United States v. Shawn Summers

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 2, 2022
• Docket: 20-4148
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0314n.06

Case No. 20-4148

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED ) Aug 02, 2022 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff - Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN SHAWN SUMMERS, ) DISTRICT OF OHIO Defendant - Appellant. ) ) OPINION

Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. After a domestic dispute, Shawn Summers left his

residence with a gun and fired it multiple times in a residential area. He was arrested and charged

with being a felon in possession. At sentencing, the district court varied upward five levels,

changing Summers’s offense level from 17 to 22. But as it did so, the court’s description of its

actions didn’t match the sentence. The district court stated that it varied upward “four levels,”

instead of five. Summers appealed. We agreed the math didn’t add up and remanded for

clarification. Sticking by its sentence, the district court explained that it merely misspoke, not

miscalculated, when it said “four levels” instead of five.

Summers appealed again. This time he challenges the procedural and substantive

reasonableness of his sentence. For the reasons below, we affirm. Case No. 20-4148, United States v. Summers

I.

One September afternoon in 2019, Summers and his fiancée got into an argument. As the

fight escalated, Summers threw objects through the window of their home. Worse yet, he then

stormed outside and fired his gun in the air and then marched down the street and fired a few more

rounds for good measure. Terrified, a few of his neighbors alerted authorities. Police arrested him

a short time later and recovered the loaded gun and another loaded magazine.

This wasn’t Summers’s first arrest. Years before, he had spent five years in prison for an

aggravated burglary conviction that involved the use of a firearm. This old conviction made him a

felon in possession, and a federal grand jury charged him accordingly under 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). Summers pleaded guilty. His plea agreement included three relevant

provisions: (1) an agreed upon offense level of 17; (2) a pact that neither the government nor

Summers would suggest a departure or variation from the applicable Guidelines range; and

(3) Summers’s reservation of his right to appeal an above-Guidelines sentence.

The Probation Office took the parties’ agreement into account in its presentence report

(PSR). That report, too, recommended an offense level of 17. It then set Summers’s criminal

history category at III. Together, the offense level and criminal history landed Summers a

Guidelines range of 30-to-37 months. But in the Probation Office’s view, this range didn’t account

for the seriousness of Summers’s crime. So it laid out two avenues the district court might use to

impose a higher sentence. The first: an upward departure based on Summers’s use of a firearm

during the offense. See U.S.S.G. § 5K2.6. The second: an upward variance based on the nature and

circumstances of the offense. See 18 U.S.C. § 3553(a).

This brings us to the sentencing hearing, which the district court held by video at

Summers’s request. Following the PSR, the district court took the offense level of 17, criminal

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history category of III, and acceptance of responsibility into account, which resulted in a

Guidelines range of 30-to-37 months’ imprisonment. The district court then moved onto the PSR’s

recommendation that it depart or vary upward. Despite referencing the departure provision—

U.S.S.G. § 5K2.6—the district court stressed that any upward movement would be “a variance,

even though [the PSR] reference[d] [] the Guidelines.” (R. 38, Sent’g Hrg. Tr., PageID 172.) After

it described the recommendation, the district court allowed both parties to present arguments.

Consistent with the plea agreement’s provision that the parties stick to the relevant range,

Summers, his counsel, and his fiancée all spoke and argued for a sentence at the low end of the

range. But the government pushed back, arguing that this wasn’t a regular felon-in-possession

charge because it involved firing a weapon in a residential area. In the government’s eyes, those

facts, along with Summers’s previous gun-crime conviction, warranted a high-end Guidelines

sentence.

With all arguments on the table, the district court set Summers’s sentence. It started with

the 18 U.S.C. § 3553(a) factors. It considered the facts, then Summers’s criminal history and his

other characteristics, as well as the nature of the crime and the need to protect the public. With this

background in mind, the district court decided to “follow” the “probation department’s

recommendation,” increased the offense level from 17 to 22, and imposed a sentence of 63 months’

imprisonment. (Id. at PageID 190–92.) Although it referenced U.S.S.G. § 5K2.6 in passing, the

district court called the sentence a “substantial” “four-level upward variance.” (Id. at PageID 191–

192.) Summers objected to the upward variance but nothing else.

Summers filed his first appeal, arguing that the district court miscalculated his Guidelines

range when its actions (applying a five-level variance) didn’t match its words (mentioning a four-

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level variance). The government didn’t fight the appeal, asking instead that we remand so the

district court could clarify its calculation. We granted its request.

