NOT RECOMMENDED FOR PUBLICATION File Name: 23a0059n.06
Case No. 22-3076
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 27, 2023 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff - Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) NORTHERN DISTRICT OF OHIO ROBERT BURKEY, ) Defendant - Appellant. ) OPINION )
Before: CLAY, GIBBONS, and McKEAGUE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Defendant Robert Burkey appeals his sentence
of sixty-three months’ imprisonment for possession of a firearm as a prohibited person in violation
of 18 U.S.C. § 922(g)(1), § 924(a)(2). Burkey’s sentence reflects a twenty-two-month upward
variance from the high end of his adjusted Guidelines range of thirty-three to forty-one months’
imprisonment. Burkey argues that the upward variance was both procedurally and substantively
unreasonable.
Because the district court did not commit procedural or substantive error by varying
upward, we affirm Burkey’s sentence.
I.
An Ohio State Highway Patrol Officer pulled over a vehicle driven by Robert Burkey for
a window tint violation. After noticing THC edibles in plain view on the front passenger seat, the
officer initiated a probable cause search of Burkey’s car. In the backseat of the car, the officer
found a backpack containing approximately one gram of cocaine and fentanyl and five grams of No. 22-3076, United States v. Burkey
heroin, a digital scale, and a box of sandwich bags; in the trunk, the officer found a loaded firearm
stored underneath the spare tire. Burkey told the officers that it was his brother’s firearm, and he
did not know it was in the vehicle. Later, however, he stated during his presentence interview that
he had moved his cousin’s firearm to the trunk when he found it because he knew he could not be
around firearms. Despite the discovery of the controlled substances in the backseat, Burkey was
only charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), § 924(a)(2).
Burkey pled guilty to the one-count indictment via a written plea agreement. In the
agreement, the parties stipulated to a base offense level of twenty under United States Sentencing
Guidelines § 2K2.1(a)(4)(A). The government also agreed to recommend a within-Guidelines
sentence, acknowledging that the recommendation would not bind the district court. The parties
agreed that Burkey was eligible for up to a six-level reduction for accepting responsibility and
cooperating with law enforcement. The plea agreement did not contain an appellate waiver.
Consistent with the plea agreement, the Presentence Investigation Report (“PSR”)
calculated Burkey’s base offense level at twenty. However, the PSR departed from the plea
agreement when it recommended a four-level enhancement for possession in connection with
another felony offense because drugs were in the same vehicle as the firearm, pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B). Burkey objected to this enhancement. The PSR also recommended a three-
level reduction due to Burkey’s acceptance of responsibility. The PSR set his total offense level
at twenty-one and a criminal history category V.
On January 19, 2022, the district court held a sentencing hearing. First, the court sustained
Burkey’s objection (to which the government agreed during the hearing) to the four-level
enhancement and concluded that the enhancement did not apply because the “firearm was not in
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immediate close proximity to the drugs given the fact it was in the trunk of the vehicle.” DE 38,
Sentencing Tr., Page ID 184. Next, the government requested a three-level reduction for Burkey’s
acceptance of responsibility, consistent with the PSR, which the court granted. Starting with the
stipulated base offense level of twenty, the court found that Burkey’s adjusted offense level was
seventeen. As it agreed to do in the plea agreement, the government then moved for a three-level
reduction for substantial assistance pursuant to U.S.S.G. § 5K1.1, which the court granted—
adjusting the offense level to fourteen. Burkey’s final adjusted Guidelines range was thirty-three
to forty-one months’ imprisonment.
Before the parties’ arguments, the court acknowledged that it anticipated varying upward
“based on [Burkey’s] record and this history, particularly related to firearms offenses and violent
behavior.” Id. at Page ID 186. The court added—still before argument and allocution—that its
contemplated upward variance was based on Burkey’s “history and his record along with the
offense conduct here in this particular case, not merely the possession of a firearm but possession
of the drugs.” Id. at Page ID 192.
