NOT RECOMMENDED FOR PUBLICATION File Name: 24a0035n.06
Case No. 23-3112
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) Jan 25, 2024 UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF DEON RODGERS-INGERSOLL, ) OHIO Defendant-Appellant. ) OPINION )
Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. A federal court sentenced Deon Rodgers-Ingersoll to thirty-six
months in prison for possessing a firearm as a felon. Rodgers-Ingersoll challenges his sentence as
procedurally and substantively unreasonable. Because it is neither, we affirm.
I.
Rodgers-Ingersoll purchased ammunition at a gun show. A federal agent witnessed the
transaction and checked Rodgers-Ingersoll’s license plate as he drove away. The agent discovered
Rodgers-Ingersoll had a felony conviction, making it illegal for him to purchase ammunition. See
18 U.S.C. § 922(g)(1). The agent was working with local police, who followed Rodgers-
Ingersoll’s car and attempted a traffic stop.
Though Rodgers-Ingersoll initially failed to respond to the police’s lights and sirens, he
eventually pulled over. Police approached the vehicle and noticed Rodgers-Ingersoll’s passenger Case No. 23-3112, United States v. Rodgers-Ingersoll
had a firearm on his lap. After police secured the gun, Rodgers-Ingersoll asked if he could grab
his wallet and reached for his girlfriend’s purse. Worried he was reaching for another weapon,
police knocked the purse from his hand. A gun fell out of it. Police then searched the car and
found two additional firearms, over 500 cartridges of ammunition, three large-capacity magazines,
and cannabis. Rodgers-Ingersoll later admitted that he intended to resell the guns and ammo.
Rodgers-Ingersoll pled guilty to possessing a firearm as a felon. The presentence report
calculated Rodgers-Ingersoll’s Guidelines range at twelve to eighteen months’ imprisonment, and
neither party objected. But at sentencing, the district court varied upward and imposed a thirty-
six-month sentence. Rodgers-Ingersoll appeals.
II.
Rodgers-Ingersoll argues his sentence is procedurally unreasonable because the district
court relied on incorrect information. He also claims the court failed to provide notice that it might
vary his sentence upward. Lastly, he claims his sentence is substantively unreasonable. Rodgers-
Ingersoll raises these claims for the first time on appeal. We therefore review his procedural
challenges for plain error, and his substantive challenge for abuse of discretion. United States v.
Hatcher, 947 F.3d 383, 389 (6th Cir. 2020); United States v. Demma, 948 F.3d 722, 727 (6th Cir.
2020). In any event, all his claims fail.
A.
First, Rodgers-Ingersoll argues his sentence was procedurally unreasonable because the
court relied on “clearly erroneous” facts. See United States v. Miller, 73 F.4th 427, 429–30 (6th
Cir. 2023). Specifically, he takes issue with one exchange during the sentencing hearing. In that
exchange, the court asked the government if Rodgers-Ingersoll had a gun on his lap during the
-2- Case No. 23-3112, United States v. Rodgers-Ingersoll
traffic stop. The government answered yes, even though it was Rodgers-Ingersoll’s passenger
who had a gun on his lap.
If the court had relied on this mistake when imposing the upward variance, Rodgers-
Ingersoll might have a claim. Cf. United States v. Adams, 873 F.3d 512, 517–18 (6th Cir. 2017).
But it didn’t. Later in the sentencing, when the court explained why it varied Rodgers-Ingersoll’s
sentence upward, it correctly noted that the firearm was on the passenger’s lap. Thus, the court
didn’t rely on erroneous facts when it imposed the variance.
Rodgers-Ingersoll disagrees and argues that the court’s subsequent clarification “did not
clearly and unequivocally correct” the earlier mistake. Reply Br. 8. But Rodgers-Ingersoll needs
to show that the court relied on clearly erroneous information—not that it failed to “clearly” correct
a slip-up. And here, the court didn’t rely on incorrect facts.
Regardless, the lap gun was just one of many factors supporting the variance. The court
also considered Rodgers-Ingersoll’s history of domestic violence, his criminal record, the lack of
deterrence from past sentences, his decision to reach for a weapon during arrest, and his plan to
resell the illegally obtained guns and ammo. Thus, there’s no reason to believe the court based
Rodgers-Ingersoll’s sentence on a single, subsequently corrected misstatement of fact.
B.
Second, Rodgers-Ingersoll argues his sentence was procedurally unreasonable because he
lacked notice that the court was considering a variance. The Supreme Court, however, has made
clear that variances don’t require notice. Irizarry v. United States, 553 U.S. 708, 714–16 (2008).
