NOT RECOMMENDED FOR PUBLICATION File Name: 24a0345n.06
No. 23-3854 FILED Aug 06, 2024 UNITED STATES COURT OF APPEALS KELLY L. STEPHENS, Clerk FOR THE SIXTH CIRCUIT
) UNITED STATES OF AMERICA, ON APPEAL FROM THE ) Plaintiff -Appellee, UNITED STATES DISTRICT ) v. COURT FOR THE ) NORTHERN DISTRICT OF ) JARON SOLOMON, OHIO ) Defendant -Appellant. ) OPINION )
Before: GRIFFIN, NALBANDIAN, and BLOOMEKATZ, Circuit Judges.
BLOOMEKATZ, Circuit Judge. Jaron Solomon pleaded guilty to being a felon in
possession of a firearm. As part of his plea agreement, both he and the government agreed to
recommend a within-Guidelines sentence. The district court calculated Solomon’s Guidelines
range at 30 to 37 months, then varied upward. It sentenced Solomon to 46 months in prison. On
appeal, Solomon claims that the district court miscalculated the Guidelines range and imposed an
excessive sentence for his purportedly “mine-run” felon-in-possession offense. Appellant’s Br. 31.
But the district court did not err in calculating the applicable Guidelines range, nor did it abuse its
discretion when it relied on Solomon’s prior violent offenses involving firearms to vary upward.
We affirm.
FACTUAL BACKGROUND
On the evening of December 27, 2022, police detectives observed the occupants of an SUV
engaged in multiple drug transactions at two different gas stations. During the ensuing traffic stop,
the detectives saw marijuana in plain view in the center console. When they asked the vehicle’s No. 23-3854, United States v. Solomon
occupants to step out of the car, Solomon vacated the front passenger seat and admitted that he
was carrying a firearm. The detectives seized the gun, a Taurus G3 9mm, along with a baggie of
marijuana and $600 cash. Law enforcement also overheard a jail call in which Solomon said to his
significant other that drugs remained in the car, belonged to him, and he was selling them.
Solomon couldn’t legally possess the loaded Taurus G3 9mm at the time because he’d
previously been convicted of four felony offenses. 18 U.S.C. §§ 922(g)(1), 924(a)(8). Solomon
possessed a gun while he committed two of those prior felonies. Solomon’s most recent offense
was his most serious—he was incarcerated for over six years for shooting a man in the lower body
during a robbery and had been released from community control just six months before the instant
offense.
On March 23, 2023, the government indicted Solomon for being a felon in possession of a
firearm. 18 U.S.C. §§ 922(g)(1), 924(a)(8). Solomon agreed to plead guilty on May 26, 2023. The
parties stipulated to an offense level of 15, which included an enhancement for Solomon’s
unlawful possession of a firearm in connection with selling drugs, as well as a three-level reduction
for acceptance of responsibility. The plea agreement did not address Solomon’s criminal history
and made clear that the district court retained the discretion to impose a sentence outside the
advisory Guidelines range. The agreement further stated that the parties would not advocate for a
departure or variance from the Guidelines range.
At sentencing, Solomon objected to the Guidelines range calculated in the presentence
report. The presentence report recommended an offense level of 15, consistent with the plea
agreement, and a criminal history score of seven—which corresponds to criminal history category
IV. The resulting Guidelines range: 30 to 37 months. Solomon argued that the presentence report
should not have increased his criminal history score for his prior conviction for marijuana
2 No. 23-3854, United States v. Solomon
possession in Garfield Heights Municipal Court; without it, his criminal history category would
have been III, and his Guidelines range 24 to 30 months. The district court rejected Solomon’s
Guidelines calculation argument and adopted the 30-to-37-month advisory range.
Next, the district court told the parties that it was considering a “possible upward variance”
based on several paragraphs in the presentence report that detailed prior offenses involving the use
of a firearm and Solomon’s institutional disciplinary report from a prior sentence. R. 29, PageID
183–84. After hearing the parties’ arguments, the district court concluded that Solomon was on “a
different level than other convicted felons who are simply possessing guns.” Id, PageID 199. It
emphasized that this was Solomon’s “third firearms-related conviction” and that his history
demonstrated that “he not only will possess guns but that he will use them and use them to shoot
another individual.” Id. Ultimately, the court relied on Solomon’s “record of violence and history
with firearms” to justify a two-level upward variance and 46-month sentence. Id., PageID 199–
200. The court explained that this sentence was “necessary to protect the public,” “provide
adequate deterrence,” and “meet all the other purposes of the sentencing statute.” Id., PageID 200.