During argument, defense counsel thoroughly narrated elements of Burkey’s life—
including early exposure to drugs due to his crack-addicted mother; his childhood environment
replete with alcohol and drugs; trauma resulting from physical and sexual abuse by his mother’s
boyfriends; movement through various foster homes; and expulsion from school resulting from a
fight in which he attempted to stand up for his assaulted cousin.
Defense counsel proceeded to discuss Burkey’s progress since his 2019 release from
prison. He has a close relationship with his fiancé and their year-old child, as well as with his first-
grade daughter from a previous relationship. Counsel emphasized that Burkey did not contest his
traffic stop or the discovery of the firearm but instead cooperated with law enforcement.
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Next, Burkey spoke and took “full responsibility of everything [he] did in the past.” DE
38, Sentencing Tr., Page ID 199. He asked the court to consider that his actions were influenced
by his lack of a father figure, abandonment by his mother, and abuse, as well as his motivation to
try to care for his siblings. He detailed how his desire to see his children grow up motivated him
to stop committing crimes.
The government requested a high-end Guidelines range sentence because of Burkey’s
“history and characteristics”—namely, his “horrible” criminal conduct, his possession of narcotics
in the same car as a gun, and his recidivism after periods of incarceration. Id. at Page ID 204-05.
The court then weighed the § 3553(a) factors. It first acknowledged the firearm possession
and the existence of drugs in the car, noting its certainty that Burkey “was involved in the sale or
trafficking of these substances by virtue of what was located in the vehicle.” Id. at Page ID 205-
06. Regarding Burkey’s history and characteristics, the court found that “the nature of the
convictions,” or “how quickly they occur after the defendant’s released from custody,” is “telling.”
Id. at Page ID 206. The court highlighted Burkey’s violent behavior while incarcerated and then
reviewed Burkey’s abusive childhood riddled with exposure to alcohol, drugs, and violence. It
then mentioned Burkey’s relationships with his children and his fiancé, his medical and mental
issues, and his receipt of unemployment assistance before being arrested.
Regarding sentencing disparities, the court acknowledged that the average sentence length
imposed for individuals with a final offense level of twenty-one and criminal history category V,
excluding those receiving a 5K-1 substantial assistance reduction, was sixty-eight months. It
further mentioned that Burkey’s sentence would be lower given his substantial assistance.1
1 Although it calculated Burkey’s adjusted offense level—before the three-level departure for substantial assistance—at seventeen, the court mistakenly began its analysis of sentencing disparities by discussing sentencing statistics provided in the PSR, which were based on a different -4- No. 22-3076, United States v. Burkey
The court then addressed the “need for the sentence imposed.” DE 38, Sentencing Tr., at
Page ID 208. It stated that Burkey’s previous sentences “have really not served the [deterrent]
effect” because Burkey was on supervision when he was arrested, evidence suggested that he was
trafficking the drugs found in his car, and he demonstrated “deplorable” behavior while in custody.
Id. at Page ID 209. After referencing “mitigating factors” in Burkey’s favor, it concluded that
those factors, weighed against Burkey’s “violent behavior . . . and the rapid timing” of his
offenses,” justified an upward variance “just basically because of his history. We can’t really
resolve one case before he commits another.” Id. at Page ID 210. Because the court determined
that Burkey “has to be removed from society for a long enough period of time that maybe, just
maybe, he will understand that he cannot be committing these . . . violent crimes with guns[,]” it
imposed a four-level upward variance to make Burkey’s offense level eighteen. Id. at Page ID
214. Within the Guidelines range of fifty-one to sixty-three months, it sentenced Burkey to a term
of sixty-three months and three years of supervised release.
