

a defendant’s criminal history category].” USSG § 4A1.3(a)(3). But that’s not what happened in

this case. Instead, the district judge properly considered Williams’s pending and dismissed charges

(which Williams equates with his “arrest record”) as a part of the basis for a variance from the

Sentencing Guideline range. See United States v. Tristan-Madrigal, 601 F.3d 629, 635 (6th Cir.

2010) (noting that although “the same facts and analyses can, at times, be used to justify both a

Guidelines departure and a variance,” the latter involves “a much broader range of discretionary

decisionmaking” than the former) (citations omitted).

       Accordingly, the district court did not err by considering Williams’s pending and dismissed

charges as a part of his background and characteristics.



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No. 19-3358, United States v. Williams


                                                B.

       Williams argues that his 36-month sentence is longer than necessary to achieve the goals

set forth in 18 U.S.C. § 3553(a). We review this alleged error for abuse of discretion. Rayyan,

885 F.3d at 442.

       A sentencing judge must consider the “circumstances of the offense” and the

“characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The sentence should “reflect the

seriousness of the offense,” “promote respect for the law,” “provide just punishment,” “afford

adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant”

and “provide the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner.” Id. § 3553(a)(2). In addition, the court needs

to account for the “kinds of sentences available,” the applicable Sentencing Guideline range, any

pertinent policy statement issued by the United States Sentencing Commission, and “the need to

avoid unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct.” Id. §§ 3553(a)(3)–(6).

       A claim that a sentence is substantively unreasonable is “a complaint 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. Weighing those factors “is a matter of reasoned discretion,

not math, and our highly deferential review of a district court’s sentencing decisions reflects as

much.” Id. (citing Gall v. United States, 552 U.S. 38, 51 (2007)). When a district court varies

above or below the Sentencing Guidelines, we “must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support the degree of the variance.”

United States v. Boucher, 937 F.3d 702, 708 (6th Cir. 2019) (quoting Gall, 552 U.S. at 50).

Ultimately, we “must give due deference to the district court’s decision that the § 3553(a) factors,



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on a whole, justify the extent of the variance.” United States v. Lanning, 633 F.3d 469, 476 (6th

Cir. 2011) (quoting Gall, 552 U.S. at 51).

       The district judge justified the 36-month sentence based on two key factors: (1) Williams’s

criminal history (including “ongoing contact with law enforcement”) and (2) the long-running

nature of Williams’s counterfeiting scheme. Williams contends that the district judge placed too

much emphasis on these factors and not enough weight on a third factor—his challenging personal

circumstances. As discussed below, the district judge did not abuse his discretion by concluding

that the facts of this case support a 20-month upward variance.

                                                1.

       The district judge determined that because Williams had a “lengthy record” of crimes

punished by short prison terms, a sentence in the 10- to 16-month Guideline range would not be

“in any way sufficient to deter this defendant and send the message that if he doesn’t comply with

the law when he’s released that there will be a consequence.”

       Reviewing the presentence report, the district judge observed that Williams had “a very

lengthy criminal history consisting of drug offenses, theft offenses, a sex offense, importuning,

contempt, driving under suspension, no valid driver’s license [and] . . . convict[ions] on three

separate occasions for domestic violence.” The district judge went on to note that Williams

“violated terms of probation in the past.” For these convictions, Williams served short sentences

(none exceeding one year) or no prison time at all.

       In the district judge’s view, the fact that Williams continued to engage in criminal conduct

showed that “earlier sentences of probation, community control, or short stints in prison have not

served any useful purpose.” Because Williams’s background suggested that a sentence in the 10-

to 16-month Guideline range would have been equally ineffective, the district judge reasonably



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No. 19-3358, United States v. Williams


concluded that an above-Guidelines sentence was necessary to “afford adequate deterrence to

criminal conduct,” and “protect the public from further crimes of the defendant.” See 18 U.S.C.

