NOT RECOMMENDED FOR PUBLICATION File Name: 26a0081n.06
No. 25-3320
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 10, 2026 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) DISTRICT OF OHIO TYRIQUE K. DAVIS, ) Defendant-Appellant. ) OPINION )
Before: CLAY, KETHLEDGE, and BUSH, Circuit Judges.
CLAY, Circuit Judge. Defendant Tyrique Davis appeals from the district court’s
judgment sentencing him to a 48-month term of imprisonment for Bank Larceny under 18 U.S.C.
§§ 2113(b) and 2. For the reasons set forth in this opinion, we AFFIRM the district court’s
judgment.
I. BACKGROUND
A. Factual Background
On October 3, 2023, Davis was visiting Ohio from his home in Houston, Texas. He and
two other men, all wearing masks, undertook to steal a Huntington Bank automated teller machine
(ATM) from a Giant Eagle supermarket in Summit County. The three men attached a chain to a
stolen pickup truck and, equipped with a crowbar, wrapped the chain around the ATM as well.
They used the pickup truck and chain to break open the ATM. A Springfield Township Police
Officer interrupted the incident, and the three men fled with cash boxes from the ATM. The No. 25-3320, United States v. Davis
Officer chased the men on foot and apprehended Davis, and additional Officers retrieved three
cash boxes, which contained a total of $45,346. The ATM was damaged, costing Huntington Bank
$28,733.
Davis’ background presents some mitigating facts. Davis was 26 years of age at the time
of sentencing. He experienced abuse by his biological mother when he was a child and struggles
with mental health, in part as a result of that abuse. When he was eight years old, Davis was
diagnosed with attention deficit hyperactivity disorder and bipolar disorder, and he began using
marijuana at age 14 but was sober for two years beginning in 2022. Davis did not graduate high
school. At the time of his arrest for the offense in this case, Davis had been working at L&L Auto
in Houston, Texas, for nine months. Otherwise, his only reported employment history entails two
months at Texas Concrete in 2019.
The ATM incident on October 3, 2023, was not Davis’ first encounter with law
enforcement. Davis’ criminal history extends back over a decade, to when he was 14 years old.
He has prior juvenile convictions for property damage, marijuana possession, burglary, and
evading detention. He has prior adult convictions for assault of a public servant, burglary,
aggravated assault with a deadly weapon, and, notably, attempted theft of an ATM.
The public servant assault conviction was based on an incident in 2016 wherein Davis
threatened to throw rocks at Correctional Officers who sought to apprehend him. After one of the
Officers administered oleoresin capsicum spray and the Officers were trying to restrain him, Davis
struck one of the Officers in the face, causing “pain, discomfort, and redness to the facial area.”
PSR, R. 20, PageID #110. Davis violated his probation for that conviction and ultimately served
a two-year term of imprisonment.
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Davis’ conviction for aggravated assault with a deadly weapon was based on conduct that
transpired in 2019. According to the complainant in that case, Davis fired a gun at the complainant
multiple times because the complainant refused to join Davis’ gang. Davis served a three-year
term of imprisonment for that offense.
Later in the same year, an Uber driver observed two men, one of whom turned out to be
Davis, with a stolen truck, attaching a chain to an ATM machine and unsuccessfully attempting to
steal it. When Houston Police Officers pursued the two men, they fled on foot. Police “later
determined that this offense was gang related.” Id. at PageID #112. Davis served a three-year
term of imprisonment for that offense, concurrently with his imprisonment for the preceding
aggravated assault.