On remand, the district court clarified that its “four-level” remark was a “misstate[ment],”

not a miscalculation. (R. 41, Order, PageID 201.) As proof, the district court pointed out that it

committed to following the PSR’s recommendation of a five-level variance and 63-month

Summers appealed again.

II.

In this round, Summers challenges the procedural and substantive reasonableness of his

sentence. We consider each in turn.

A.

We review Summers’s procedural-reasonableness arguments first. “A district court’s

sentencing decision should explain how and why it arrives at a sentence.” United States v. Gardner,

32 F.4th 504, 529 (6th Cir. 2022). So as a matter of procedure, a district court must calculate the

proper Guidelines range, weigh the permissible § 3553(a) factors, and give an adequate

explanation for why it chose the sentence. United States v. Rayyan, 885 F.3d 436, 440 (6th Cir.

2018).

Summers makes several procedural arguments for the first time on appeal. He contends

that the district court miscalculated his sentence and then erred when it released an order rather

than holding a rehearing on remand; created confusion about whether it was applying a departure

or variance; and violated his procedural rights when it held the sentencing conference over video

call. Because he makes these arguments for the first time on appeal, we review for plain error.

United States v. Parrish, 915 F.3d 1043, 1048 (6th Cir. 2019).

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Under this standard, Summers must show an error that is plain and affects substantial

rights. United States v. Russell, 26 F.4th 371, 376 (6th Cir. 2022). If he does so we can grant relief,

but only if the error “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (alteration and citation omitted). “Plain error is, as it should be, a difficult hurdle

to clear.” United States v. White, 920 F.3d 1109, 1114 (6th Cir. 2019). As a result, we will find

plain error “only in exceptional circumstances and only where the error is so plain that the trial

judge . . . w[as] derelict in countenancing it.” United States v. Gardiner, 463 F.3d 445, 459 (6th

Cir. 2006) (quoting United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994)).

The Miscalculation. Summers contends the district court miscalculated his sentence. As

evidence, he points to the discrepancy between the district court’s five-level increase and its “four-

level” statement. But as the remand made clear, no error (much less a plain one) occurred.

To start, the district court followed the Probation Office’s recommendation to a tee. That

recommendation suggested varying upward from an offense level of 17 to 22 and imposing a 63-

month sentence. At the sentencing hearing, the district court announced it would adopt this

recommendation. And its sentence aligns perfectly. Indeed, the district court mentioned an offense

level of 22 several times. Of course, its statement that it would apply a “four-level upward

variance” may have muddied the waters a bit. But that’s why we remanded. And on remand, the

district court clarified that it meant to vary upwards five levels—just as the Probation Office

recommended. Weighing its clarification and the whole of the transcript against the “four-level”

statement, we conclude no miscalculation occurred.

At most, the district court misstated one part of its sentence. But this slip of the tongue

doesn’t amount to an error, much less a reversible one. And without a miscalculation, no

resentencing hearing was necessary. See 18 U.S.C. § 3742(f)(1) (requiring an appellate court to

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remand for resentencing only when the district court’s sentencing was “in violation of law or

imposed as a result of an incorrect application of the sentencing guidelines”); cf. United States v.

Nichols, 897 F.3d 729, 738 (6th Cir. 2018) (acknowledging district courts’ discretion when

imposing a corrected sentence to do so with “a brief order, a hearing that resembles a de novo

sentencing proceeding, or anything in between” so long as the corrected sentence is “procedurally

and substantively reasonable”).

The Variance. Next, Summers claims the method the district court used to impose the

upward variance “[was] abnormal and unclear.” (Appellant Br. at 15.) To back up his claim, he

points to the instances when the district court mentioned both the departure and variance as reasons

for the higher sentence.

In some cases, we have found procedural error when the district court’s reasoning left us

unsure “whether [it] intended to grant a Guidelines departure or variance.” United States v. Grams,

566 F.3d 683, 687 (6th Cir. 2009) (per curiam). Here, no such plain error occurred. True, the

district court referenced the U.S.S.G. § 5K2.6 departure and the Guidelines at various points

during the hearing. But the first time it did so, it described the PSR’s recommendation for the

parties. After that, it mentioned the Guidelines twice more—once to explain that the Guidelines

would support an increase and once to summarize its explanation. Compare those three references

to the district court’s repeated assertions that it imposed a variance, not a departure, and it becomes

clear that the district court intended to impose a variance. Early on, the district court stressed that

if it imposed an above-Guidelines sentence “it would be a variance”—just like the PSR

recommended. (R. 38, Sent’g Hrg. Tr., PageID 172.) After that, it made repeated references to its

“substantial upward variance.” (Id. at PageID 192.)

