United States v. Jered Lee Woody

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 21, 2023
• Docket: 22-3241
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0096n.06

Case No. 22-3241

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Feb 21, 2023 ) UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF JERED LEE WOODY, ) OHIO Defendant-Appellant. ) OPINION )

Before: SUTTON, Chief Judge; SILER and MATHIS, Circuit Judges.

MATHIS, Circuit Judge. Jered Woody appeals his 46-month sentence for being a felon

in possession of a firearm as procedurally and substantively unreasonable. For the reasons stated

below, we affirm.

I.

On July 15, 2020, a police officer in Cleveland, Ohio, observed a vehicle parked too far

away from the curb. Woody exited the vehicle and stood in the street. The officer observed what

appeared to be a firearm on the driver’s seat in the vehicle as Woody exited. The officer

approached and announced himself; Woody ran away. After a short chase, the officer apprehended

Woody. Upon questioning from the officer, Woody admitted owning the firearm. The officer

recovered a loaded Sig Sauer, 9-millimeter pistol, from the vehicle. Case No. 22-3241, United States v. Woody

A federal grand jury indicted Woody for one count of being a felon in possession of a

firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Woody pled guilty

pursuant to a plea agreement. Per the plea agreement, Woody waived his right to appeal unless

his sentence exceeded the advisory Sentencing Guidelines range. Additionally, the Government

agreed in the plea agreement to: (1) a three-level reduction of Woody’s offense level for acceptance

of responsibility, (2) an additional two-level downward departure, and (3) recommend a sentence

within the advisory Guidelines range.

At the change of plea hearing, the district court, after being reminded that Woody was

being prosecuted in state court for another gun possession-related offense that occurred after

Woody was arrested in this case, expressed that “it’s deeply troubling to me that here he gets

arrested with a gun and then the next thing you know he’s released on bond and he’s out there with

another gun.” [R. 40, PageID 172–74].

On January 26, 2022, the district court commenced the sentencing hearing. After

reviewing the Presentence Investigation Report, the court found Woody’s advisory Guidelines

range was 30 to 37 months’ imprisonment based on Woody having an offense level of 15 and a

criminal history category of IV. Neither party objected to the Guidelines calculation.

The district court informed the parties that it was considering an upward variance or

departure because this was Woody’s fifth firearm-related offense and Woody had a history of

running from law enforcement. The court also expressed concern that Woody had received

noncustodial sentences for his previous offenses and was arrested for an additional firearm offense

while released on bond for this firearm offense. The sentencing hearing was then continued. The

district court issued an order giving notice, pursuant to Federal Rule of Criminal Procedure 32(h),

that it was considering a possible upward departure or variance.

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On March 15, 2022, the district court completed the sentencing hearing. The district court

reiterated that because Woody had an offense level of 15 and criminal history category of IV, the

Guidelines range was 30 to 37 months. Again, neither party objected.

The district court heard arguments from both parties as to why it should not sentence

Woody above the Guidelines range. Among other arguments, Woody argued that an above-

Guidelines sentence was unwarranted because he had been shot twice in the past and suffers

ongoing disabilities from those experiences. He further argued that he possessed the gun because

he was scared after being shot the previous times and that he ran from the police because he fears

them.

The district court responded to Woody’s arguments by pointing out that based on his logic,

Woody would continue to carry guns in the future, and in fact, he was arrested again for carrying

a gun one year after he was arrested in this case. The district court also explained its concern that

Woody had four previous firearms-related convictions between 2012 and 2021, including a

conviction for firing a gun into a crowd. Further, the district court expressed disapproval that

Woody was repeatedly given noncustodial sentences.

The district court then considered the 18 U.S.C. § 3553(a) factors. After reiterating the

nature and circumstances of the offense, the district court discussed Woody’s history and

characteristics. The court reviewed Woody’s criminal history. Among other things, the court

noted that Woody has mental health challenges, faced abuse in his childhood, and has a history of

substance abuse. Additionally, the court discussed Woody’s medical issues, including

complications from being shot twice. The court expressed its concern that the previous sentences

Woody received had proven ineffective in deterring him from participating in criminal conduct.

