NOT RECOMMENDED FOR PUBLICATION File Name: 22a0516n.06
Case No. 21-4204
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Dec 13, 2022 ) UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF BRYAN WOLFE, ) OHIO Defendant-Appellant. ) ) OPINION
Before: LARSEN, DAVIS, and MATHIS, Circuit Judges.
MATHIS, Circuit Judge. Bryan Wolfe pleaded guilty to charges of possession of a
firearm after being convicted of a misdemeanor crime of domestic violence and multiple counts of
making interstate threatening communications. The district court sentenced Wolfe to an above-
Guidelines sentence of 46 months of imprisonment. Wolfe appeals his sentence. Finding no error,
we affirm.
I.
This action arises from Wolfe threatening children and adults in Ohio and Michigan after
engaging in online arguments on Facebook.
On November 2, 2019, Wolfe sent threatening messages to victim one, T.J., via Facebook.
Wolfe, using an account under the name of “Dolf Hidler,” began sending T.J. pictures of her family
members and threatened to kidnap them. (R. 48, Page ID 169). Specifically, Wolfe stated: Case No. 21-4204, United States v. Wolfe
Not sure which of your family. Maybe you yourself. But I will take one from you. Maybe that little baby. Snatch her from your presence. Or maybe the ugly ass boy. He looks like he came out of a tube. Bitch the clock is ticking. You can take this as a joke and should leave my CUNTry (sic) and go back to chucking spears. But I will take one. Laugh your inferior black asses off. Think it’s a game. But don’t do your ghetto crying after the fact. Ps (sic) your entire family are inferior and the worthless stank hoe bitches are inferior. And we won’t be extinct but I laugh every time one of you is killed. Tick tock bitch.
(Id.). T.J. and her family members are African American.
On September 8, 2020, Wolfe sent victim two, E.H., threatening messages via Facebook.
Wolfe, this time using an account under the name “Shaun Wolfie”, threatened to burn a Quran in
E.H.’s yard and sent him a picture of E.H.’s home, followed by a picture of a bonfire. Wolfe also
communicated with E.H. using slurs and derogatory terms, stating “Fuck Mohammed,” and
referring to him as “haji” and “faggot.” (Id. at 170).
On September 13, 2020, Wolfe sent threatening messages to victim three, J.M., via
Facebook. Wolfe, again using the “Shaun Wolfie” profile name, threatened to kill J.M.’s children.
Specifically, Wolfe stated: “And it’s why you and your nigger will swing from knots cunt. He will
be saying ‘I can’t breath’ (sic) while I am drinking a beer and you’re bleeding watching it all.”
(Id.). Wolfe also sent J.M. a picture of her children, who are biracial (African American and
Caucasian).
After receiving reports of these threats, on September 18, 2020, law enforcement officers
executed a federal search warrant at Wolfe’s home. During the search, they recovered a Smith and
Wesson M&P 45 Shield Pistol on a mantle in the living room. Because Wolfe had been previously
convicted of a misdemeanor of domestic violence, he was prohibited from possessing a firearm.
A federal grand jury returned a superseding indictment charging Wolfe with one count of
illegally possessing a firearm after having been convicted of a misdemeanor crime of domestic
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violence in violation of 18 U.S.C. § 922(g)(9) (“Count 1”), and three counts of making interstate
threatening communications in violation of 18 U.S.C. § 875(c) (“Counts 2 through 4”). Wolfe
executed a written plea advisement, and on August 26, 2021, he pleaded guilty to all charges in
the superseding indictment. During the change of plea hearing, the Government advised Wolfe
and the district court that it anticipated requesting an upward variance at sentencing.
1. Presentence Investigation Report
The Presentence Investigation Report (“PSR”) assigned a base offense level of 14 for
Count 1 under U.S.S.G. § 2K2.1(a)(6). The base offense level for each of Counts 2 through 4 was
12, with a three-level hate-crime enhancement pursuant to U.S.S.G. § 3A1.1, bringing the adjusted
offense level to 15. Wolfe also received a four-level multiple-count enhancement, resulting in a
combined adjusted offense level of 19. The PSR recommended a three-level reduction for
acceptance of responsibility, bringing Wolfe’s final offense level to 16.