B. Procedural Background
On September 5, 2024, a federal grand jury charged Davis in a one-count indictment for
Bank Larceny, in violation of 18 U.S.C. §§ 2113(b) and 2, based on Davis’ conduct on October 3,
2023. Davis ultimately pled guilty without a plea agreement.
The presentence investigation report (PSR) calculated a base offense level of six under
United States Sentencing Guidelines (U.S.S.G.) § 2B1.1(a)(2). It then applied a six-level
enhancement under U.S.S.G. § 2B1.1(b)(1)(C) for a total loss in excess of $40,000, including
$28,733 to repair the ATM and $45,346 taken from the ATM. Davis had submitted a written
statement accepting responsibility, apologizing, and stating that he wanted “to turn [his] life
around” and take advantage of the Bureau of Prison’s educational and vocational offerings. Id. at
PageID #106. For those reasons, the PSR decreased Davis’ offense level by two, making his total
offense level 10.
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The PSR calculated a criminal history score of 12, resulting in a criminal history category
of V. It gave Davis no points for juvenile offenses, three points for the public servant assault, three
points for the burglary, three points for the aggravated assault with a deadly weapon, and three
points for the attempted ATM theft.
The maximum term of imprisonment for Davis’ violation of 18 U.S.C. § 2113(b) was 10
years, and the guidelines range was 21 to 27 months. The PSR identified age as a factor that might
warrant departure from the guidelines range, under U.S.S.G. § 5H1.1, and history and
characteristics of the defendant as potential grounds for a variance. It additionally noted that
pursuant to 18 U.S.C. § 3553(a)(6) the district court should “consider the need to avoid
unwarranted sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” Id. at PageID #122. In the preceding five years, courts had sentenced
69 defendants with final offense levels of 10 and criminal history categories of V under U.S.S.G.
§ 2B1.1. For the 65 (94%) of them who received a term of imprisonment, the average length of
imprisonment was 19 months, and the median was 21 months.
Davis’ sentencing memorandum emphasized Davis’ acceptance of responsibility, young
age, particularly at the time of his prior criminal conduct, potential for rehabilitation, and other
mitigating factors. It discussed Davis’ upbringing, mental health challenges, interest in further
treatment, experiences with drug and alcohol abuse at a young age, educational challenges, and
interest in obtaining a GED. It also underscored the non-violent nature of the larceny offense.
Davis objected to the potential inclusion of the $45,346 that Davis and the other participants had
carried away from the ATM in the calculation of loss, arguing that he had not obtained any
proceeds from the machine.
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At Davis’ sentencing hearing, the district court rejected Davis’ argument that the money
that the ATM had contained should be excluded from the amount of loss. Davis had “clearly
intended to take the cash, whatever the number might have been, from the machine.” Sentencing
Tr., R. 33, PageID #188. Furthermore, Davis and the other two participants did in fact take the
cash from the ATM into their possession and only found themselves emptyhanded because the
police intervened. Therefore, the district court confirmed that Davis’ offense level was 10. It
additionally confirmed that Davis’ criminal history category was V and that the resulting
guidelines range was 21 to 27 months.
Defense counsel argued that Davis had been honest and respectful throughout the
proceedings, that he had accepted full responsibility, and that he had a fraught background and had
“been quite a bit off course in his life to date.” Id. at PageID #192. Davis’ offense had not involved
directly interacting with a victim or “traumatizing a bank teller,” Davis had stayed out of trouble
while incarcerated for this offense, and he wanted to focus on his education and vocational training.
Id. at PageID #193. In his brief allocution, Davis accepted responsibility and apologized.
The government recommended an above-guidelines sentence of three years due to Davis’
criminal history, including his most recent offense, which resembled this one and for which Davis
had spent three years in prison.
The district court proceeded to assess the 18 U.S.C. § 3553(a) factors. It described the
nature and circumstances of the offense and then turned to Davis’ history and characteristics. It
noted Davis’ history of violence, including convictions for assault of a public servant and
aggravated assault with a deadly weapon, and his prior conviction for “nearly the identical theft
scheme here.” Id. at PageID #198. Davis had been released from imprisonment for the prior
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attempted ATM theft just over a year before he committed the present one. Furthermore, Davis
had not historically “done well while on probation.” Id.