Solomon objected to the variance at the end of the sentencing hearing. This appeal followed.
ANALYSIS
Solomon makes four arguments about his sentence on appeal: three on procedural
reasonableness and one on substantive reasonableness. First, he revives his objection to the district
court including his minor misdemeanor marijuana possession as part of his criminal history.
Second, he says that the district court relied on incorrect facts about his criminal history to support
its sentencing decision. Third, he claims that he was denied reasonable notice of the prospect of
an upward variance. And fourth, he attacks the substantive length of his 46-month sentence. None
of Solomon’s arguments warrant reversal.
3 No. 23-3854, United States v. Solomon
I. The Marijuana Possession Conviction
Solomon argues that he cannot receive a criminal history point for his prior minor
misdemeanor marijuana possession conviction.
A conviction for a minor marijuana possession misdemeanor counts toward a defendant’s
criminal history score unless an exception applies. United States v. Stubblefield, 265 F.3d 345, 347
(6th Cir. 2001). Solomon bears the burden to show that his challenged conviction falls under an
exception. United States v. Kitchen, 428 F. App’x 593, 599 (6th Cir. 2011).
Solomon invokes the exception within U.S.S.G. § 4A1.2(c)(2), which provides that
sentences for several enumerated offenses (such as “[m]inor traffic infractions,” “[p]ublic
intoxication,” and others) as well as other “similar” offenses “are never counted” for purposes of
calculating a defendant’s criminal history.
Solomon’s argument on this front is two-fold. First, he makes an argument about the
language of the ordinance itself, which states that a conviction under the ordinance “does not
constitute a criminal record.” Appellant’s Br. 27 (quoting Garfield Heights Ordinance
§ 513.03(e)). Solomon insists that this text indicates that his marijuana possession misdemeanor
triggers the § 4A1.2(c)(2) exception. Second, he uses a multi-factor “common sense approach”
described in the Guidelines commentary to argue that his marijuana possession misdemeanor is
“similar” to two offenses enumerated in § 4A1.2(c)(2): minor traffic infractions and public
intoxication. Appellant’s Br. 27–29 (quoting U.S.S.G. § 4A1.2 cmt. n.12(A)).
Solomon raised the textual argument before the district court. But he did not explicitly
compare his marijuana possession misdemeanor to any of the enumerated offenses to argue that
his conviction is similar, and he did not allude to the common sense approach at all. The
government, however, seems to believe that Solomon did make this second argument below. See
4 No. 23-3854, United States v. Solomon
Appellee’s Br. 20 (“Before the district court, Solomon . . . argued that his prior conviction was
‘similar to’ the enumerated offenses of U.S.S.G. § 4A1.2(C).”). It does not ask us to review this
criminal-history challenge for plain error. And “even though plain-error review might have been
available for this claim,” we generally do not apply the plain-error standard “unless requested to
do so by one of the parties.” United States v. Williams, 641 F.3d 758, 763 (6th Cir. 2011).
Accordingly, we review both of Solomon’s arguments de novo. See United States v. Gould, 30
F.4th 538, 542 (6th Cir. 2022).
As to Solomon’s argument about the ordinance text, the Guidelines specify that all
“[s]entences for misdemeanor and petty offenses are counted” unless expressly excluded. U.S.S.G.
§ 4A1.2(c). And we have previously rejected similar arguments that a state or locality’s treatment
of an offense as non-criminal means a conviction for that offense can’t be counted toward a
defendant’s criminal history. For example, in Stubblefield, we indicated that a marijuana
possession conviction under Ohio Revised Code § 2925.11, which uses language identical to that
of the ordinance here, see id. § 2925.11(D), does not qualify for the § 4A1.2(c)(2) exception. 265
F.3d at 347. Solomon makes no attempt to distinguish Stubblefield. Thus, we hold that the
ordinance language by itself does not qualify for the § 4A1.2(c)(2) exception.