Although Wolfe had a lengthy criminal history, including convictions for assault,
disorderly conduct, aggravated assault, menacing, driving under the influence, and domestic
violence, his criminal history category was II. Based on an offense level of 16 and criminal history
category II, Wolfe’s advisory Guidelines range was 24 to 30 months of imprisonment.
Wolfe objected to the multiple-count enhancement, arguing that because Counts 2 through
4 involved different victims and were not part of the same transaction, they could not be grouped.
Wolfe also argued for a downward variance based on, inter alia, his “diminished mental capacity.”
2. Sentencing Hearing
On December 14, 2021, Wolfe filed a sentencing memorandum requesting a sentence at
the low end of the “proper sentencing guideline range,” citing, inter alia, his mental health as
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grounds for imposing a lower sentence. (R. 50, PageID 199–200). On December 15, 2021, the
Government filed its sentencing memorandum and requested an upward variance.
On December 16, 2021, the district court sentenced Wolfe. The court adopted the PSR,
overruling Wolfe’s objection to the multiple-count enhancement. Wolfe did not object to the PSR
on any other grounds.
The district court noted that it had reviewed the sentencing memoranda from Wolfe and
the Government. The court also discussed the § 3553(a) sentencing factors with Wolfe to ensure
he understood their application. Wolfe’s attorney argued for the lowest sentence available under
the Guidelines range, noting that although Wolfe was a high achiever in his career, he had
unresolved mental health issues. The Government requested that the court vary upward and impose
a 48-month sentence based on the nature and circumstances of the offenses in which Wolfe made
serious threats against racial and ethnic minorities, as well as Wolfe’s history and characteristics.
The Government argued that such a sentence would properly reflect the seriousness of the offense
and provide adequate deterrence.
When Wolfe allocuted, he apologized, claiming he had ruined his life, as well as the lives
of his family and of the victims. Wolfe indicated that his life had been difficult during the two
years before his crimes and said, “I can’t give an honest answer why I did it.” (R. 65, PageID 296–
97). After hearing from Wolfe, the court advised that its sentence was based, in significant part,
on the nature and circumstances of Wolfe’s actions and the impact on his victims, stating that
“[h]aving a threat against [a parent] would be bad enough, but having a threat against one of their
children and in feeling kind of helpless that they can’t protect their own child and not knowing
where the threat’s coming from or why the threat is coming” was difficult to comprehend. (Id. at
297–98). The court also noted that the racial nature of the threats added to the difficulty victims
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likely faced when trying to deal with the threats. Additionally, the court expressed that “one of the
things that really bothered [the court] about this was that it took a lot of work and effort on
[Wolfe’s] part to investigate—this wasn’t like a one-time thing.” (Id. at 298).
The district court acknowledged Wolfe’s history and characteristics, including his
difficulties at home and at work, and noted his criminal history. The court concluded that Wolfe
was a danger to the community based on the “vile fashion” of his actions toward strangers and that
it was necessary to protect “not only [Wolfe’s] safety but the safety of the community and to ensure
that something like this won’t happen again.”
As such, the court noted that an upward “departure” was appropriate based on the facts and
circumstances of the case and sentenced Wolfe to 46 months of imprisonment, stating that this was
sufficient to deter Wolfe from committing similar acts in the future. (Id. at 300–301). The court
further recommended that Wolfe receive mental health treatment while incarcerated. Wolfe did
not lodge any additional objections to the sentence.
The court entered the judgment and filed its statement of reasons. In the statement of
reasons, the court indicated that it had imposed a sentence outside the applicable sentencing
Guidelines range and determined that a “variance” was appropriate. As it stated during its oral
pronouncement of the sentence, the court based its reasoning for a variance on the nature and
circumstances of the offense and victim impact, as well as the need to afford adequate deterrence
to criminal conduct and to protect the public from further crimes by Wolfe. Wolfe timely appealed.
II.