To be sure, we’ve held that a court sometimes needs to “provide notice of the specific issues it
plans to consider in imposing a variance”—but only when “those issues will come as a surprise to
-3- Case No. 23-3112, United States v. Rodgers-Ingersoll
the parties.” United States v. Fleming, 894 F.3d 764, 770–71 (6th Cir. 2018). By contrast, a court
“need not notify the parties that a variance is possible.” Id. at 770.
Here, Rodgers-Ingersoll doesn’t allege that the court relied on unexpected information
when varying his sentence. Nor could he: the PSR identified the specific issues upon which the
court relied, and Rodgers-Ingersoll had access to that report before sentencing. Rather, Rodgers-
Ingersoll complains that he lacked notice of the possibility of a variance. Our precedents make
clear that no such notice is required.
C.
Rodgers-Ingersoll also claims his sentence was substantively unreasonable—that is, too
long. On appeal, we assess whether the court reasonably weighed the § 3553(a) factors. United
States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018); see 18 U.S.C. § 3553(a).
The district court gave three reasons for varying above the Guidelines range. See 18 U.S.C.
§ 3553(a)(1)–(2). First, the district court considered Rodgers-Ingersoll’s disobedient and
dangerous conduct during the traffic stop. He did not initially stop after the police attempted to
pull him over. And once pulled over, he reached for a purse containing a firearm, jeopardizing the
safety of his passengers and the officers. Second, the district court considered the crime’s context
within the broader community. Rodgers-Ingersoll’s car was filled with large-capacity magazines
and firearms, some of which he intended to resell. The district court found it concerning that in
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NOT RECOMMENDED FOR PUBLICATION File Name: 24a0035n.06
Case No. 23-3112
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) Jan 25, 2024 UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF DEON RODGERS-INGERSOLL, ) OHIO Defendant-Appellant. ) OPINION )
Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. A federal court sentenced Deon Rodgers-Ingersoll to thirty-six
months in prison for possessing a firearm as a felon. Rodgers-Ingersoll challenges his sentence as
procedurally and substantively unreasonable. Because it is neither, we affirm.
I.
Rodgers-Ingersoll purchased ammunition at a gun show. A federal agent witnessed the
transaction and checked Rodgers-Ingersoll’s license plate as he drove away. The agent discovered
Rodgers-Ingersoll had a felony conviction, making it illegal for him to purchase ammunition. See
18 U.S.C. § 922(g)(1). The agent was working with local police, who followed Rodgers-
Ingersoll’s car and attempted a traffic stop.
Though Rodgers-Ingersoll initially failed to respond to the police’s lights and sirens, he
eventually pulled over. Police approached the vehicle and noticed Rodgers-Ingersoll’s passenger Case No. 23-3112, United States v. Rodgers-Ingersoll
had a firearm on his lap. After police secured the gun, Rodgers-Ingersoll asked if he could grab
his wallet and reached for his girlfriend’s purse. Worried he was reaching for another weapon,
police knocked the purse from his hand. A gun fell out of it. Police then searched the car and
found two additional firearms, over 500 cartridges of ammunition, three large-capacity magazines,
and cannabis. Rodgers-Ingersoll later admitted that he intended to resell the guns and ammo.
Rodgers-Ingersoll pled guilty to possessing a firearm as a felon. The presentence report
calculated Rodgers-Ingersoll’s Guidelines range at twelve to eighteen months’ imprisonment, and
neither party objected. But at sentencing, the district court varied upward and imposed a thirty-
six-month sentence. Rodgers-Ingersoll appeals.
II.
Rodgers-Ingersoll argues his sentence is procedurally unreasonable because the district
court relied on incorrect information. He also claims the court failed to provide notice that it might
vary his sentence upward. Lastly, he claims his sentence is substantively unreasonable. Rodgers-
Ingersoll raises these claims for the first time on appeal. We therefore review his procedural
challenges for plain error, and his substantive challenge for abuse of discretion. United States v.
Hatcher, 947 F.3d 383, 389 (6th Cir. 2020); United States v. Demma, 948 F.3d 722, 727 (6th Cir.
2020). In any event, all his claims fail.
A.
First, Rodgers-Ingersoll argues his sentence was procedurally unreasonable because the
court relied on “clearly erroneous” facts. See United States v. Miller, 73 F.4th 427, 429–30 (6th
Cir. 2023). Specifically, he takes issue with one exchange during the sentencing hearing. In that
exchange, the court asked the government if Rodgers-Ingersoll had a gun on his lap during the
-2- Case No. 23-3112, United States v. Rodgers-Ingersoll
traffic stop. The government answered yes, even though it was Rodgers-Ingersoll’s passenger
who had a gun on his lap.