Regarding sentencing disparities, the district court concluded that Davis’ sentence would
be “substantially higher” than the average or median sentence that the PSR indicated due to Davis’
violent history, previous terms of imprisonment, and the similarities between the instant offense
and Davis’ most recent prior offense. Id. at PageID #199.
Finding that Davis’ preceding three-year term of imprisonment had not accomplished the
purposes of just punishment, deterrence, protecting the public, reflecting the seriousness of the
offense, and improving the defendant’s conduct or condition, the district court selected a four-year
term. The district court acknowledged the magnitude of that variance and that Davis had not used
or threatened violence in committing the instant offense but concluded that “the facts and
circumstances [including the involvement of law enforcement] clearly indicate[d] this defendant
[was] a danger to the community.” Id. at PageID #200. The district court additionally ordered a
three-year term of supervised release, a $100 special assessment, and $28,733 in restitution to
Huntington Bank. Davis objected to the upward variance and timely appealed.
II. DISCUSSION
The task of a sentencing court is to “impose a sentence sufficient, but not greater than
necessary,” to achieve the statutory purposes of sentencing, namely:
(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 needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . .
18 U.S.C. § 3553(a). Additionally, the court must consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the kinds of sentences available and
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advised under the guidelines, pertinent policy statements, the need to avoid unwarranted sentence
disparities, and the need to provide restitution to victims. Id.
Davis challenges the procedural and substantive reasonableness of his sentence, but he
does not clarify which of his arguments are procedural or substantive. We understand the
procedural components of Davis’ appeal to be that the district court miscalculated the guidelines
range based on the amount of loss, impermissibly varied from the guidelines based on facts about
him and his offense that the guidelines already captured, failed to account for age as a mitigating
factor, and erred by concluding that Davis is a danger to the community. We understand the
substantive component to be that the district court improperly balanced the § 3553(a) factors by
weighing criminal history, deterrence, and protecting the public too heavily and by weighing
mitigating factors and the need to avoid sentencing disparities too lightly.
A. Standard of Review
We review the reasonableness of a sentence imposed by a district court “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “An abuse of
discretion occurs when the district court relies on clearly erroneous findings of fact, uses an
erroneous legal standard, or improperly applies the law.” United States v. Wilson, 75 F.4th 633,
636 (6th Cir. 2023) (quoting United States v. Elias, 984 F.3d 516, 520 (6th Cir. 2021)).
B. Procedural Reasonableness
Procedural errors are those pertaining to the steps the district court takes to craft a
defendant’s sentence. A sentence might be procedurally unreasonable if the district court
improperly calculates the guidelines range, treats the guidelines range as mandatory, ignores the
18 U.S.C. § 3553(a) factors, bases the sentence on clearly erroneous facts, considers impermissible
sentencing factors, fails to address the defendant’s non-frivolous arguments, or imposes the
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sentence without adequate explanation. Id.; United States v. Rayyan, 885 F.3d 436, 440 (6th Cir.
2018); United States v. Rosenbaum, 585 F.3d 259, 266 (6th Cir. 2009). Davis contends that the
district court miscalculated his guidelines range, considered impermissible factors in deciding to
vary from it, failed to consider all of his mitigation arguments, and made an erroneous finding of
fact regarding the danger that Davis poses to the community.
Loss Amount
Davis makes two arguments that the district court miscalculated his guidelines range by
increasing his offense level by six based on the amount of loss his offense caused. First, he
contends that the guidelines do not define “loss” except in commentary and that the district court
erred by relying on the commentary. Second, Davis argues that he could not have known exactly
how much money the ATM contained and never possessed those contents, so the district court
should not have included that $45,346 in its calculation of intended loss. We review a district
court’s methodology for calculating the amount of loss under the guidelines de novo, but we review
the factual calculation for clear error. United States v. Maddux, 917 F.3d 437, 450 (6th Cir. 2019)
(citing United States v. Warshak, 631 F.3d 266, 328 (6th Cir. 2010)).