To the extent Solomon is claiming that his marijuana possession misdemeanor is the kind
of local ordinance violation under § 4A1.2(c)(2) that can never be counted, he overlooks the caveat
that immediately follows in the Guidelines. True, “[l]ocal ordinance violations” appears in the list
of offenses that do not count—“except those violations that are also violations under state criminal
law.” U.S.S.G. § 4A1.2(c)(2); see also id. cmt. n.12(B). Solomon was convicted under a local
ordinance that overlapped completely with a state statute, so this claim is unavailing. See Ohio
Rev. Code § 2925.11(C)(3)(a), (D).
5 No. 23-3854, United States v. Solomon
Solomon’s second argument is that his marijuana possession misdemeanor is similar to a
minor traffic infraction or public intoxication, offenses enumerated in § 4A1.2(c)(2). To show that
marijuana possession is like the enumerated offenses, Solomon invokes the “common sense
approach” described in the Guidelines commentary, which “includes consideration of [five]
relevant factors.” Appellant’s Br. 27–28 (quoting U.S.S.G. § 4A1.2 cmt. n.12(A)). These factors
are:
(i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.
U.S.S.G. § 4A1.2 cmt. n.12(A).1 But Stubblefield states that “the exceptions set forth in § 4A1.2(c)
do not apply” to misdemeanor marijuana possession convictions like Solomon’s. 265 F.3d at 347.
Although Stubblefield does not expressly address the enumerated offenses that Solomon invokes
or apply the common sense approach, its blanket denial undermines his point.
But even if Stubblefield didn’t bind us, Solomon’s argument faces other hurdles. His
argument boils down to the claim that violating the local marijuana possession ordinance is similar
to a minor traffic infraction or public intoxication offense because the punishment (and, by
implication, their perceived seriousness) is largely the same: a minor fine and no jail time. But
these are only two of the factors that the commentary lists.2 And we have recognized in several
1 We look to Guidelines commentary where “it serves only to interpret the Guidelines’ text, not to replace or modify it.” United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019); see also United States v. Riccardi, 989 F.3d 476, 479–80 (6th Cir. 2021); United States v. Merritt, 102 F.4th 375, 378 n.3, 386 n.10 (6th Cir. 2024). We believe that is the case here. 2 To be sure, Solomon mentions the other three factors listed by the Guidelines commentary. But he simply asserts without explanation that the “elements of the offense and the level of culpability involved are also similar.” Appellant’s Br. 28. And he fails to explain how changes in the law or public perception toward marijuana are connected to “the degree to which 6 No. 23-3854, United States v. Solomon
unpublished opinions involving marijuana possession offenses under Ohio law that these
similarities are outweighed by significant differences between the offenses. See United States v.
Foster, 832 F. App’x 401, 406–07 (6th Cir. 2020) (marijuana possession is not similar to minor
traffic infractions, public intoxication, loitering, and vagrancy); United States v. Tatum, 743 F.
App’x 589, 593–94 (6th Cir. 2018) (marijuana possession is not similar to the enumerated offenses
in § 4A1.2(c)(2)); United States v. Collins, 600 F. App’x 433, 436–37 (6th Cir. 2015) (rejecting a
comparison of marijuana possession to minor traffic infractions and disorderly conduct on plain
error review).
For instance, the local ordinance contains an explicit mens rea element, 3 while traffic
infractions are usually strict liability offenses—suggesting the former carries a higher level of
culpability. See Collins, 600 F. App’x at 436; see also State v. Campbell, 691 N.E.2d 711, 714
(Ohio App. 1997) (“Most traffic violations are minor misdemeanors and, in addition, are strict
liability crimes.”), abrogated on other grounds by State v. Weitbrecht, 715 N.E.2d 167 (1999).
Marijuana possession also involves different offense elements from either a traffic violation or
public intoxication. A person’s decision to carry marijuana (a controlled substance) is not the same
as a decision to overindulge in alcohol (not a controlled substance)—and even less like speeding
or other traffic infractions. See United States v. Roy, 126 F.3d 953, 955 (7th Cir. 1997).