If the court had relied on this mistake when imposing the upward variance, Rodgers-
Ingersoll might have a claim. Cf. United States v. Adams, 873 F.3d 512, 517–18 (6th Cir. 2017).
But it didn’t. Later in the sentencing, when the court explained why it varied Rodgers-Ingersoll’s
sentence upward, it correctly noted that the firearm was on the passenger’s lap. Thus, the court
didn’t rely on erroneous facts when it imposed the variance.
Rodgers-Ingersoll disagrees and argues that the court’s subsequent clarification “did not
clearly and unequivocally correct” the earlier mistake. Reply Br. 8. But Rodgers-Ingersoll needs
to show that the court relied on clearly erroneous information—not that it failed to “clearly” correct
a slip-up. And here, the court didn’t rely on incorrect facts.
Regardless, the lap gun was just one of many factors supporting the variance. The court
also considered Rodgers-Ingersoll’s history of domestic violence, his criminal record, the lack of
deterrence from past sentences, his decision to reach for a weapon during arrest, and his plan to
resell the illegally obtained guns and ammo. Thus, there’s no reason to believe the court based
Rodgers-Ingersoll’s sentence on a single, subsequently corrected misstatement of fact.
B.
Second, Rodgers-Ingersoll argues his sentence was procedurally unreasonable because he
lacked notice that the court was considering a variance. The Supreme Court, however, has made
clear that variances don’t require notice. Irizarry v. United States, 553 U.S. 708, 714–16 (2008).
To be sure, we’ve held that a court sometimes needs to “provide notice of the specific issues it
plans to consider in imposing a variance”—but only when “those issues will come as a surprise to
-3- Case No. 23-3112, United States v. Rodgers-Ingersoll
the parties.” United States v. Fleming, 894 F.3d 764, 770–71 (6th Cir. 2018). By contrast, a court
“need not notify the parties that a variance is possible.” Id. at 770.
Here, Rodgers-Ingersoll doesn’t allege that the court relied on unexpected information
when varying his sentence. Nor could he: the PSR identified the specific issues upon which the
court relied, and Rodgers-Ingersoll had access to that report before sentencing. Rather, Rodgers-
Ingersoll complains that he lacked notice of the possibility of a variance. Our precedents make
clear that no such notice is required.
C.
Rodgers-Ingersoll also claims his sentence was substantively unreasonable—that is, too
long. On appeal, we assess whether the court reasonably weighed the § 3553(a) factors. United
States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018); see 18 U.S.C. § 3553(a).
The district court gave three reasons for varying above the Guidelines range. See 18 U.S.C.
§ 3553(a)(1)–(2). First, the district court considered Rodgers-Ingersoll’s disobedient and
dangerous conduct during the traffic stop. He did not initially stop after the police attempted to
pull him over. And once pulled over, he reached for a purse containing a firearm, jeopardizing the
safety of his passengers and the officers. Second, the district court considered the crime’s context
within the broader community. Rodgers-Ingersoll’s car was filled with large-capacity magazines
and firearms, some of which he intended to resell. The district court found it concerning that in
cities like Akron and Cleveland, where the murder rate was “on the uptick,” Rodgers-Ingersoll
was “putting guns . . . in the hands of those who should not have them.” R. 38, Pg. ID 181. Lastly,
the court recognized that Rodgers-Ingersoll’s twenty-seven-month sentence for a previous felon-
in-possession offense hadn’t adequately deterred him. In light of these factors, a thirty-six-month
sentence wasn’t unreasonable, much less an abuse of discretion.
-4- Case No. 23-3112, United States v. Rodgers-Ingersoll
In response, Rodgers-Ingersoll argues the court assigned too much weight to his criminal
history. He says his past convictions shouldn’t be a basis for varying upward, since his Guidelines
range already accounts for them in his criminal-history score. See United States v. Boucher, 937
F.3d 702, 711 (6th Cir. 2019). But only one of Rodgers-Ingersoll’s eleven past offenses—the
previous felon-in-possession offense—counted toward his criminal-history score.1 Moreover, the
district court didn’t cite his criminal history as one of the three reasons for the upward variance.
Instead, the district court relied on the fact that Rodgers-Ingersoll’s prior, twenty-seven-month
sentence failed to deter him from committing the same offense again. And the court’s reliance on
that fact was reasonable to effectuate § 3353(a)(2)(B)’s purpose of deterrence.
* * *
Affirmed.
1 Rodgers-Ingersoll’s other offenses were either too old or had occurred before he turned eighteen, and therefore didn’t contribute to his score. See U.S. Sent’g Guidelines Manual § 4A1.1–2.
-5-