Davis is mistaken that this case presents a commentary interpretation issue. The district
court sentenced Davis under the 2024 Guidelines Manual (and this opinion refers to the same).
Under the guideline for larceny, a defendant’s offense level increases incrementally based on the
amount of loss the offense caused. U.S.S.G. § 2B1.1(b)(1). If the loss was greater than $40,000,
as the district court determined in Davis’ case, the offense level increases by six. Id.
§ 2B1.1(b)(1)(D).
Davis’ assertion to the contrary, § 2B1.1(b)(1) does define loss. “Loss is the greater of
actual loss or intended loss.” Id. § 2B1.1(b)(1) note (A). Actual loss is “the reasonably foreseeable
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pecuniary harm that resulted from the offense.” Id. § 2B1.1(b)(1) note (C)(i). Pecuniary harm is
“harm that is monetary or that otherwise is readily measurable in money.” Id. § 2B1.1(b)(1) note
(C)(iii). Reasonably foreseeable pecuniary harm is “pecuniary harm that the defendant knew or,
under the circumstances, reasonably should have known, was a potential result of the offense.” Id.
§ 2B1.1(b)(1) note (C)(iv). Finally, intended loss is “the pecuniary harm that the defendant
purposely sought to inflict” even “includ[ing] intended pecuniary harm that would have been
impossible or unlikely to occur . . . .” Id. § 2B1.1(b)(1) note (C)(ii).
Those definitions previously sat in the commentary to the guideline, but pursuant to the
2024 notice and comment process, the Sentencing Commission relocated them to the guideline
proper. See Proposed Amendments to the Sentencing Guidelines, Policy Statements, and Official
Commentary, 88 Fed. Reg. 89143 (Dec. 26, 2023); United States v. Prather, 138 F.4th 963, 974
& n.1 (6th Cir. 2025). Davis’ argument that the district court erred by relying on the commentary
fails, as the district court did not rely on the commentary but on the guideline itself.
As for the district court’s calculation of loss, “[t]he court need only make a reasonable
estimate of the loss[,]” and “the court’s loss determination is entitled to appropriate deference.”
U.S.S.G § 2B1.1 cmt. n.3(B). “We defer to the district court’s loss calculation so long as it is
‘plausible on the record as a whole[,]’” United States v. Mitan, No. 21-5834, 2025 WL 1392242,
at *5 (6th Cir. Apr. 9, 2025) (quoting United States v. Estrada-Gonzalez, 32 F.4th 607, 614 (6th
Cir. 2022)), and will not reverse “unless we are left with the ‘definite and firm conviction’ that a
mistake was made,” United States v. Karasarides, 159 F.4th 972, 992 (6th Cir. 2025) (quoting
United States v. White, 492 F.3d 380, 414 (6th Cir. 2007)). To prevail, Davis must persuade us
“that the court’s evaluation of the loss was not only inexact but outside the universe of acceptable
computations.” United States v. Mahbub, 818 F.3d 213, 231 (6th Cir. 2016) (quoting United States
-9- No. 25-3320, United States v. Davis
v. Raithatha, 385 F.3d 1013, 1024 (6th Cir. 2004), vacated and remanded on other grounds, 543
U.S. 1136 (2005) (mem.)).
Davis does not dispute that the cash boxes from the ATM contained $45,346. Davis
purposefully sought to break open the ATM and steal its contents. He offers no evidence that he
intended to steal only a subset of the cash in the ATM. In fact he offers no alternative amount for
intended loss beyond the damage to the machine. The district court did not clearly err by including
the $45,346 from the ATM in its amount of loss calculation, as that amount was plausible and
within the “universe of acceptable computations.” Id. (quoting Raithatha, 385 F.3d at 1024).