§ 3553(a)(2)(B), (C).

        Williams contends that his criminal history was properly accounted for in his Guideline

range, but his criminal record demonstrates that he is not in the “heartland” of defendants with a

criminal history category of IV. See Kimbrough v. United States, 552 U.S. 85, 109 (2007)

(observing that “a district court’s decision to vary from the advisory Guidelines may attract

greatest respect when the sentencing judge finds a particular case ‘outside the “heartland” to which

the Commission intends individual Guidelines to apply’”) (quoting Rita v. United States, 551 U.S.

338, 351 (2007)). As the district judge observed, the “numerous” offenses in Williams’s record

show that “over many years” he “has been unable to follow the law.” Notably, Williams had

thirteen prior convictions that contributed zero points to his “criminal history category” because

they were either more than ten years old or not sufficiently serious. Williams also had six prior

convictions worth one point each, but only four were counted because the criminal history

computation credits a maximum of four single-point offenses.

        The district judge also reasonably weighed the charges that were pending against Williams

or previously dismissed. As noted above, the district judge did not find that Williams actually

committed the charged conduct; he merely relied on the pending and dismissed charges to show

that Williams had “ongoing contact with law enforcement.” And the record suggests that the

district judge did not heavily rely on this factor. When discussing the pending charges, he focused

more on the fact that courts had issued arrest warrants due to Williams’s failure to appear.

Regarding the dismissed charges, the district judge noted only that they were “interesting to say

the least.”



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No. 19-3358, United States v. Williams


       Accordingly, the district judge properly concluded from Williams’s criminal history that

an above-Guidelines sentence was necessary to deter him from committing additional crimes.

                                                 2.

       The district judge determined that the long-running nature of Williams’s counterfeit

scheme reflected his repetitive criminal history and supported an above-Guidelines sentence.

summarized above, Williams passed a total of $4,000 in counterfeit currency over the course of

ten separate incidents in an eleven-month span. The district judge highlighted the repeat nature of

this scheme, noting that it “wasn’t a one or two-time activity.”

       Because Williams’s scheme involved ten separate acts of passing counterfeit currency, the

district judge reasonably concluded that it was more serious than the typical counterfeiting offense.

See § 3553(a)(1) (A sentence must “reflect the seriousness of the offense.”). Moreover, because

the length of the scheme was consistent with Williams’s pattern of reoffending, it lent further

support to the district judge’s conclusion that a sentence of 10 to 16 months would not adequately

deter Williams.

       In this regard, the Sentencing Guidelines failed to fully account for the nature of Williams’s

counterfeiting scheme. Although the offense level of a counterfeiting conviction increases with

the amount of money involved, it does not increase based on the number of instances involved.

See USSG § 2B5.1. Passing $4,000 in ten separate instances results in the same offense level as

passing $4,000 in a single transaction. Therefore, the district judge reasonably concluded that the

long-running nature of Williams’s scheme placed it outside of the “mine run” counterfeit offense.




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No. 19-3358, United States v. Williams


                                                 3.

       Finally, Williams contends that the district judge failed to consider mitigating factors,

including his financial struggles at the time of his offense, remorse, and timely acceptance of his

responsibility.

       To the contrary, a review of the sentencing transcript shows that the district judge did

consider these factors and simply determined that they did not warrant a lower sentence. During

the sentencing hearing, Williams’s attorney urged that he “accepted full responsibility,” that he

was “remorseful for his actions,” that in 2015 he was homeless, and that “at least some of the items

purchased [during the counterfeit scheme] were . . . diapers [and] household essentials for his

significant other and [her] child.” However, the district judge observed that Williams “described

his childhood in positive terms,” and it was conceded that Williams also used counterfeit money

to buy electronics.

       Because Williams failed to establish that his background was substantially less culpable

than the average offender’s, the district judge properly weighed this factor.

                                                III.

       Therefore, we AFFIRM the district court’s 36-month sentence.




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