Wolfe presents the following issues on appeal: (1) whether the court’s sentencing of Wolfe
represented a “departure” rather than a “variance” from the Guidelines such that advance notice
was required under Federal Rule of Criminal Procedure 32(h); (2) whether the court’s calculation
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of his sentence based on the multiple-count and hate-crime enhancements under the Guidelines
was erroneous; (3) whether the district court properly considered Wolfe’s mental health and his
efforts at rehabilitation while incarcerated in its sentencing decision; and (4) whether the court’s
application of the multiple-count and hate-crime enhancements violated the Fifth Amendment
prohibition against double jeopardy. The second and third issues raised by Wolfe are appropriately
addressed under an inquiry into the reasonableness of Wolfe’s sentence. For the reasons explained
below, we affirm Wolfe’s sentence.
A.
The first issue is whether Wolfe’s sentence constituted a “departure” or a “variance” from
the Guidelines. This is a question of law that we consider de novo. United States v. Denny, 653
F.3d 415, 419 (6th Cir. 2011).
We have explained the difference between a departure and a variance as follows:
“Departure” is a term of art under the Guidelines and is distinct from “variance.” A Guidelines “departure” refers to the imposition of a sentence outside the advisory range or an assignment of a criminal history category different than the otherwise applicable category made to effect a sentence outside the range. Importantly, a departure results from the district court’s application of a particular Guidelines provision, such as § 4A1.3 or § 5, Part K. A “variance” refers to the selection of a sentence outside of the advisory Guidelines range based upon the district court’s weighing of one or more of the sentencing factors of § 3553(a). While the same facts and analyses can, at times, be used to justify both a Guidelines departure and a variance, the concepts are distinct.
United States v. Grams, 566 F.3d 683, 686–87 (6th Cir. 2009) (per curiam) (internal citations
omitted).
The distinction between the two concepts matters because a departure triggers certain
notice requirements. Rule 32(h) of the Federal Rules of Criminal Procedure requires district courts
to provide the parties with reasonable notice that it is considering a departure from the Guidelines
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“on a ground not identified for departure either in the presentence report or in a party’s prehearing
submission.” Fed. R. Crim. P. 32(h). This notice provision does not apply when the district court
applies a “variance” based on the sentencing factors of 18 U.S.C. § 3553(a). See Irizarry v. United
States, 553 U.S. 708, 714–16 (2008). Therefore, if the district court applied an upward “departure,”
there would be a question as to whether Wolfe was provided with reasonable notice of the intent
to seek such a departure. We need not reach this question, however, because the record shows that
the district court varied from the Guidelines range; it did not depart.
We first review the oral sentence pronounced by the district court to determine whether it
intended to apply a departure or variance. See United States v. Penson, 526 F.3d 331, 334 (6th Cir.
2008) (“[W]hen an oral sentence conflicts with the written sentence, the oral sentence controls.”)
(quotation and citation omitted). The rationale for giving an oral sentence primacy is that “criminal
punishment ‘affects the most fundamental human rights,’” and as such, “‘[s]entencing should be
conducted with the judge and defendant facing one another and not in secret.’” Id. (quoting United
States v. Villano, 816 F.2d 1448, 1452 (10th Cir. 1987) (en banc)). The terminology used during
sentencing matters, but we have observed that “no specific magic words are necessary to render a
sentence reasonable.” United States v. Davis, 458 F.3d 505, 507 (6th Cir. 2006).
The district court’s decision to sentence Wolfe to a sentence longer than that recommended
under the Guidelines does not necessarily mean the court departed from the Guidelines even
though the court used the word “departure.” The question of whether the district court made a
variance or departure ultimately comes down to its grounds for deviating; that is, whether the court
sentenced Wolfe above the Guidelines range based on § 4A1.3 or Part K, § 5 of the Guidelines, or
based on the § 3553(a) factors. Denny, 653 F.3d at 420. Congress has instructed that “a court shall
impose a sentence sufficient, but not greater than necessary,” and in doing so, the court is to
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consider certain factors, including “the nature and circumstances of the offense,” “the history and
characteristics of the defendant,” “the seriousness of the offense,” the need “to promote respect for
the law,” the provision of “just punishment,” the protection of the public, and the need to “afford
adequate deterrence.” 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C). These factors allow the court “a
‘much broader range of discretionary decisionmaking’ than the discretion provided by the
Sentencing Guidelines.” Denny, 653 F.3d at 420 (quoting United States v. Stephens, 549 F.3d 459,
466–67 (6th Cir. 2008)).