For these reasons, no Circuit has held that marijuana possession misdemeanors like this
one are similar to any of the § 4A1.2(c)(2) exceptions. See United States v. Foote, 705 F.3d 305,
308 (8th Cir. 2013) (collecting cases). We see no reason to break new ground today. The district
the commission of the offense indicates a likelihood of recurring criminal conduct.” See id. at 28– 29. 3 “No person shall knowingly obtain, possess or use a controlled substance or a controlled substance analog.” Garfield Heights, Ohio, Ordinance § 513.03(a) (emphasis added). 7 No. 23-3854, United States v. Solomon
court was not wrong to add a criminal history point for Solomon’s marijuana possession
misdemeanor.
II. Solomon’s Prior Firearm-Related Convictions
The district court rested its upward variance, in part, on its finding that this was Solomon’s
“third firearm-related offense.” R. 29, PageID 197. Solomon argues that he had only one—not
two—prior firearm-related convictions. A sentence is procedurally unreasonable if the district
court imposed it based on clearly erroneous facts. United States v. Wittingen, 519 F.3d 633, 637
(6th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Gale, 468
F.3d 929, 934 (6th Cir. 2006)).
Solomon’s argument fails because the presentence report confirms the district court’s
finding—that he had two prior gun-related felonies. In 2011, Solomon was convicted for attempted
felonious assault after he possessed a handgun while beating a man. And in 2015, Solomon shot a
man during a robbery, resulting in a felonious assault conviction. Solomon did not object to these
facts in the presentence report, so the district court was entitled to rely on them. Fed. R. Crim. P.
32(i)(3)(A); see United States v. Adkins, 429 F.3d 631, 632–33 (6th Cir. 2005). Accordingly, the
district court did not err when it sentenced Solomon based on its finding that “[t]his is his third
firearm-related offense.” R. 29, PageID 197.
III. The Notice Issue
Solomon next contends that the district court did not provide “reasonable notice” of its
intent to vary upward before sentencing him. Appellant’s Br. 33–34. He objected to the upward
variance near the conclusion of his sentencing hearing. On appeal, the parties dispute whether that
objection was specific enough for us to review the issue for abuse of discretion, as opposed to plain
error. United States v. Taylor, 800 F.3d 701, 713 (6th Cir. 2015); see United States v. Bostic, 371
8 No. 23-3854, United States v. Solomon
F.3d 865, 871 (6th Cir. 2004). Solomon’s notice argument is unavailing under either standard of
review.
As Solomon correctly points out, it is procedurally unreasonable for a district court to vary
upward based on facts that “came as a surprise,” thereby depriving the defendant of a reasonable
opportunity to respond. United States v. Coppenger, 775 F.3d 799, 804 (6th Cir. 2015). But that’s
not what happened here. The district court relied on material in Solomon’s presentence report to
support the upward variance. United States v. Hinton, No. 21-3166, 2021 WL 5505498, at *4 (6th
Cir. Nov. 24, 2021) (“[The defendant’s] argument ultimately fails because ‘the facts or issues’ that
the district court based its determination on were outlined in . . . the Presentence Investigation
Report . . . .”). Solomon was thus well-aware of all the relevant facts the district court relied on.
And he knew that the district court retained discretion to sentence him outside the advisory
Guidelines range. Therefore, Solomon was able to address the specifics of his criminal and
institutional history and argue against the upward variance at his sentencing hearing. Because there
were no “relevant issues that [Solomon] did not anticipate or have the opportunity to address,”
there was no surprise, and his reasonable notice argument fails. See United States v. Rossi, 422 F.
App’x 425, 433 (6th Cir. 2011).
IV. Substantive Reasonableness
Solomon says the district court ignored mitigating factors and imposed a substantively
unreasonable sentence for his “mine-run” felon-in-possession offense. Appellant’s Br. 33. Our
review is for abuse of discretion, though there is no presumption of reasonableness for Solomon’s
above-Guidelines sentence. United States v. Lee, 974 F.3d 670, 676 (6th Cir. 2020) (citing Gall,
552 U.S. at 51). Resentencing is required if the district court “placed too much weight on some of
the 18 U.S.C. § 3553(a) factors and too little on others,” resulting in a sentence that “is too long.”
9 No. 23-3854, United States v. Solomon
See United States v. Johnson, 95 F.4th 404, 418 (6th Cir. 2024) (brackets omitted) (quoting United
States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)). That said, “we must afford due deference”
to a proper exercise of the district court’s discretion under § 3553(a), even if we might have
imposed a different sentence. United States v. Herrera-Zuniga, 571 F.3d 568, 591 (6th Cir. 2009).
