NOT RECOMMENDED FOR PUBLICATION File Name: 24a0256n.06
No. 23

- 5633
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff

- Appellee ,

v.
TYLER FRANKLIN ROCCHI , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE OPINION

B efore : WHITE , STRANCH, and MURPHY, Circuit Judges. MURPHY, Circuit Judge. Tyler Rocchi stole two firearms from a fr iend . H e later pleaded guilty to possessing stolen firearms in violation of 18 U.S.C. § 922(j) . Given Rocchi’s criminal history and the nature of his crime , the district court varied above his guidelines range by eight months and imposed a 71

- month term of imprisonment. Ro c chi appeals t his sentence. But the district court did not un reasonably balance the relevant sentencing factors when imposing it

. So

w e affirm. In February 2022, Robert Lee Allen “pistol whipped” his wife with a stolen handgun

. Federal and state authorities traced th e theft of this handgun back to Rocchi. When the police
arrest ed Rocchi , he possess ed a second handgun and 4.6 grams of heroin . Rocchi admitted that he had st olen both weapons from a female friend who had let Rocchi stay at her house to get him off the streets

. Given his extensive criminal record , he could not lawfully possess the se firearms

.No. 2 3

- 5633 , United States v. Rocchi

2

And while under the influence of drugs, he had knowingly transferred one of the guns to Michael David Newson, another convicted felon . Newson then passed the firearm on to Allen

. The federal government charged Allen, Rocchi, and Newson with several crimes

. Rocchi originally plead ed guilty to possessing a firearm as a felon in violation of 18 U.S.C. § 922( g ) (1)

. His plea agreement identified his maximum penalty as 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2) ( 2018 ). But his presentence report suggested that he qualified as an “armed career criminal” subject to a minimum 15

- year sentence for the felon

- in

- possession offense

. See id. § 924(e)(1).
To eliminate this mandatory minimum, the government enter ed into a new plea agreement with Rocchi

. Rocchi would now plead guilty to possessing a stolen firearm in violation of
18 U.S.C. § 922(j). This crime did not trigger the armed

- career - criminal enhancement. See id. § 924(e)(1). The district court allowed Rocchi to withdraw his initial guilty plea and plead guilty to this different offense

. At sentencing, t he court determined that Rocchi had a total offense level of 17 and that he fell within the highest criminal history category of VI. These calculations resulted in a guidelines
range of 51 to 63 months’ imprisonment. But the court varied above this range by treating Rocchi

as if he had a total offense level of 18

. With t his change , Rocchi’s guidelines range became 57 to 71 months’ imprisonment. The court ultimately imposed a 71

- month sentence. On appeal, Rocchi raises a “substantive reasonableness” challenge to his above

- guidelines
sentence. That is, Rocchi argues that the district court imposed a sentence that is “too long” when measured against the sentencing factors in 18 U.S.C. § 3553(a). United States v. Thomas , 933 F.3d 605, 612

– 13 (6th Cir. 2019) (quoting United States v. Parrish , 915 F.3d 1043, 1047 (6th Cir. 2019) ). Because the district court varied above Rocchi’s guidelines range, we do not presume thatNo. 2 3

- 5633 , United States v. Rocchi

3

his sentence is reasonable. See id. at 613. At the same time, we still review the sentence under the deferential abuse

- of

- discretion standard

. See Gall v. United States , 5 5 2 U.S. 38, 51 (2007)

. We will affirm an above

- guidelines sentence as long as the court reasonably differentiated the defendant’s case from the “ mine

- run ” case most suited for a within

- guidelines sentence

. United States v. Perez

- Rodriguez , 960 F.3d 748, 754 (6th Cir. 2020)

. Yet as the size of the court’s variance grows, so must the persuasiveness of its explanation for the variance

. See id. When we evaluate its analysis under this deferential test, t he district court adequately justified its eight

- month variance. The court reasonably found that this case involved neither a “mine

- run” offense nor a “mine

- run” defendant

. Id. As for the “nature” of the offense , Rocchi did not simply p ossess a stolen firearm. 18 U.S.C. § 3553(a)(1); see United States v. Booker , 2023 WL 2017379, at *2 (6th Cir. Feb. 15, 2023). Rather , he personally stol e the firearms himself. As a felon, moreover, he could not lawfully possess these firearms even if he had not st o l en them. He also transferred one of the handguns to Newson, who m he knew to be a felon