After imposing the sentence, the court recognized that it imposed a “substantial upward
variance,” but emphasized that, “on this record, on this history, the firearms, the willingness to use
them, along with the violence while he’s been incarcerated, the 63 months . . . is necessary to meet
the purposes of the sentencing statute.” Id. at Page ID 215. When the court asked if the parties
had any objections pursuant to United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), Burkey
(higher) offense level. Burkey waives this issue by failing to raise it. Cf. United States v. Crum, 625 F.App’x 304, 308 (6th Cir. 2015) (“We have consistently held . . . that arguments made to us for the first time in a reply brief are waived.”) (quoting Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010)). Even if we chose to address this issue, the mistake is harmless because, as discussed infra at p.17, this is not a typical case involving offenders with similar records and conduct, and it does not appear that the district court relied on the erroneous information. See United States v. Adams, 873 F.3d 512, 518 (6th Cir. 2017) (“If the evidence is false or unreliable, then the district court abused its discretion only if it based the defendant’s sentence on that erroneous information.”). -5- No. 22-3076, United States v. Burkey
objected to the upward variance based on Burkey’s prior criminal record and the nature of his prior
offenses, as well as on his history of incarceration. He argued that the Guidelines already consider
Burkey’s previous criminal history when calculating both in his base offense level and criminal
history category. Further, he argued that the court failed to properly consider Burkey’s change in
behavior and the consideration he earned from the government for his proffers, particularly given
that the instant firearm possession offense did not involve violence.
In response to Burkey’s objection, the court asserted that Burkey had a “willingness to have
and possess firearms and to use them.” DE 38, Sentencing Tr., at Page ID 221. Moreover, the
court believed that Burkey “had drug trafficking paraphernalia in his vehicle[,]” and “[w]e all
know what fentanyl is doing these days.” Id. at Page ID 222. The court stated that it could “quote
[him] statistics from the Northern District” regarding drug overdoses and their resulting
community harm, and that Burkey had demonstrated his willingness to use firearms “quickly after
being released.” Id. The court also returned to the subject of Burkey’s conduct while incarcerated,
asserting that he has “rarely” seen “a defendant with as . . . frequent violations as [Burkey]’s had”
when he was incarcerated. Id. at PageID 223.
Burkey timely appealed.
II.
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
district court substantively errs “when the district court selects the sentence arbitrarily, bases the
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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); 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.”). The abuse-of-
discretion standard means 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.
III.
Burkey challenges the procedural and substantive reasonableness of his sentence. Because
the district court did not commit procedural or substantive error when it imposed a substantial
upward variance to Burkey’s sentence, we affirm the sentence.
A.
Burkey argues that the district court procedurally erred when it varied upward based on
Burkey’s uncharged drug possession because the court did not give him advance notice of its intent
to do so. He also argues that the court procedurally erred by relying on drug fatality statistics to
impose his upward variance without providing details of the statistics or advance notice of its
reliance.
Although reasonable notice is required under Federal Rule of Criminal Procedure 32(h)
before a sentencing court departs under the Guidelines, that notice requirement does not apply
“before a sentencing court elects, on consideration of the factors in 18 U.S.C. § 3553(a), to impose
a sentence that varies from the advisory Guidelines range.” United States v. Coppenger, 775 F.3d
799, 805 (6th Cir. 2015); see also Irizarry v. United States, 553 U.S. 708, 714-15 (2008). However,
a sentencing court is still required to “afford[] a defendant a reasonable opportunity to respond” to
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a court’s intent to vary based on information not contained in a presentence report. Coppenger,
775 F.3d at 804.
Here, Burkey’s notice argument fails for two reasons. First, his presentence report
acknowledged the discovery of drugs in the backseat of his car, and therefore further notice was
not required. Second, he was nevertheless afforded a reasonable opportunity to respond after the
court stated its intent to consider this information. Burkey’s counsel did not respond specifically
to the court’s stated intention, but he did discuss Burkey’s early exposure to drugs as a mitigating
factor to reduce his sentence.
Finally, as the government argues, the court referenced statistics about drug-related
fatalities after imposing the variance, in response to Burkey’s Bostic objection. The court’s
reference to statistics was not part of its § 3553(a) balancing or its imposition of the variance.