The district court acted within its discretion when it emphasized Solomon’s criminal
history as it balanced the relevant § 3553(a) factors. See United States v. Dunnican, 961 F.3d 859,
881 (6th Cir. 2020). As discussed above, Solomon possessed a firearm during two of his prior
felony offenses, both of which were violent. Though he didn’t shoot the victim of his 2011
attempted felonious assault offense, Solomon orchestrated a beating that was severe enough that
the victim lost two teeth and possibly fractured his left eye socket. Solomon’s 2015 felonious
assault conviction was much worse. He shot a person who he was trying to rob, illustrating his
willingness to use a gun offensively—as opposed to just illegally possessing one. The district court
also weighed the fact that Solomon committed the instant offense so quickly after his most recent
community control sanction and disclaimed knowledge that he couldn’t possess a firearm. In short,
the district court did not abuse its discretion in concluding that Solomon’s history of violent
firearm-related conduct implicated a strong need to promote respect for the law, protect the public,
and provide specific deterrence. 18 U.S.C. § 3553(a)(2)(A)–(C); see United States v. Lanning, 633
F.3d 469, 474–76 (6th Cir. 2011).
Contrary to Solomon’s assertions, the district court didn’t overstate the seriousness of his
felon-in-possession offense. As he conceded in the plea agreement, his illegal firearm possession
was connected to another felony. So the district court wasn’t off-base when it said he was selling
drugs “with a loaded gun, fully prepared to use it,” thereby distinguishing his conduct from a
simple felon-in-possession offense. R. 29, PageID 194. And the court didn’t ignore the relevant
10 No. 23-3854, United States v. Solomon
mitigating factors. It acknowledged Solomon’s disadvantaged upbringing and educational efforts,
as well as his physical and mental health issues. Those aspects of Solomon’s history and personal
characteristics simply didn’t carry as much weight when compared to the details of his criminal
history.
Solomon argues that there is nothing to distinguish his case from “a normal case under the
governing Guidelines range,” so his above-Guidelines sentence cannot withstand closer review.
Appellant’s Br. 30–31 (quoting United States v. Perez-Rodriguez, 960 F.3d 748, 754 (6th Cir.
2020)); see United States v. Boucher, 937 F.3d 702, 708 (6th Cir. 2019). We disagree. While it’s
true that an undetailed reference to a defendant’s criminal history cannot justify an upward
variance, district courts are permitted to consider the “exceptional severity” of a defendant’s past
conduct to set him apart from other offenders in the same criminal history category. See United
States v. Lightning, 835 F. App’x 38, 42 (6th Cir. 2020). And here, the district court reasonably
concluded that Solomon’s proven willingness to offensively shoot another person “places him in
a different level than other[s] who are simply possessing guns.” R. 29, PageID 199. Therefore, the
court had the discretion to vary upward, at least to some extent.
To protect against unwarranted sentencing disparities, we must examine whether the
district court deviated from the Guidelines to a reasonable degree. Boucher, 937 F.3d at 708.
Doubling or tripling the Guidelines-recommended sentencing range based on the defendant’s
criminal history is rarely appropriate in a typical felon-in-possession case. See Lightning, 835 F.
App’x at 43. On the other hand, we have affirmed variances larger than the one here (close to a
25% increase) for felon-in-possession defendants who have displayed a pattern of violent conduct
involving firearms. Id. (collecting cases). In fact, Solomon’s case resembles the substantive
reasonableness issue in United States v. Jeter, 721 F.3d 746 (6th Cir. 2013). Much like the
11 No. 23-3854, United States v. Solomon
defendant in Jeter, Solomon’s felon-in-possession conviction followed prior offenses involving
the use or threatened use of firearms. In both cases, the advisory Guidelines range was 30 to 37
months and the district courts imposed relatively modest upward variances after concluding that
relevant the aggravating factors significantly outweighed the mitigating factors. Id. at 757–58.
Particularly after considering that Solomon’s felon-in-possession offense came after he’d already
shot another person, we cannot conclude that his 46-month sentence is any less reasonable than
the 45-month sentence we approved in Jeter. Id.
CONCLUSION
We affirm Solomon’s 46-month sentence as procedurally and substantively reasonable.