Impermissible Factors
Davis argues that in varying from the guidelines range, the district court impermissibly
relied on Davis’ criminal history, which the guidelines range already incorporated. See United
States v. Lanning, 633 F.3d 469, 477 (6th Cir. 2011) (“Double-counting claims concern the
procedural reasonableness of the defendant’s sentence.” (citing United States v. Battaglia, 624
F.3d 348, 351 (6th Cir. 2010))). Specifically, he states that the district court improperly relied on
his prior three-year term of imprisonment, which he served concurrently for both his aggravated
assault and attempted theft convictions and for which he received six cumulative criminal history
points.
Typically, a defendant’s criminal history is “not a proper reason for a variance precisely
because the Guidelines already take it into account.” United States v. Boucher, 937 F.3d 702, 711
(6th Cir. 2019) (citing United States v. Warren, 771 F. App’x 637, 642 (6th Cir. 2019)). In some
circumstances, however, a district court may consider a defendant’s criminal history to justify a
variance, even if the guidelines range incorporates the same conduct. This Court has referred to
the incorporation of “precisely the same aspect of the defendant’s conduct [] into his sentence in
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two separate ways” as “[d]ouble-counting . . . .” United States v. Morgan, 687 F.3d 688, 695 (6th
Cir. 2012) (quoting Battaglia, 624 F.3d at 351). Double-counting differs from a district court’s
punishing of “distinct aspects of [a defendant’s] conduct.” Id. We have been more likely to uphold
a variance based on criminal history where a “relationship” exists “between the instant offense and
the defendant’s prior offenses.” United States v. Lee, 974 F.3d 670, 677 (6th Cir. 2020).
Specifically, we have recognized that a sentencing court analyzing the 18 U.S.C. § 3553(a) factors
may consider criminal history already incorporated into the guidelines range when the present and
prior convictions share “similarities” that “demonstrate[] a need for deterrence beyond that already
captured by the [G]uidelines.” United States v. Axline, 93 F.4th 1002, 1011 (6th Cir. 2024)
(alterations in original) (quoting id. at 678). Temporal proximity between similar offenses may
also raise concern about the sufficiency of a guidelines sentence. See id. at 1011–12.
Although Davis’ criminal history score accounted for his prior convictions, it did not
account for all of the aggravating aspects that caught the district court’s attention. The district
court emphasized the violent nature of Davis’ prior assault offenses, the similarities and temporal
proximity between Davis’ instant and most recent prior conviction, and Davis’ past difficulties
complying with the terms of probation. The guidelines assign three criminal history points “for
each prior sentence of imprisonment exceeding one year and one month” that “was imposed within
fifteen years of the defendant’s commencement of the instant offense” or “that resulted in the
defendant being incarcerated during any part of such fifteen-year period.” U.S.S.G. §§ 4A1.1(a),
2(e)(1). Therefore, a defendant could earn the same criminal history score as Davis based on any
qualifying felonies, violent or otherwise, regardless of whether they bore any resemblance to the
defendant’s present offense, whether they occurred one year or 15 years ago, and irrespective of
whether the defendant has demonstrated noncompliance on probation. Davis does not offer
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countervailing evidence that a typical defendant sentenced under the same guideline would share
those characteristics. Therefore, by focusing on those aspects for the variance, the district court
did not double-count but rather considered otherwise unincorporated and pertinent aspects of
Davis’ criminal history.1 That was not a procedural error.
Age Mitigation
According to Davis, his above-guidelines sentence did not account for his young age at the
time of this offense and the prior ones. A sentencing court must make a record that it has
“considered the defendant’s [nonfrivolous] argument” for a lower sentence “and explained the
basis for rejecting it.” United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010) (quoting United
States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009)). Failure to explicitly mention a point may
not indicate that the district court did not consider it at all, but the “reasons for rejecting the
arguments” must “be apparent from the sentencing transcript as a whole.” United States v. Haile,
157 F.4th 820, 831–32 (6th Cir. 2025) (quoting United States v. Brinda, 851 F. App’x 565, 568
(6th Cir. 2021)).