This case is similar to Denny. In Denny, although the district court used the term
“departure” in speaking about the defendant’s sentence, we determined that the district court’s
failure to use the word “variance” was not conclusive evidence that the court had departed from
the Guidelines range, rather than varied, because the district court made clear references to the §
3553(a) factors in fashioning a sentence. See id. at 420–21. Here, the district court also did not use
the term “variance” and used the term “departure” one time.
In sentencing Wolfe, the court did not identify any of the numerous departure provisions
in the Guidelines. And, in fact, Wolfe does not identify any departure provision that he claims the
district court relied on in sentencing him above the Guidelines range. The court focused on the §
3553(a) factors. In its discussion of the nature and characteristics of the offense, the court discussed
the effort Wolfe put into threatening his victims, his use of racial and ethnic slurs, and the fact that
he threatened children. The court also discussed Wolfe’s personal history and characteristics,
including his difficulties with his family, job, and home life, as well as his criminal history. The
court also recognized its need to protect the community and to prevent Wolfe from committing
this type of behavior again. Based on the oral sentence pronouncement, we find that the district
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court intended to vary above the Guidelines range rather than depart, thus rendering Rule 32(h)’s
notice requirement inapplicable.
The district court’s written judgment also supports this conclusion. In its statement of
reasons,1 the court indicated that it was adopting the PSR without change and marked the box next
to the statement specifying it had “imposed a sentence otherwise outside the sentencing guideline
system (i.e., a variance).” (R. 56, PageID 265–66 (emphasis added)). The district court left Section
V of the form, related to departures, blank and filled in Section VI related to variances, noting that
it was relying on the following § 3553(a) factors in sentencing: the nature and circumstances of
the offense (including victim impact), the affording of adequate deterrence to criminal conduct,
and the protection of the public from further crimes of Wolfe.
B.
We construe Wolfe’s claims regarding the court’s calculation of his Guidelines range,
including its application of the multiple-count and hate crime enhancements, and the court’s
consideration of his mental health condition during sentencing, as challenging the reasonableness
of Wolfe’s sentence.
1. Procedural Reasonableness
We first review Wolfe’s sentence for procedural reasonableness, which is satisfied as long
as “the district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation from the
1 We have advised caution when looking to a statement of reasons, which has been intended to serve a record-keeping function and thus may not be “crafted with the same precision that judges heed during the oral sentence.” Denny, 653 F.3d at 422. For this reason, we do not rely solely on the statement of reasons to divine the district court’s intent but rather view the statement of reasons as further support of an unambiguous oral sentencing determination.
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Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007); see also Denny, 653 F.3d at 423.
We review the district court’s legal conclusions de novo, and its factual findings for clear error.
See United States v. Henry, 819 F.3d 856, 864 (6th Cir. 2016) (citing United States v. Taylor, 648
F.3d 417, 431 (6th Cir. 2011)).
When the district court gives the parties an opportunity to raise errors after pronouncing
the sentence, and the appealing party fails to do so, we review for plain error. United States v.
Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). Under plain error review, Wolfe must show an
“(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected [Wolfe’s] substantial rights’ and (4) that
‘affected the fairness, integrity, or public reputation of the judicial proceedings.’” United States v.
Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (quoting United States v. Gardiner, 463 F.3d 445, 459
(6th Cir. 2006)). Plain error will only be found in “‘exceptional circumstances’ . . . ‘where the
error is so plain that the trial judge . . . [was] derelict in countenancing it.’” Id. (quoting Gardiner,
463 F.3d at 459).
Wolfe claims that his sentence is procedurally unreasonable because the district court:
(1) erred in applying the multiple-count enhancement, (2) applied the wrong standard for the hate-
crime enhancement, and (3) did not properly consider his mental condition and efforts at
rehabilitation while incarcerated. We address each of these grounds in turn.
a. Multiple-count enhancement
The district court did not err in applying the multiple-count enhancement under the
Guidelines, which provide “the starting point and the initial benchmark” for the district court when
crafting a sentence. Gall, 552 U.S. at 49. The “district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines range.” Id. (citing Rita v. United
States, 551 U.S. 338, 347–48 (2007)). Then, after allowing the parties to argue for a sentence they
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deem appropriate, the district court should consider the § 3553(a) factors. See id. at 49–50. After
determining the appropriate sentence based on the facts presented, the district court “must
adequately explain the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Id. at 50.
First, the district court did not miscalculate Wolfe’s Guidelines range when it adopted the
PSR and made an initial finding that Wolfe had a total offense level of 16 and a criminal history
category of II. Indeed, the district court “must follow the clear and unambiguous language of the
Sentencing Guidelines when interpreting and applying specific provisions.” United States v.
Young, 266 F.3d 468, 484 (6th Cir. 2001). In his objection to the PSR and at sentencing, Wolfe
argued that because the counts involved different victims and were not part of the same transaction,
they could not be grouped under § 3D1.2, which meant that § 3D1.3 would not apply, and as such,
the calculation of the combined adjusted offense level under § 3D1.4 was incorrect. (PSR (Sealed),
R. 48, PageID 186–87). The district court found that the counts could not be grouped, and as such,
each count was its own group, though grouping counts was different from determining the
combined adjusted offense level under § 3D1.4.
The district court accurately determined that the counts could not be grouped. See, e.g.,
U.S.S.G. Commentary to Ch. 3, Part D, Illustration 1 (“Defendant A was convicted of four counts,
each charging robbery of a different bank. Each would represent a distinct Group.”). This does not
impact the application of § 3D1.4, which provides that “[t]he combined offense level is determined
by taking the offense level applicable to the Group with the highest offense level and increasing
that offense level” by a specific number of units based on the increase in offense level. The group
with the highest offense level is assigned one unit, and an additional unit is counted “for each
Group that is equally serious or from 1 to 4 levels less serious.” U.S.S.G. § 3D1.4(a). Application
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Note 2 confirms this procedure for determining the combined offense level when faced with more
than one Group (or count):
First, identify the offense level applicable to the most serious Group; assign it one Unit. Next, determine the number of Units that the remaining Groups represent. Finally, increase the offense level for the most serious Group by the number of levels indicated in the table corresponding to the total number of Units.
Wolfe has failed to show that the district court made an error in applying the multi-count
enhancement. To the contrary, it appears the court followed the Guidelines exactly. Count 1 had
an offense level of 14 and Counts 2 through 4 each had offense levels of 15 after the hate-crime
enhancement was applied. Counts 2 through 4 were the most serious with an offense level of 15.
Thus, one unit was added to one of these counts, and because all three counts had an offense level
of 15, it did not matter which group received that one unit. Then, one unit was added for each of
the remaining counts because the seriousness of each remaining count was within one to four levels
less serious, bringing the combined adjusted offense level to 19.
Second, Wolfe’s argument that the court double-counted levels by adding one unit to each
of Counts 2 through 4 fails. Double counting “‘occurs when precisely the same aspect of a
defendant’s conduct factors into his sentence in two separate ways.’” United States v. Duke, 870
F.3d 397, 404 (6th Cir. 2017) (quoting United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999)).
Even though “this Circuit retains [a] dim view of double counting,” not all double counting is
impermissible. United States v. Smith, 196 F.3d 676, 681 (6th Cir. 1999). We have identified “two
situations where double counting is permissible: 1) where ‘the Sentencing Guidelines expressly
mandate double counting . . . through the cumulative application of sentencing adjustments,’ and
2) ‘where it appears that Congress or the Sentencing Commission intended to attach multiple
penalties to the same conduct.’” United States v. Clark, 11 F.4th 491, 495 (6th Cir. 2021) (quoting
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Farrow, 198 F.3d at 194). Generally, we first determine whether double counting occurred and, if
so, we determine whether any such double counting was impermissible. Duke, 870 F.3d at 404.
