NOT RECOMMENDED FOR PUBLICATION File Name: 23a0143n.06
No. 22-3028
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 24, 2023 DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) DISTRICT OF OHIO LONDON D. VINSON, ) Defendant-Appellant. ) OPINION )
Before: CLAY, WHITE and THAPAR, Circuit Judges.
CLAY, Circuit Judge. Defendant London D. Vinson appeals the district court’s 63-month
within-guidelines sentence imposed after he pleaded guilty pursuant to a plea agreement to being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). For the reasons set forth
below, we AFFIRM the district court’s judgment.
I. BACKGROUND
Factual Background
On January 28, 2021, an Ohio Adult Parole Authority (APA) officer observed Facebook
posts he believed belonged to London Vinson, who was on parole and under supervision following
an aggravated assault conviction. In a Facebook post dated December 21, 2020, Vinson stated he
bought a “Glock with a [ruler clip].” Sentencing Hrg., Trans., R. 34, Page ID # 220. The APA
officer continued to surveil Vinson’s Facebook account, and on January 30, 2021, observed a
Facebook story on Vinson’s account from which the officer inferred that Vinson was at a shooting
range in Las Vegas, Nevada. Then, on February 3, 2021, the APA officer observed a Facebook No. 22-3028, United States v. Vinson
story on Vinson’s account showing a hand holding a semiautomatic pistol which the APA officer
believed to be the hand of Vinson.
Based on these observations, on February 4, 2021, the APA officer and officers assisting
him conducted a parole search of Vinson’s residence. When the officers approached Vinson at his
residence, they noticed a marijuana magazine and a digital scale in plain view, and subsequently
detained and handcuffed Vinson. The officers then performed a security sweep of the house. In
Vinson’s bedroom, the officers found a handgun under the mattress, along with two rounds of
9mm ammunition in the nightstand and two magazines of AR-15 ammunition and a spent .223
caliber shell casing in a duffle bag in the closet. The officers also found another round of 9mm
ammunition and a spent 9mm casing in a side table in the living room of Vinson’s residence.
Vinson admits that an associate purchased the handgun for him at a gun show, and that he
obtained the firearm for the purpose of protection. Vinson does not dispute that the firearm was
shipped and transported in interstate commerce prior to sale. Subsequent examination of the
firearm revealed that it contained a magazine that could hold eighteen rounds of ammunition.
Procedural History
On May 27, 2021, a grand jury in the Northern District of Ohio indicted Vinson on one
count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).
In August 2021, Vinson entered into a written plea agreement with the government and pleaded
guilty pursuant to Rule 11(c)(1)(A) of the Federal Rules of Criminal Procedure.
The plea agreement did not contain any assurances as to the sentencing range to be used,
but the parties stipulated to the computation of the advisory sentencing guidelines base offense
level. The parties agreed that under U.S.S.G. § 2K2.1(a)(6), which applies in cases involving the
impermissible possession of a firearm by a convicted felon, the base offense level of Vinson’s
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crime was 14. The parties further agreed to recommend to the court a two-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a), so long as Vinson’s conduct continued to
reflect his acceptance. No agreement as to the criminal history category was made by the parties.
The terms of the plea agreement make clear that the base offense level recommended in the plea
agreement is not binding on the court. For example, the agreement states that “the advisory
guideline range will be determined by the Court at the time of sentencing, after a presentence report
[“PSR”] has been prepared,” but the “parties agree that no other specific offense characteristics,
Guideline adjustments or Guideline departures apply.” Plea Agreement, R. 16, Page ID # 51–52.
The agreement also contains a clause stating that “Defendant understands that sentencing rests
within the discretion of the Court.” Id., Page ID # 51.
On August 12, 2021, the court conducted a plea hearing. During the plea hearing, the
district court confirmed that Vinson had read and reviewed the terms of the plea agreement with
his attorney, and that he understood the terms of the agreement. The district court then informed
Vinson that the court may consider the recommendations in the plea agreement but is not required
to follow them. The court further stated that if the court chooses to go beyond the recommendation
described in the plea agreement, Vinson has the right to appeal but would not be permitted to
withdraw his plea. Vinson then confirmed his understanding of the plea agreement’s terms.
The court then reviewed specific provisions in the plea agreement highlighting the
guideline recommendations and the factors the court uses to determine sentences. The court noted
that the parties recommended “a base offense level [of] 14 [and a]. . . [t]wo level [reduction] for
acceptance . . . [resulting in] an offense level [of] 12.” Plea Hearing Trans., R. 36, Page ID # 262.