Burkey therefore did not need a reasonable time to respond to this additional context from the
court. Thus, the court did not procedurally err when imposing Burkey’s sentence.
B.
Burkey argues that his case was an ordinary “mine-run,” felon-in-possession matter, and
that the district court substantively erred by imposing a substantial upward variance based on
factors that are not unusual nor unaccounted for by the Guidelines. In response, the government
contends that the district court properly considered multiple § 3553(a) factors when it imposed a
sixty-three-month sentence and therefore imposed a substantively reasonable sentence. We agree
with the government because, considering Burkey’s cumulative criminal history, this was not a
routine case and the sentence imposed was reasonable.
“Simply put, a defendant’s sentence is substantively unreasonable if it is too long.” United
States v. Lee, 974 F.3d 670, 676 (6th Cir. 2020) (citing United States v. Rayyan, 885 F.3d 436, 442
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(6th Cir. 2018)). A substantively unreasonable sentence is one whose length is “greater than
necessary” to conform to the sentencing goals set forth in 18 U.S.C. § 3553(a)(2) or is based on a
disproportionate, unreasonable emphasis on some § 3553(a) factors over others. See Perez-
Rodriguez, 960 F.3d at 754 (6th Cir. 2020) (“If the court failed to give ‘reasonable weight to each
relevant factor,’ the sentence that results is substantively unreasonable.”) (quoting United States
v. Boucher, 937 F.3d 702, 707 (6th Cir. 2019)). Relevant here, these sentencing goals include the
need for the sentence “(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the
defendant with . . . correctional treatment in the most effective manner.” 18 U.S.C.
§ 3553(a)(2)(A)-(D). In addition to these sentencing goals, courts must consider the “nature and
circumstances of the offense and the history and characteristics of the defendant;” “the kinds of
sentences available;” “the kinds of sentence and the sentencing range established for . . . the
applicable category of offense . . . as set forth in the [United States Sentencing] guidelines . . ; any
pertinent policy statement . . . ; the need to avoid unwarranted sentencing disparities among
defendants with similar records who have been found guilty of similar conduct; and the need to
provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a).
Our substantive reasonableness analysis begins with the Guidelines range. See United
States v. Haj-Hamed, 549 F.3d 1020, 1025 (6th Cir. 2008). If the district court imposes a sentence
above or below the Guidelines range, then “it must provide ‘sufficiently compelling’ justification”
for the extent of its variance. Lee, 974 F.3d at 676 (quoting Gall, 552 U.S. at 50). “The greater
the variance, the more compelling the justification must be.” Perez-Rodriguez, 960 F.3d at 754
(citing Gall, 552 U.S. at 50). Thus, a district court may vary upward if it “explains how the present
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case is different from the typical or mine-run case that occupies the ‘heartland’ to which the
Commission intends individual Guidelines to apply.” Id. (quoting Rita v. United States, 551 U.S.
338, 351 (2007)). And “to avoid unfair disparities with the typical case, we give closer review to
a variance in a mine-run case.” Id.
The court imposed a substantial upward variance in sentencing Burkey.2 The panel must
therefore consider the court’s explanation of why the case is not a typical case, but rather one
deserving of such a variance. Because this case involves factors removing it from the “heartland”
contemplated by the Guidelines range, and because the court appropriately weighed all statutory
factors required at sentencing, we find the sentence substantively reasonable.
1.
A mine-run case is “a normal case under the governing Guidelines range, which is
calculated to incorporate the crime at issue, the offense level, and the criminal history category
based on prior offenses.” Perez-Rodriguez, 960 F.3d at 754 (quoting Rita, 551 U.S. at 359).
Burkey argues that his case is typical because the Guidelines range incorporates the instant crime
as well as consideration of his prior offenses in his criminal history category and offense level. He
emphasizes that his criminal history category V accounted for his prior offenses, including one
qualifying as a crime of violence and therefore elevating his base offense level by six.
