                       NOT RECOMMENDED FOR PUBLICATION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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No. 19-4001, United States v. Patrick



        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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No. 19-4001, United States v. Patrick



          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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No. 19-4001, United States v. Patrick



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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