When prompted by the court, the parties stated that they anticipated that Vinson’s criminal history
would place him in criminal history category VI. The court estimated that Vinson would face a
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guideline range of 30 to 37 months based on an offense level of 12 and criminal history category
of VI. The court then reminded Vinson that these calculations were estimates and the final
calculation would be based on a written PSR, which might not be consistent with the parties’
recommendation. The court informed Vinson of his right to object to the PSR, including to the
guideline calculation recommended therein. Vinson confirmed he understood. After the court
reviewed Vinson’s right to appeal, the factual basis of his offense, and the forfeiture of his
constitutional rights, Vinson pleaded guilty, and the court accepted his guilty plea.
The first disclosure of the PSR was filed on October 21, 2021, and mirrored the stipulated
base offense level of 14 in Vinson’s plea agreement. However, the final disclosure of the PSR,
filed on November 17, 2021, incorporated additional information obtained through further
investigation and accordingly recommended the higher base offense level of 20 based on U.S.S.G.
§ 2K2.1(a)(4)(B). The final PSR reasoned that because officers had ascertained that the firearm
Vinson possessed could hold up to 18 rounds of ammunition, making it capable of accepting a
large capacity magazine, the firearm therefore warranted a higher offense level. On November 23,
2021, Vinson filed a Sentencing Memorandum noting that he “and the [g]overnment entered into
a plea agreement concurring that his base offense level is 14,” and “urg[ing] th[e] Honorable Court
to honor the plea agreement and acknowledge the base offense level of 14.” Pet’r’s Sentencing
Mem., R. 21, Page ID # 138–39.
The district court held a sentencing hearing on January 11, 2022. Vinson objected to the
PSR’s base offense level recommendation being higher than the base offense level stipulated in
the plea agreement. The court noted that the plea agreement offers a recommendation, not a
requirement for the court, and subsequently overruled Vinson’s objection. The court noted that
the base offense level of 20 was appropriate in cases involving semiautomatic firearms that can
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accept a large capacity magazine. Accordingly, the court adopted the PSR’s recommendation of
a base offense level of 20 rather than the plea agreement’s base offense level of 14. The court,
through the direction of the parties, applied a downward adjustment of three levels for
the acceptance of responsibility. Following the offense level determination, based on Vinson’s 26
criminal history points, the court found criminal history category VI appropriate. Accordingly,
Vinson’s offense level of 17 and criminal history category of VI yielded a guidelines range of
51 to 63 months’ imprisonment. The court stated that it was considering an upward variance due
to Vinson’s high number of criminal history points; however, the court ultimately did not vary
upwards.
Vinson reiterated his objection and asked the court to impose a sentence within the
guidelines range outlined in the plea agreement, arguing the facts related to the firearm’s
capabilities in the PSR were not available to either party while negotiating the plea agreement, and
the agreement was made based on the information known at the time. Vinson did not dispute the
accuracy of the information used in the PSR. The court, again, overruled the objection. The court
added that, even if the plea agreement’s base offense level had applied, the court would “vary up
substantially because of this record and because of the items [Vinson] possessed.” Sentencing
Hrg., Trans., R. 34, Page ID # 219.
The court proceeded to apply the requisite factors under 18 U.S.C. § 3553(a). First, the
court described the nature of Vinson’s offense which mirrored the events described in the PSR.
As to Vinson’s criminal history, the court noted that Vinson was 31 years old, and had a
“staggering” number of adult convictions including: “obstructing official business, robbery, theft,
receiving stolen property, misrepresenting identity, suspended driver’s license, aggravated theft,
identity fraud, failure to comply with the order/signal of a police officer, resisting arrest, [operating
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a vehicle while intoxicated], driving under suspension, aggravated assault, possession
of shoplifting tools, larceny, and criminal trespass.” Sentencing Hrg., Trans., R. 34, Page ID
# 220–221. Defense counsel noted that, while Vinson’s criminal convictions were extensive,
many were thefts, not crimes “that would threaten any kind of bodily harm to another individual.”
Id., Page ID # 211–212. The court disagreed with this framing of his criminal history, viewing it
instead as continued behavior that harmed society, and proceeded to discuss Vinson’s behavior
while incarcerated, by pointing to Vinson’s thirty-six behavioral violations during his 12-month
incarceration in 2010, and similarly high number of infractions in his 2013 and 2015
incarcerations. The court expressed that the record was expansive given that the sentences
imposed in these instances did not exceed 28 months. This led to the finding by the court that the
punishment Vinson received in the past has not served as a deterrent given his extensive record of
adult convictions and institutional infractions, and the instant offence being committed on parole.