Burkey’s instant crime and his criminal history reflect a typical felon-in-possession case,
were it not for his prior institutional misconduct. His Guidelines range incorporates all of his
previous offenses, including the degree of violence they involved. See Perez-Rodriguez, 960 F.3d
at 754. And most firearms offenders have “at least one prior conviction for a violent offense.” See
2 Both parties and the court agree that the variance was “substantial.” See DE 38, Sentencing Tr., at Page ID 215; see also CA6 R. 32, Redacted Appellee Br., at 35. - 10 - No. 22-3076, United States v. Burkey
U.S. Sent’g Comm’n, What do Federal Firearm Offenses Really Look Like?, 19-20 (July 2022),
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2022/20220714_Firearms.pdf (“A majority (60.6%) of firearms offenders had at least
one prior conviction for a violent offense . . . assault was the most common violent offense[.]”)
(hereinafter “Firearm Offense Report”). Further, the timing of his prior offenses does not make
this case unique, as “federal firearms offenders in general are the most likely to recidivate,” United
States v. Lightning, 835 F.App’x 38, 42 (6th Cir. 2020), his firearm offenses were separated by
two years, and the other violations between these offenses were otherwise unrelated to firearm
possession or use. See U.S. Sent’g Comm’n, Recidivism Among Federal Firearm Offenders,
4 (July 2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2019/20190627_Recidivism_Firearms.pdf). Even though the district court
concluded that controlled substances were in the car during Burkey’s instant offense, a connection
to drugs is not irregular in firearm possession cases. See United States v. Sims, 800 F. App’x 383,
390 (6th Cir. 2020) (Stranch, J., dissenting) (describing a “mine-run firearm possession” as “a
category that routinely includes possessing a gun to protect a drug stash”) (collecting cases).
Because “[a] characteristic shared by 60% to 70% of offenders cannot remove [a defendant’s] case
from the heartland[,]” his instant offense and its circumstances appear unexceptional. Sims, 800
F. App’x at 389 (Stranch, J., dissenting).
However, the district court’s consideration of Burkey’s prison disciplinary record removes
this case from the “heartland.” See Perez-Rodriguez, 960 F.3d at 754. The Guidelines do not
directly encompass Burkey’s past conduct in prison, and the court sentencing Burkey for his 2015
conviction could not account for the infractions he would later commit while incarcerated between
2016 and 2019. Cf. United States v. Thornton, 922 F.2d 1490, 1493–94 (10th Cir. 1991) (“Because
- 11 - No. 22-3076, United States v. Burkey
the guidelines did not address the seriousness of the defendant’s past conduct, for which there were
no convictions, we held the district court properly departed to the next criminal history
category in sentencing the defendant.”) (citing United States v. Keys, 899 F.2d 983, 990-91 (10th
Cir. 1990)). Burkey does not explain how regular or irregular institutional misconduct might be
during incarceration, instead stating only that Burkey’s youth contributed to his actions. The
consideration that the court gave to Burkey’s conduct while incarcerated constituted an appropriate
aspect of weighing of the §3553(a) sentencing factors, as this conduct distinguishes Burkey’s case
from a routine set of circumstances. The panel therefore considers the variance without the “closer
review” that would be given to a mine-run case. See Perez-Rodriguez, 960 F.3d at 754.
2.
The crux of substantive reasonableness analysis focuses on the court’s weighing of the
statutory sentencing factors and their connection to the sentencing goals. In Burkey’s case, it is
uncontested that the court considered all § 3553(a) sentencing factors. But to vary upward the
court emphasized (1) Burkey’s criminal history, (2) his previous institutional misconduct, (3) the
efficacy of Burkey’s prior sentences, and (4) the drugs found in Burkey’s car during the
commission of the instant offense, relative to the sentencing goals of “deterrence, protect[ing] the
public, [and] reflect[ing] the seriousness of the offense.” DE 38, Sentencing Tr., PageID 209. We
find the upward variance adequately justified by the district court and the sentence therefore
substantively reasonable.