To at least some extent, the argument that Davis’ age should mitigate his sentence was
before the district court. Davis’ PSR flagged age as a potential ground for departure from the
guidelines. Davis’ sentencing memorandum reiterated that the district court should “recognize . . .
the age when [Davis’ prior convictions] took place.” Sentencing Mem., R. 23, PageID #134. And
at the sentencing hearing, Davis’ attorney noted that Davis is “a young man . . . .” Sentencing Tr.,
R. 33, PageID #192.
1 Davis seems to suggest that his prior three-year term of imprisonment already received undue weight from the six criminal history points assigned in the PSR, but Davis received six points for that sentence rather than three because he served it for two separate offenses concurrently. - 12 - No. 25-3320, United States v. Davis
A clearer explanation as to why the district court was unmoved by Davis’ age would have
been helpful to our review, but the district court said enough to show that it was aware of and
considered the fact. Davis’ most salient argument on this point at sentencing was that his prior
offenses occurred in his youth. In reviewing Davis’ criminal history, the district court
acknowledged that several of Davis’ juvenile offenses occurred “at the younger ages of 14 and
15 . . . .” Id. at PageID #198. The district court apparently registered Davis’ age at the time he
committed those offenses and decided that other factors outweighed it.
The district court did not credit Davis’ youth during the conduct that extended into Davis’
20s, including the instant offense, but Davis did not articulate that point in earnest at sentencing,
so we may review it only for plain error. Under that standard, Davis “must show: ‘(1) error (2) that
was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.’” United States v. Taylor, 800
F.3d 701, 714 (6th Cir. 2015) (quoting Wallace, 597 F.3d at 802). We are not persuaded that the
district court made an obvious or clear error by not explaining sua sponte why Davis’ age of 26
did not warrant a shorter sentence.
Clearly Erroneous Facts
Finally, Davis argues that the district court erroneously concluded that he was “a danger to
the community” because the nature of his offense, larceny, “did not involve a danger of bodily
harm and was not an offense of violence.” Def.’s Br. 25 (quoting Sentencing Tr., R. 33, PageID
#200). When reviewing a sentence for procedural reasonableness, we review the sentencing
court’s factual findings for clear error. United States v. Vowels, 159 F.4th 1095, 1100 (6th Cir.
2025) (citing Rayyan, 885 F.3d at 440). Davis does not cite any support for the proposition that
only violent crimes pose a danger to the community. In fact, the district court acknowledged that
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Davis “didn’t go into a bank with a gun” but found the attempt to steal an ATM to be a “serious
offense,” made more dangerous by the involvement of law enforcement. Sentencing Tr., R. 33,
PageID #200. Furthermore, Davis did not object to the fact set forth in the PSR that the trucks
used in the commission of this offense and the similar prior offense had been stolen. A court could
reasonably view repeated thefts of others’ vehicles as posing a danger to the community. That is
especially true given the violent offenses in Davis’ criminal history that the district court discussed.
The district court did not clearly err by finding that Davis was a danger to the community.
C. Substantive Reasonableness
Because we do not find a procedural error in Davis’ sentencing, we next “consider the
substantive reasonableness of the sentence . . . tak[ing] into account the totality of the
circumstances . . . .” Gall, 552 U.S. at 51. A defendant’s challenge to the substantive
reasonableness of a sentence is essentially an argument that the sentence is “‘greater than
necessary[] to comply with the purposes’ of § 3553(a).” Axline, 93 F.4th at 1008 (quoting United
States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). A sentence may be substantively
unreasonable if it is arbitrary, if it is based on impermissible factors, or if it weighs a pertinent
factor too heavily or too lightly. United States v. Adkins, 729 F.3d 559, 563–64 (6th Cir. 2013)
(quoting United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011)), superseded on other grounds
by statute, WEAPONS, 2018 Ohio Laws 159, as recognized in Wilson, 75 F.4th 633.