The court also described Vinson’s childhood, noting that he witnessed the abuse of his
mother by his father who suffered mental health issues, and both parents being addicted to drugs.
The court noted Vinson’s report that his mother had passed away when he was 16, and that he had
witnessed violence and drug activity in his neighborhood. The court also noted Vinson’s reports
of sexual molestation, and that he had served as a father figure for his brother’s children, after his
brother was killed in 2018. However, the court met the descriptions of Vinson’s background with
skepticism, noting that Vinson’s statements as to his personal background were not
“corroborated.” Sentencing Hrg., Trans., R. 34, Page ID # 221. The court went on to describe
Vinson’s reportedly positive relationship with his family members, that he had obtained his GED,
and his good physical and mental health.
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The court observed that the average imprisonment range for defendants with similar
offense levels and criminal history categories was 53 months (the median range was 51 months),
and then found that any disparity in Vinson’s sentence was justified by his particularly long
criminal history. The court then sentenced Vinson to 63 months, the high-end of the applicable
51-to-63 guideline range calculated in the PSR.
The court gave the parties the opportunity to object to the sentence at the end of the hearing,
in accordance with United States v. Bostic, 371 F.3d 865 (6th Cir. 2004). Defense counsel objected
“to the sentence that was just tendered by this Court.” Sentencing Hrg., Trans., R. 34, Page ID
# 235. Vinson also asked that the court depart downward, under U.S.S.G. § 5K2.23, to account
for the time that Vinson had served in state custody before he was indicted in this case. Vinson
was placed in state custody on February 4, 2021, purportedly for the same facts and circumstances
of which he was indicted in the district court in May of 2021. The court found Vinson’s request
to be inappropriate since the incarceration was due to a parole violation and not for the federal
offense at issue and credited time served for this instant offense only. Vinson timely appealed.1
II. DISCUSSION
The issues on appeal are whether: (1) the court erroneously deviated from the plea
agreement’s base offense level stipulation, and (2) the court procedurally or substantively erred in
sentencing Vinson.
1 The district court referred to Vinson during the sentencing as a “scourge on the community,” and a “one- man crime spree” on multiple occasions. Sentencing Hrg., Trans., R. 34 Page ID # 218, 226, & 230. Further, in response to Vinson’s statement regarding his integral role in his nephews’ lives, the court asked, “How in the world could these children, what could they learn from this defendant’s history and record?” Id., Page ID # 222. These remarks were also coupled with a consistent skepticism of Vinson’s account of his personal background. Although the tone of some of the court’s language may have been harsh, that does not change the ultimate decision in this case.
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Analysis
1. Binding Nature of the Plea Agreement
Vinson argues that the district court erred in applying the base offense level
recommendation in the PSR because the new information in the PSR report was available at the
time the government entered the plea agreement and so should not be considered when calculating
Vinson’s sentence.2 “Questions regarding the content of the plea agreement are questions of fact,
which this court reviews for clear error.” United States v. Fields, 763 F.3d 443, 453 (6th Cir. 2014)
(citing United States v. Wells, 211 F.3d 988, 995 (6th Cir. 2000)). “Under this standard, a
reviewing court must ask whether on the entire evidence it is left with the definite and firm
conviction that a mistake has been committed.” United States v. West, 962 F.3d 183, 187 (6th Cir.
2020) (internal quotations omitted) (quoting United States v. Orlando, 363 F.3d 596, 603 (6th Cir.
2004)).
The issue in this case turns on whether the plea agreement is governed by Federal Rule
11(c)(1)(B) or Federal Rule 11(c)(1)(C), the subsections of the Federal Rules of Criminal
Procedure that dictate whether the agreement is binding. See United States v. Kemper, 908 F.2d
33, 35 (6th Cir. 1990) (analyzing Federal Rule 11(e)(1)(A)–(C), currently codified as Federal Rule
11(c)(1)(A)–(C)). Defendant correctly concludes that that under Federal Rule 11(c)(1)(B) the
court is not required to follow the base offense level stipulated in the plea agreement. See id.
However, if the plea agreement is governed by Federal Rule 11(c)(1)(C), and the court rejects the
plea agreement’s recommendation, “the court shall afford the defendant an opportunity to
withdraw the defendant’s guilty plea.” Id. at 37 (citing to Federal Rule 11(e)(4) in its reasoning,
2 We note that at the district court, Vinson argued that the information in the PSR was not available to the parties when they executed the plea agreement. Sentencing Hrg., Trans., R. 34, Page ID # 210–11.