Further, the court discussed sentencing disparities and the average length of imprisonment for

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offenders with offense levels of 17 being 37 months. Ultimately, the court announced that it

decided on an upward variance and sentenced Woody to 46 months’ imprisonment.

On March 17, 2022, the district court entered its judgment and statement of reasons. In the

statement of reasons, the district court indicated that it granted an upward variance due to the

defendant’s “[l]engthy criminal history of firearm charges[,]” to reflect the seriousness of the

offense, to promote respect for the law, to provide just punishment for the offense, to afford

adequate deterrence to criminal conduct, and to protect the public from further crimes by Woody.

[R. 31, PageID 143–44].

II.

Woody challenges his above-Guidelines sentence as both procedurally and substantively

unreasonable. Reasonableness is assessed under a deferential abuse-of-discretion standard.

United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010); see also United States v. Nunley, 29

F.4th 824, 830 (6th Cir. 2022). We first consider whether the district court committed a procedural

error. See United States v. Wright, 747 F.3d 399, 413 (6th Cir. 2014). If we determine that the

sentence is procedurally reasonable, we then assess whether the sentence is substantively

reasonable. Id. We review the district court’s legal conclusions de novo and its findings of fact

for clear error. See Nunley, 29 F.4th at 830 (citing Battaglia, 624 F.3d at 351).

A.

As an initial matter, we must determine whether the district court’s above-Guidelines

sentence was a “variance” or a “departure.” This is a question of law that we review de novo.

United States v. Denny, 653 F.3d 415, 419 (6th Cir. 2011).

We have previously explained the difference between a departure and a variance:

“Departure” is a term of art under the Guidelines and is distinct from “variance.” A Guidelines “departure” refers to the imposition of a -4- Case No. 22-3241, United States v. Woody

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 district court’s statements at the sentencing hearing and in the statement of reasons

show that Woody’s above-Guidelines sentence was a variance. We first consider the oral

sentencing proceedings to determine whether the district court intended to vary or depart. See

Denny, 653 F.3d at 420. At sentencing, the court reviewed the § 3553(a) factors in describing its

reasoning and reaching its sentencing determination. It discussed the nature and circumstances of

the offense, the history and characteristics of the defendant, and the need for the sentence imposed

to promote respect for the law and deter the defendant. See 18 U.S.C. § 3553(a). The court

specified Woody’s advisory Guidelines range and explained why an upward variance was

appropriate. The court did not reference any Guidelines provision as a basis for the above-

Guidelines sentence; further evidence that it was not a departure.

The district court’s written statement of reasons further confirms that it varied above the

advisory Guidelines range. The district court specified that it granted an upward variance due to

the history and characteristics of the defendant, including a lengthy criminal history of firearms

charges, to reflect the seriousness of the offense, to promote respect for the law, and to provide

just punishment for the offense; to afford adequate deterrence to criminal conduct; and to protect

the public from further crimes of the defendant. -5- Case No. 22-3241, United States v. Woody

Woody points to the fact that the district court gave notice to the parties that it was

considering an upward departure as support for his argument that the court departed above the

Guidelines range. In actuality, the district court gave notice that it was considering an upward

departure or variance. And as we explained above, the court decided on a variance at sentencing.

B.

A sentence is procedurally unreasonable “if the district court fails to calculate (or

improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider

the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately

explain the chosen sentence—including an explanation for any deviation from the Guidelines

range.” United States v. Gates, 48 F.4th 463, 473 (6th Cir. 2022) (quoting United States v. Nichols,

897 F.3d 729, 737 (6th Cir. 2018) (internal alterations, citations, and quotations omitted)).

Woody’s sentence was procedurally reasonable. The district court properly calculated the

Guidelines range at 30 to 37 months’ imprisonment based on the charged offense, Woody’s

criminal history, and appropriate offense-level reductions. Clearly, the court did not treat the

Guidelines as mandatory because it imposed a variance from the Guidelines. Woody has not

identified any factual findings that were clearly erroneous. And the court considered the § 3553(a)

factors and explained its reasons for varying.