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What’s more, Summers’s counsel understood the district court to impose a variance at the

hearing. (See id. at PageID 173 (“I appreciate you bringing the attention of the potential for an

upward variance.”); id. at PageID 193 (“No objections other than the upward variance objection,

Your Honor.”).) So viewed as a whole, the record makes clear that the district court imposed a

variance. For this reason, no plain error occurred.

The Video Conference. Recall that Summers requested that the district court conduct his

sentencing hearing through a video call. (R. 26, Minutes, PageID 118.) Despite this request,

Summer now contends that the video conference violated his rights because it made “private

attorney-client communication impossible” and may “hinder parties from effectively confronting

witnesses and presenting evidence.” (Appellant Br. at 23.) The government argues that by

requesting and consenting to video sentencing, Summers waived his ability to challenge the video

sentencing. True, “waiver is the intentional relinquishment or abandonment of a known right,” and

we thus do not consider waived arguments. United States v. Sheppard, 149 F.3d 458, 461 n.3 (6th

Cir. 1998).

But it appears that Summers isn’t objecting to the use of video per se, just that the video

technology hindered his ability to communicate effectively with his counsel. So we don’t think he

waived this challenge. In any event, when the district court asked if Summers had any objections,

his counsel raised only one (not to the video) and then Summers spoke to the court as well. Because

Summers didn’t object to the video shortcomings below, we review for plain error.

Summers’s main point is that he and his counsel didn’t have a separate line to communicate

privately. As his only support, Summers disingenuously quotes from the hearing when his counsel

said, “But I can’t talk to my client because of video.” (Appellant Br. at 23.) But that quote omits

the last part of the sentence: “But I can’t talk to my client because of video, but it’s obvious that

7 Case No. 20-4148, United States v. Summers

he wants to make some statement, Judge.” (R. 38, Sent’g Hrg. Tr., PageID 193.) The court then

let him do just that. So it’s not clear what rights, if any, the video deprived Summers of.

Summers also offers up skeletal claims about confronting witnesses and presenting

evidence, two things not relevant to his sentencing hearing. And he does so without citing any

caselaw.

We find no error with the district court’s use of video during sentencing.

B.

Finding the sentence procedurally sound, we now turn to Summers’s challenge to the

substantive reasonableness of his sentence. The “touchstone” of our substantive review is “whether

the length of the sentence is reasonable in light of the § 3553(a) factors.” United States v. Tate,

516 F.3d 459, 469 (6th Cir. 2008). We conduct this review for an abuse of discretion. United States

v. Robinson, 892 F.3d 209, 213 (6th Cir. 2018). But because the district court’s consideration of

the § 3553(a) factors “is a matter of reasoned discretion, not math,” we are “highly deferential” in

our review. Rayyan, 885 F.3d at 442.

Summers contends that his sentence was “greater than necessary” to achieve the sentencing

goals of the § 3553(a) factors. In particular, Summers argues that the district court focused too

much on some factors—like the nature of the crime and his criminal history—and not enough on

others—like sentencing disparities and mitigating factors like his personal characteristics. He even

accuses the district court of not considering “all of these critical factors.” (Appellant Br. at 27.)

The record rebuts his claim. The district court discussed the nature of the crime, Summers’s

history and characteristics, his criminal history, his family, his substance abuse, his education, the

sentencing disparity, and the need to protect the public from gun violence. Then, in explaining its

upward variance, the district court reasoned that Summers’s record with guns and his dangerous

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decision to fire one in a residential area justified a higher sentence. “We see no basis for second

guessing” the district court’s explanation of its upward variance based on the § 3553(a) factors.

Rayyan, 885 F.3d at 443.

At bottom, Summers’s argument “boils down to an assertion that the district court should

have balanced the § 3553(a) factors differently.” United States v. Sexton, 512 F.3d 326, 332 (6th

Cir. 2008). But as we’ve explained before, that’s not our job. See id. The district court’s discussion

was comprehensive and far from an abuse of discretion.

III.

We are unpersuaded by the challenges to the procedural and substantive reasonableness of

the sentence. The district court’s sentence is affirmed.