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currently codified as Federal Rule of Criminal Procedure 11(c)(5)(B)). The government concedes
that only Rule 11(c)(1)(A) is mentioned in the plea agreement with no mention of the subsections
that delineate the binding nature of the agreement. However, the government argues that “the
agreement’s remaining nonbinding language, as understood and explained by the Court and
acknowledged by all parties, made clear that the parties intended to proceed under subsection
(c)(1)(B).” Resp’t’s Br., ECF No. 39, 24. We agree.
Plea agreements “are contractual in nature” and subject to “traditional principles of contract
law.” Fields, 763 F.3d at 453 (quoting United States v. Robison, 924 F.2d 612, 613 (6th Cir.
1991)). When determining whether the government breached a plea agreement, the Court looks
to “what the defendant reasonably understood” when he entered into the agreement. United States
v. Herrera, 928 F.2d 769, 771 (6th Cir. 1991). “The most persuasive evidence of what a defendant
reasonably appreciated as his bargain is found in the plain language of the court-approved
agreement.” Fields, 763 F.3d at 453 (internal quotations omitted) (quoting United States v. Phibbs,
999 F.2d 1053, 1081 (6th Cir. 1993)). For “imprecisions or ambiguities” in plea agreements, the
trial court should hold the government to “a greater degree of responsibility than the defendant.”
Id. (quoting United States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992)).
In this case, no ambiguity exists as to the nonbinding nature of the plea agreement. It is
clear based on the written agreement and the court’s colloquy that the parties intended the
agreement to be governed by Federal Rule 11(c)(1)(B). The agreement states that the “the advisory
guideline range will be determined by the Court at the time of sentencing, after a presentence report
(“PSR”) has been prepared,” and “sentencing rests within the discretion of the Court.” Plea
Agreement, R. 16, Page ID # 51–52. Vinson argues that the terms “stipulate” and “agreed” used
throughout the agreement evidence the binding nature of the agreement. However, the terms
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simply indicate that the parties reached an understanding as to the base offense level, not that the
court was bound by any agreement made by the parties.3 Further, the district court repeatedly
reminded Vinson at the plea hearing that the plea agreement serves as a recommendation but not
a requirement. The court stated that if it does reject the recommendation of the plea agreement,
Vinson would have the right to appeal but would not be permitted to withdraw his plea. Vinson
confirmed his understanding of the court’s statements, and “[w]here the court has scrupulously
followed the required procedure, the defendant is bound by his statements in response to that
court’s inquiry.” Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986) (internal quotations
omitted) (quoting Moore v. Estelle, 526 F.2d 690, 696–97 (5th Cir. 1976)). It is well established
on the record that a reasonable defendant would understand that the base offense level
recommendation stipulated in this plea agreement did not bind the court. See Herrera, 928 F.2d
at 771.
Vinson does not argue that the parties agreed to exclude the fact of the large-capacity
magazine after negotiation or that inclusion of the fact in the PSR was inaccurate. Instead, Vinson
asserts that the court should have made an erroneous sentencing calculation, based on incomplete
facts or the government’s oversight or acquiescence, instead of following the recommendation in
the PSR that accurately reflected the case’s circumstances. As discussed above, the agreement
was unambiguously nonbinding, and the court did not err in adopting the PSR’s recommendation
in its sentencing decision.
3 The government adhered to its end of the bargain and did not argue in favor of the higher offense level, noting instead that it “enter[ed] into the plea agreement in good faith” and “defer[ed] to the Court on sentencing.” Sentencing Hrg., Trans., R. 34, Page ID # 218–19.
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2. Procedural and Substantive Reasonableness
Criminal sentences are reviewed for procedural and substantive reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A district court can
commit procedural error by “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.” Id. A
sentence will be found to be substantively unreasonable “when the district court selects the
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
§ 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” United
States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (internal quotations omitted) (quoting United
States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007)); see United States v. Perez-Rodriguez, 960
F.3d 748, 753 (6th Cir. 2020) (“In short, procedural review of a sentence concerns the propriety of
the factors that go into a sentence; substantive review assesses the reasonableness of the sentence
that results.”). Under the abuse of discretion standard, a defendant’s argument must go beyond
“asserti[ng] that the district court should have balanced the § 3553(a) factors differently.” Sexton,
512 F.3d at 332.
a. Procedural Reasonableness
Vinson argues that the court failed to use the base offense level stipulated in the plea
agreement, constituting a violation of procedural due process. As discussed above, this is incorrect
and no violation by the court exists. Vinson also contends that the court procedurally erred when
it focused exclusively on Vinson’s criminal history and did not articulate how his history differed
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from others in the same criminal category. However, we find that the district court imposed a
procedurally reasonable sentence and did not err in its evaluation of Vinson’s criminal history.