The district court’s assessment of how “to balance the applicable sentencing factors is
beyond the scope of [this] Court’s review.” Id. at 571 (first citing United States v. Sexton, 512
F.3d 326, 332 (6th Cir. 2008); and then citing United States v. Ely, 468 F.3d 399, 404 (6th Cir.
2006)). District courts have “greater familiarity” with the facts of the cases before them than the
courts of appeals, and they are in a “superior position to find facts and judge their import under
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§ 3553(a) . . . .” Kimbrough v. United States, 552 U.S. 85, 109 (2007) (first quoting Rita v. United
States, 551 U.S. 338, 357 (2007); and then quoting Gall, 552 U.S. at 51). Thus we “give due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Gall, 552 U.S. at 51. We may not vacate the sentence merely because we would
prefer a different one. Id. A district court may exercise its discretion to weigh a factor more
heavily than others if warranted based on the facts of the case. Adkins, 729 F.3d at 571 (citing
United States v. Zobel, 696 F.3d 558, 571–72 (6th Cir. 2012)). A defendant’s burden in showing
that the balance was unreasonable increases where the district court has “explicitly or implicitly
consider[ed] and weigh[ed] all pertinent factors . . . .” Id. (quoting United States v. Thomas, 437
F. App’x 456, 458 (6th Cir. 2011)).
In assessing the substantive reasonableness of a sentence, we consider “the extent of any
variance from the Guidelines range.” Id. (quoting Gall, 552 U.S. at 51). When a sentence falls
outside of the guidelines range, it is not presumptively unreasonable, but the sentencing court
“must [have] consider[ed] the extent of the deviation and ensure[d] that the justification is
sufficiently compelling to support the degree of the variance.” United States v. Aleo, 681 F.3d
290, 299 (6th Cir. 2012) (quoting Gall, 552 U.S. at 50); see United States v. Harrison, No. 23-
3276, 2024 U.S. App. LEXIS 14835, at *18–19 (6th Cir. June 18, 2024) (order). A larger variance
from the guidelines requires a more compelling justification grounded in the 18 U.S.C. § 3553(a)
factors. Aleo, 681 F.3d at 299 (quoting United States v. Poynter, 495 F.3d 349, 352 (6th Cir.
2007)). For cases that “fall outside the Guidelines’ ‘heartland,’ the district court’s decision to
deviate from the advisory range is entitled to the ‘greatest respect[]’ . . . .” United States v.
Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir. 2009) (quoting Kimbrough, 552 U.S. at 89). But in
such a case the district court must explain “why the defendant’s unique circumstances fall outside
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the ‘heartland’ of cases affected by the relevant guideline.” Axline, 93 F.4th at 1008 (quoting
Boucher, 937 F.3d at 708). A deviation “from the advisory range in a ‘mine-run case’ warrants
‘closer review.’” Herrera-Zuniga, 571 F.3d at 582 (quoting Kimbrough, 552 U.S. at 109).
The district court varied upwards from the top of Davis’ guidelines range significantly.
Davis’ guidelines range was 21 to 27 months, and the district court imposed a term of 48 months,
which is a variance of 21 months and approximately 78%. A variance of that magnitude is atypical
in this circuit for defendants sentenced for the kinds of offenses covered by U.S.S.G. § 2B1.1, see,
e.g., United States v. Noble, No. 24-5186, 2025 WL 1862460, *1, *2–4 (6th Cir. July 7, 2025)
(affirming seven-month (21%) variance for counterfeiting Federal Reserve notes based on criminal
history, substance dependency, likelihood of recidivism, the need to protect the public, and the
need to provide defendant medical care); Harrison, 2024 U.S. App. LEXIS 14835, at *1, *4–5
(affirming 72-month (43%) variance for “pernicious scheme to defraud at least a dozen people,
many of whom were in vulnerable positions or unsophisticated in investing”); United States v.