Burkey first objects to the district court’s emphasis on his criminal history. Our case law
permits a district court to consider a defendant’s criminal history in its analysis of the § 3553(a)
factors, even though it is already incorporated in the Guidelines range. See Lee, 974 F.3d at 677.
However, to justify a variance on this basis, the criminal history must be “uniquely problematic”
- 12 - No. 22-3076, United States v. Burkey
such that it “demonstrates a specific need for deterrence beyond that captured in the guidelines.”
Id. If that problematic history does not exist, “then some meaningful relationship between the
offense of conviction and the defendant’s alleged likelihood of reoffending is needed.” Id.
“Specific deterrence looks to dissuade an individual defendant from committing future crimes,
while general deterrence aims to have the same effect on ‘the population at large.’” United States
v. Boucher, 937 F.3d 702, 710 (6th Cir. 2019) (citing United States v. Camiscione, 591 F.3d 823,
834 (6th Cir. 2010)).
As discussed, Burkey’s criminal history itself is insufficient to demonstrate a specific need
for deterrence beyond the Guidelines range because the offense level and criminal history category
incorporate his prior offenses and it is not exceptional for firearm offenders to recidivate or have
prior violent offenses. See Firearm Offense Report, 19-20. Thus, there must be “some meaningful
relationship between the offense of conviction and the defendant’s alleged likelihood of
reoffending.” See Lee, 974 F.3d at 677.
However, Burkey’s instant gun possession conviction is still meaningfully connected to
the likelihood that Burkey will attempt to possess another gun again, notwithstanding his status as
a prohibited person, as his prior convictions indicate. Deterring a prohibited person from gun
possession is a valid sentencing consideration. See 18 U.S.C. § 3553(a)(2)(B). “[A] district court
commits no error by focusing on an aspect of an offense under the advisory guidelines and also in
applying the § 3553(a) factors.” United States v. Baines, 651 F. App’x 411, 414 (6th Cir. 2016)
(citing United States v. Lanning, 633 F.3d 469, 478 (6th Cir. 2011)). Combined with its
consideration of other factors, according some weight to Burkey’s criminal history and its
connection to his current firearm possession conviction here was not error.
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Burkey also objects to the district court’s reliance on the presence of controlled substances
in Burkey’s car. However, the presence of controlled substances in Burkey’s car was appropriately
considered here because the district court, within its discretion, found possession of the drugs by
a preponderance of the evidence,3 and “a district court can consider uncharged or dismissed
conduct for sentencing purposes.” United States v. Haj-Hamed, 549 F.3d 1020, 1026 (6th Cir.
2008) (citing United States v. Mendez, 498 F.3d 423, 426-27 (6th Cir. 2007). Because Burkey has
no criminal history involving trafficking or possession of narcotics and was not charged here with
such crimes, however, the court had a less compelling justification to impose a variance based on
Burkey’s drug possession than, for instance, possession suggesting a likelihood of reoffending.
See, e.g. United States v. Robinson, 892 F.3d 209, 214 (6th Cir. 2018) (upholding an upward
variance for possession with intent to distribute fentanyl because the defendant “ha[d] proven over
many . . . years that he would continue to distribute opioids absent a very long period of
incarceration” (internal quotation marks and record citation omitted)). Nevertheless, drug
possession connects to the need for the sentence to reflect the seriousness of the offense, and the
district court considered the drug possession as “part and parcel” of Burkey’s offense. See DE 38,
Sentencing Tr., Page ID 184; cf. United States v. Cross, 121 F.3d 234, 239 (6th Cir. 1997)
(permitting district court’s upward departure based on conduct covered by dismissed count with a
relationship to the charged offense). Accordingly, the district court did not err in considering the
controlled substances in its sentencing calculation.