Woody argues that his sentence is procedurally unreasonable because the district court

over-emphasized his criminal history at sentencing. But that is a substantive challenge to his

sentence, not a procedural challenge.

C.

Substantive reasonableness focuses on whether a “sentence is too long (if a defendant

appeals) or too short (if the government appeals).” United States v. Rayyan, 885 F.3d 436, 442

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(6th Cir. 2018). “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. 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. “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 v. United States, 552 U.S. 38, 51 (2007).

In assessing substantive reasonableness, we “consider[] the totality of the circumstances,

including ‘the extent of any variance from the guidelines range.’” United States v. Johnson, 26

F.4th 726, 736 (6th Cir. 2022) (quoting United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)).

The degree to which the sentence deviates from the Guidelines range is important, and there must

be a “justification [that] is sufficiently compelling to support the degree of variance.” United

States v. Perez-Rodriguez, 960 F.3d 748, 754 (6th Cir. 2020) (quoting Gall, 552 U.S. at 50). “The

greater the variance, the more compelling the justification must be.” Id. When varying outside of

the Guidelines range, the district court should explain “how the present case is different from the

typical or mine-run case that occupies the heartland to which the Commission intends individual

Guidelines to apply.” Id. (citations and quotations omitted). When a case is typical or mine-run,

we conduct a closer review of the district court’s justifications for the variance. Id.

We make no determination of whether this is a mine-run case because even under closer

review, the district court’s reason for the nine-month upward variance is sufficiently compelling.

Based on the circumstances of Woody’s offense and his criminal history, the district court

reasonably determined that a 46-month sentence was necessary to deter Woody, as prior sentences

had been ineffective. Further, Woody had exhibited a willingness to use firearms in previous

incidents and he repeatedly fled from law enforcement such that the court reasonably found that

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giving him a higher sentence was necessary to protect the public. And even while his case was

pending before the district court, he was arrested for unlawfully possessing a firearm. The court

considered each of the other pertinent § 3553(a) factors. The court fashioned Woody’s sentence

on an individualized basis and the court did not abuse its discretion in finding that a divergence

from the Guidelines range was warranted under the circumstances. Perez-Rodriguez, 960 F.3d at

756.

Woody’s sentence was 46 months, whereas the Guidelines range for the offense was 30 to

37 months. This creates an upward variance of roughly 25% from the high end of the range. We

have upheld upward variances based on the defendant’s criminal history and recidivism concerns

in previous cases. See United States v. Lightning, 835 F. App’x 38, 43 (6th Cir. 2020) (discussing

multiple cases where larger variances were upheld based on a defendant’s criminal history); United

States v. Warren, 771 F. App’x 637, 642–43 (6th Cir. 2019) (“[W]e have affirmed the imposition

of sentences that deviate from the Guidelines to some degree based upon a defendant’s criminal

history[.]”). Thus, while the justifications in this case may not have been sufficient to warrant a

more significant variance, they were sufficient to warrant the variance applied here.

Woody argues that his sentence was unreasonable because the district court placed too

much weight on his criminal history. We disagree. “A district court’s attach[ing] [of] great weight

to a few factors does not constitute reversible error, and inevitably, [n]ot all § 3553(a) factors are

important in every sentencing; often one or two prevail, while others pale.” United States v.

Dunnican, 961 F.3d 859, 881 (6th Cir. 2020) (alterations in original; internal citations and

quotations omitted). Woody’s criminal history was the most significant consideration at

sentencing because Woody had committed another firearm offense while released on bond and he

had shown he was a danger to the public through his prior criminal conduct as reflected in his

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criminal history. See id. (finding that the defendant’s criminal history was reasonably the most

significant consideration in sentencing when the defendant had a history of violent crimes and had

reoffended in a similar manner quickly upon being released from custody).

The district court also considered Woody’s mitigating circumstances including Woody’s

personal history, life circumstances, and mental health. Based on the totality of the circumstances,

the sentence was substantively reasonable.

III.

For the reasons stated above, we affirm the imposed sentence.

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