Wolfe argues that the district court double counted by adding one unit for each of the
interstate threatening communication counts when calculating the multiple-count enhancement
under § 3D1.4. Simply put, this is not double counting because the same aspect of Wolfe’s conduct
was not factored into his sentence in two separate ways through application of the multiple-count
enhancement. There were four separate counts to consider in calculating the combined adjusted
offense level under § 3D1.4. Had Counts 2 through 4 been grouped together, Wolfe’s combined
adjusted offense level would have been lower. But, as discussed above, Counts 2 through 4 could
not be grouped together because they involved different victims and separate transactions.
b. Hate-crime enhancement
Next, Wolfe argues that the district court did not apply the appropriate standard in applying
the § 3A1.1(a) hate-crime enhancement. Because Wolfe did not object to the application of the
hate-crime enhancement, we review for plain error. United States v. Vonner, 516 F.3d 382, 386
(6th Cir. 2008) (en banc). The hate-crime guideline provides:
If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person, increase by 3 levels.
U.S.S.G. § 3A1.1(a).
The appropriate standard for applying the hate-crime enhancement is beyond a reasonable
doubt. Id. Although the district court did not explicitly use the words “beyond a reasonable doubt,”
the court adopted the PSR and noted that Wolfe intentionally selected his victims based on race,
religion, and/or ethnicity, asking “I mean, why would you pick on a black individual or a Muslim - 13 - Case No. 21-4204, United States v. Wolfe
individual, you have an idea of why you would search that out and do that” and noting that threats
“based on race or ethnic background” are more difficult for the victims. (R. 65, PageID 298).
The record supports a finding that Wolfe intentionally selected his victims based on their
race, religion, and/or ethnicity beyond a reasonable doubt. Wolfe’s threats appear in detail in both
the plea advisement and the PSR. Wolfe initialed each page of the plea advisement and signed it.
When asked, Wolfe confirmed that he went over the facts as listed in the plea advisement with his
attorney and that the conduct listed in the plea advisement explained his conduct. He further
indicated that he did not have any corrections. Wolfe did not object to the PSR’s application of the
hate-crime enhancement or the facts supporting that enhancement. The district court adopted the
PSR, which included the hate-crime enhancement in its calculations, without change. Thus, there
is sufficient evidence in the record establishing beyond a reasonable doubt that Wolfe intentionally
selected his victims based on their race, religion, and/or ethnicity. U.S.S.G. § 3A1.1(a). As such,
the district court did not plainly err in applying the hate-crime enhancement.
c. Consideration of mental health and post-conviction rehabilitation
Wolfe also argues that the district court failed to fully consider the impact of his mental
health and post-conviction rehabilitation efforts when fashioning his sentence. Specifically, Wolfe
claims that the court did not address these points on the record in a way that allows for meaningful
appellate review.
The Supreme Court has held that “[t]he sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita, 551 U.S. at 356 (citing United States v.
Taylor, 487 U.S. 326, 336–37 (1988)). Additionally, “when ‘a defendant raises a particular
argument in seeking a lower sentence, the record must reflect both that the district judge considered
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the defendant’s argument and that the judge explained the basis for rejecting it.’” United States v.
Jones, 489 F.3d 243, 251 (6th Cir. 2007) (quoting United States v. Richardson, 437 F.3d 550, 554
(6th Cir. 2006)). There is no mandate on exactly what level of detail is required from the district
court, and instead “we ask whether the sentencing judge provided an explanation for the sentence
sufficient for this court to discern that the judge weighed the relevant factors and did not ‘simply
selec[t] what the judge deem[ed] an appropriate sentence without such required consideration.’”
United States v. Coleman, 835 F.3d 606, 616 (6th Cir. 2016) (quoting United States v. Moon, 513
F.3d 527, 539 (6th Cir. 2008)).