3 The court also notes that it “ha[d] no doubt that [Burkey] was involved in the sale or trafficking of [controlled] substances by virtue of what was located in the vehicle.” DE 38, Sentencing Tr., Page ID 206. Later, it states that “there is evidence suggesting [Burkey] was trafficking these substances, the heroin, the cocaine, fentanyl.” Id. at Page ID 209. It is not clear, then, if the first reference to trafficking concerned Burkey’s activities in general, or whether the court meant to conclude that it found that Burkey was engaged in drug trafficking during the instant gun- possession offense. - 14 - No. 22-3076, United States v. Burkey
Next, Burkey contends that the court placed undue weight on Burkey’s previous conduct
while incarcerated. However, the district court appropriately emphasized that misbehavior in
prison is relevant to Burkey’s future behavior when serving on supervised release or after his
sentence is complete. Indeed, Burkey’s PSR reflected multiple instances of misbehavior in prison,
including possession of contraband, poor treatment of correctional officers, and fights with other
inmates. This conduct has been considered supportive of a variance when combined with other
relevant considerations. For instance, in United States v. Baines, this court affirmed an upward
variance based on the defendant’s poor prison disciplinary record, gang affiliation, and other
circumstances surrounding his arrest. 651 F. App’x 411, 412, 414 (6th Cir. 2016) (observing that
“Baines’s inability ‘to comply with the rules in prison’ reinforced his pattern of rule breaking that
extended beyond the prison walls.”); cf. United States v. Johnson, 26 F.4th 726, 739 (6th Cir. 2022)
(indicating that the defendant “ha[d] not incurred any convictions or meaningful infractions while
in prison” as support for finding an upward variance unreasonable).
Finally, Burkey argues that his imposed sentence was unfairly disparate, not only to the
average sentences imposed on offenders with similar records who have been guilty of similar
conduct, but also to offenders who have received substantial assistance reductions. However, as
discussed, this is not a routine case involving offenders with similar records and conduct. And
applying a substantial assistance reduction does not prevent a sentencing judge from varying
upward based on other permissible sentencing considerations. See, e.g., United States v. Patel,
457 F. App’x 549, 552 (6th Cir. 2012); United States v. Stoutermire, 516 F. App’x 583, 586 (6th
Cir. 2013).
Imposing a substantial upward variance based exclusively on any of these factors may have
been insufficiently “compelling” to warrant the twenty-two-month variance. Indeed, basing an
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upward variance solely on Burkey’s criminal history or the uncharged drug possession could be
considered inconsistent with treating typical cases the same, as these aspects of his case were not
unusual. See, e.g., United States v. Rattoballi, 452 F.3d 127, 133 (2d Cir. 2006) (“[O]n appellate
review, we will view as inherently suspect a non-Guidelines sentence that rests primarily upon
factors that are not unique or personal to a particular defendant, but instead, reflects attributes
common to all defendants.”). And uniquely poor institutional conduct alone may not support a
four-level variance moving Burkey’s sentence far from the average term of imprisonment for a
federal firearm offender. See Firearm Offense Report at 17 (noting average sentence length for
federal firearm offender in 2021 was forty-two months). However, the district court’s application
of the § 3553(a) factors and the weight given to them, combined with the substantial deference
that a sentencing judge is afforded, supports a finding that the final imposed sentence conforms
with the sentencing goals set forth in 18 U.S.C. § 3553(a)(2). See Gall, 552 U.S. at 51(“[T]hat the
appellate court might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.”).
Since Burkey’s case was not a routine matter and the district court reasonably weighed its
considerations of the statutory sentencing factors, its justifications are “sufficiently compelling to
support the degree of the variance” imposed by the district court. Gall, 552 U.S. at 50. We
conclude that the district court imposed a substantively reasonable sentence.
IV.
Because the district court did not procedurally or substantively err in imposing Burkey’s
sentence, we affirm the sentence.
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