Smith, No. 22-5559, 2023 WL 4703864, *1 (6th Cir. July 24, 2023) (affirming five-month (14%)
variance for telemedicine scam), but not unprecedented where the facts and circumstances justify
it, see, e.g., United States v. Fievet, 808 F. App’x 358, 359, 361–62 (6th Cir. 2020) (affirming 12-
month (75%) variance for conspiracy to defraud the United States, theft of government property,
social security fraud, and tampering with a witness, where government paid defendants $47,566.20
in social security benefits, based on defendant’s obstruction and “lamentable history . . . of
disreputable, deceitful” acts); United States v. Johnson, 591 F. App’x 324, 324–26 (6th Cir. 2014)
(per curiam) (affirming 24-month (80%) variance for use of unauthorized access devices where
after pleading guilty defendant stole cigarettes from behind cashiers at Walgreens stores at least
four times).
- 16 - No. 25-3320, United States v. Davis
The district court had to establish a particularly compelling justification for that relatively
large variance. Davis states that the district court placed too much weight on his prior conviction
for assault of a public servant, which he committed when he was 17 years old, entailed his throwing
rocks at a correctional officer, and earned Davis three criminal history points. (Davis elides the
fact stated in the PSR, to which he did not object, that he additionally had hit the Correctional
Officer in the face, causing injury.) He believes that the district court should have focused less on
Davis’ criminal history, deterrence, and protecting the public and more on the need to avoid
disparities. He also submits that the district court should have weighed more heavily Davis’ age,
acceptance of responsibility, and mental health struggles and the non-violent nature of the offense.
But the district court did not consider only the factors that Davis claims were unduly weighed and
in fact addressed the points that Davis argues should have received more attention. Therefore,
Davis’ burden is high.
The apparent rationale behind the district court’s balancing of the § 3553(a) factors is the
same rationale discussed supra regarding the procedural propriety of considering conduct that the
guidelines already capture. Exceptional facts about the offense and Davis’ criminal history made
deterrence and protecting the public greater concerns for the district court and made parity with
other defendants less of a concern. Based on the violence in Davis’ past, the recent nature and
similarity of Davis’ prior attempted ATM theft, Davis’ recidivism following a three-year term of
imprisonment for that offense, and Davis’ history of violating probation, the district court’s
conclusion that Davis’ case is outside the heartland was not unreasonable, so we give heightened
deference to the district court’s decision to vary. See United States v. Penny, No. 24-3110, 2025
WL 502701, at *5–6 (6th Cir. Feb. 14, 2025); Axline, 93 F.4th at 1010; United States v. Solano-
Rosales, 781 F.3d 345, 356–57 (6th Cir. 2015).
- 17 - No. 25-3320, United States v. Davis
A major objective of the statutory sentencing framework is “to eliminate ‘unwarranted
sentenc[ing] disparities among defendants with similar records who have been found guilty of
similar conduct.’” Poynter, 495 F.3d at 352 (alteration in original) (quoting 18 U.S.C.
§ 3553(a)(6)). Sentencing data are “‘a starting point . . . ’ to avoid unwarranted sentence
disparities[,]” United States v. Perez-Rodriguez, 960 F.3d 748, 756–57 (6th Cir. 2020) (quoting
United States v. Stock, 685 F.3d 621, 629 n.6 (6th Cir. 2012)), but they are just a factor, and a
district court does not necessarily abuse its discretion by varying from those norms, Axline, 93
F.4th at 1013. Although Davis’ imprisonment will significantly exceed the average and median
for other defendants sentenced under the same guideline, the district court explained why those
figures were not controlling in this case. Therefore, we conclude that the district court did not
abuse its discretion in its weighing of the § 3553(a) factors.
III. CONCLUSION
Davis’ sentence is not procedurally or substantively unreasonable. Therefore, we
AFFIRM the district court’s judgment.
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