We discern no error. Wolfe’s mental health condition was addressed in the PSR, which
detailed Wolfe’s previous suicide attempt, and in Wolfe’s sentencing memorandum, in which
Wolfe claimed he “suffered from mental instability” and “periodically attended mental health
counseling, including medication[.]” (R. 48, PageID 178; R. 50, PageID 200). The court noted at
sentencing that it had reviewed these documents. The court, in sentencing Wolfe, recommended
that Wolfe receive mental health treatment both while incarcerated and while on supervised
release. Thus, Wolfe has failed to show that the court did not consider his mental health condition
in fashioning the sentence.
2. Substantive Reasonableness
Having determined that Wolfe’s sentence was procedurally reasonable, we now review
Wolfe’s sentence for substantive reasonableness, considering the “totality of the circumstances,
including the extent of any variance from the Guidelines range,” the weight placed on the § 3553(a)
factors in sentencing, and the length of the sentence. Gall, 552 U.S. at 51; see also United States
v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Substantive reasonableness focuses on whether a
“sentence is too long (if a defendant appeals) or too short (if the government appeals).” Rayyan,
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885 F.3d at 442. “The point is not that the district court failed to consider a factor or considered an
inappropriate factor; that’s the job of procedural unreasonableness.” Id. at 442. Rather, substantive
unreasonableness 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.” Id. Our review is highly deferential,
and “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.” Gall, 552 U.S. at 51.
Because Wolfe’s sentence falls outside the Guidelines range, there is no presumption of
reasonableness. See Rita, 551 U.S. at 341.
Wolfe’s sentence was substantively reasonable. The district court did not arbitrarily select
Wolfe’s sentence but instead based its decision on the § 3553(a) factors, with particular focus on
the seriousness of the offense, the impact on the victims, and Wolfe’s criminal history.
Importantly, the court also specified deterrence and protection of the community as reasons for its
sentencing decision. Wolfe’s claim that the court focused too much on deterrence in light of
Wolfe’s mental health condition is unavailing because the court considered Wolfe’s mental health
in fashioning a sentence. Wolfe argues that “[i]t is incorrect to assume that punishment and
deterrence factors of 18 USC 3553 are no different for those with mental illness than those with
full rational capabilities.” Yet he provides no jurisprudential or evidentiary support for this idea.
The district court, having reviewed all the evidence in the record and interacting with Wolfe, was
in the best position to determine an appropriate sentence. See Gall, 552 U.S. at 51 (“The sentencing
judge is in a superior position to find facts and judge their import under § 3553(a) in the individual
case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge
of the facts and gains insights not conveyed by the record.”).
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C.
Wolfe’s argument that the court violated his double jeopardy rights by applying the
multiple-count and hate-crime enhancements is unavailing. Because Wolfe raised this argument
for the first time on appeal, we review the district court’s decision for plain error. See United States
v. Wheeler, 330 F.3d 407, 413 (6th Cir. 2003) (citing United States v. Koeberlein, 161 F.3d 946,
949 (6th Cir. 1998)).
The Double Jeopardy Clause provides that no person shall “be subject for the same offense
to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Supreme Court has “found
double jeopardy protections inapplicable to sentencing proceedings . . . because the determinations
at issue do not place a defendant in jeopardy for an ‘offense[.]’” Monge v. California, 524 U.S.
721, 728 (1998) (internal citations omitted); see Wheeler, 330 F.3d at 413. The same rule applies
to sentencing enhancements (or adjustments), which are “not to be viewed as either a new jeopardy
or additional penalty,” but rather as “a stiffened penalty” for the crime. Monge, 524 U.S. at 728.
Indeed, “double jeopardy concerns are not implicated when . . . a district court simply applies
multiple guidelines to determine the appropriate sentence for an offense of conviction.” Wheeler,
330 F.3d at 413.
Because the district court simply applied the Guidelines in determining Wolfe’s sentencing
range, there is no violation of double jeopardy in applying the multiple-count and hate-crime
enhancements.
III.
Based on the foregoing, we AFFIRM Wolfe’s sentence.
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