“A sentence is procedurally unreasonable if the district court fails to consider the applicable
Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead
simply selects what the judge deems an appropriate sentence without such required consideration.”
United States v. Mayberry, 540 F.3d 506, 517–18 (6th Cir. 2008) (internal quotations omitted)
(quoting United States v. Jones, 489 F.3d 243, 250–51 (6th Cir. 2007)). “[P]rocedural
reasonableness does not require that a district court provide a rote listing or some other ritualistic
incantation of the relevant § 3553(a) factors.” United States v. Kroffke, 776 F. App’x 304, 308
(6th Cir. 2019) (quoting United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007)). “An
explanation is typically adequate if it addresses the factors from 18 U.S.C. § 3553(a) that are
relevant to the district court’s sentencing decision.” Id. (quoting United States v. Solano-Rosales,
781 F.3d 345, 351 (6th Cir. 2015)). The district court must also “provide some indication that the
court considered the defendant’s arguments in favor of a lower sentence and the basis for rejecting
such arguments.” United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008).
The guideline for 18 U.S.C. § 922(g)(1) offenses is found in U.S.S.G. § 2K2.1. Subsection
2K2.1(a)(4)(B) provides a base offense level of 20 if the offense involves a “semiautomatic firearm
that is capable of accepting a large capacity magazine” and the defendant was a person prohibited
from possessing such firearm at the time of the offense. In this case, the district court applied the
offense level of 20, based on the PSR’s findings that Vinson was prohibited from possessing a
firearm and Vinson’s weapon accepted a large capacity magazine. These facts are not objected to
or in dispute. The court imposed a 63 month sentence that is within the guideline range applicable
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to Vinson, based on the base offense level of 20, and it did not err in choosing a sentence at the
high-end of the applicable range based on Vinson’s criminal history.
Vinson does not dispute the events articulated by the court as to his offense and ownership
of the firearm. In reviewing Vinson’s criminal history, the court did not characterize Vinson’s
history as “overly violent,” as Vinson suggests, but rather, emphasized the habitual nature of his
criminal activity. With over 20 convictions at the age of 31 years old, the court was not incorrect
in its characterization. The court is permitted to focus on deterrence when evaluating § 3553(a)
factors. See Solano-Rosales, 781 F.3d at 355. Although skeptical of Vinson’s arguments, the
court did consider Vinson’s personal background but ultimately found that the factors did not
outweigh his extensive criminal history. The court properly cited Vinson’s history of criminal
activity and his poor disciplinary record when previously incarcerated as evidence that a long
incarceration was necessary to deter Vinson from future criminal activity and protect the public
from future crimes.
Throughout the court’s explanation, the court made clear that it was selecting a sentence at
the high-end of the applicable range to provide adequate deterrence, promote respect for the law,
protect the public, and to reflect the seriousness of Vinson’s offense. Because the district court
here sufficiently considered the § 3553(a) factors and adequately explained why it chose a within-
guidelines, 63-month sentence, we find that Vinson’s sentence was not procedurally unreasonable.
b. Substantive Reasonableness
“A sentence is substantively unreasonable if the district court selects a sentence arbitrarily,
bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives
an unreasonable amount of weight to any pertinent factor.” United States v. Lapsins, 570 F.3d
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758, 772 (6th Cir. 2009) (internal quotation omitted) (quoting United States v. Conatser, 514 F.3d
508, 520 (6th Cir. 2008)).
The Supreme Court has “never doubted the authority of a judge to exercise broad discretion
in imposing a sentence within a statutory range.” United States v. Booker, 543 U.S. 220, 233
(2005). With that in mind, this Court presumes that within-guidelines sentences are reasonable.
See United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc). While a district court
may not give any one sentencing factor an unreasonable amount of weight, the court “may place
great weight on one factor if such weight is warranted under the facts of the case.” United States
v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013). Thus, “this Court has recognized that the manner in
which a district court chooses to balance the applicable sentencing factors is beyond the scope of
the Court's review.” Id.
In Vinson’s opening brief, he furnishes only one sentence in support of his argument:
“Here, the trial judge double counted Mr. Vinson’s criminal history and focused almost exclusively
upon that single factor.” Pet’r’s Br., ECF No. 34, 13. Vinson fails to rebut the presumption of
reasonableness that applies to the district court’s sentencing determination. As summarized above,
the court thoroughly analyzed and appropriately weighed the factors under § 3553(a) in concluding
that Vinson merited a sentence of 63 months. Thus, the district court imposed a substantively
reasonable sentence.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s judgment.
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