. A nd Allen, a codefendant, later u sed th at firearm to assault his spouse . As for the “history” of the defendant, Rocchi had an extensive criminal record. 18 U.S.C. § 3553(a)(1); see United States v. Dunnican , 961 F.3d 859, 881 (6th Cir. 2020). With a dozen or so prior convictions, he had reached the highest criminal history category by the young age of 2 5

. Rocchi had also committed over a dozen infractions during his time in prison

. Rocchi’s responses do not convince us otherwise

. He first argues that the district court acted arbitrarily because the government did not request an upward variance. But district court s (not prosecutors) bear the responsibility to choose the proper sentence. And the § 3553(a) factors give these courts a significant “range of discretionary decisionmaking” when deciding whether

to vary from the guidelines. United States v. Denny , 653 F.3d 415, 420 (6 th Cir. 2011)No. 2 3

- 5633 , United States v. Rocchi

4

(quoting United States v. Stephens , 549 F.3d 459, 466

− 67 (6 th Cir. 2008)). So we have repeatedly upheld upward variances even when the government argue d for a within

- guidelines sentence

. See,
e.g. , United States v. Gray , 2021 WL 4963366 , at *3, *7 (6th Cir. Oct. 26, 2021); United States v.
Antonio

- Pacheco , 653 F. App’x 841 , 841

− 42 (6th Cir. 2016) (per curiam) ; United States v. Krause , 513 F. App’x 482, 483, 486

– 87 (6th Cir. 2013 ). T he government’s failure to request a variance in Rocchi’s case likewise d oes not show that the sentence is unreasonable

. Rocchi also suggests that the district court should have ignored the violent crime that Allen committed with the stolen gun becaus e Rocchi did not participate in Allen’s domestic abuse. But Rocchi put this stolen firearm into the illicit gun market . So he knowingly increased the risk that this type of crime would occur. As we have repeatedly recognized , violent actors like Allen “disproportionately” use “stolen firearms” to commit their crimes

. United States v. Corbin , 76
F. App’x 58, 61 (6th Cir. 2003) (citing United States v. Murphy , 96 F.3d 846 , 849 (6th Cir. 1996) ) ;

see also United States v. Mobley , 956 F.2d 450, 454 (3d Cir. 1992). Rocchi next argues that his criminal history did not make his case unusual because his guidelines range already account ed for that history. We have “consistently rejected ” this argument. Dunnican , 961 F.3d at 881 ; see, e.g. , United States v. Harper , 2023 WL 7448755, at
*1

– 2 (6th Cir. Nov. 9, 2023) ; United States v. Rodriguez , 2023 WL 4204549, at *2 (6th Cir. June 27, 2023)

. To be sure, we have suggested that a “meaningful relationship” should exist between a current offense and prior offenses if the district court varies upward base d on a defendant’s criminal history alone

. United States v. Lee , 974 F.3d 670, 677

– 78 (6th Cir. 2020) . But th e district court identified th at type of relationship here. Rocchi’s current drug

- induced offense followed a consistent “pattern” in which Rocchi commit ted crimes (including theft ) after abusing drugs.
Sent. Tr., R.168, PageID 1708. And r egardless, the district court did not rely on Rocchi’s “criminalNo. 2 3

- 5633 , United States v. Rocchi

5

history alone.” United States v. Axline , 93 F.4th 1002, 1011 (6th Cir. 2024)

. Its 71

- month sentence rested on “all” the § 3553(a) factors

. Sent. Tr., R.168, PageID 1712. The court, for example, also relied on Rocchi’s behavior while incarcerated . It concluded that Rocchi’s conduct both inside and outside of prison showed a “profound disrespect for the law.” Id. , PageID 1711

– 12. Apart from his criminal record , Rocchi relatedly contends that the district court justified its variance with an improper counterfactual: if the government had stuck with the felon

- in

possession charge (rather than the stolen

- firearm charge ), Rocchi would have qualified as an armed career criminal subject to a minimum 180

- month sentence. Admittedly, the district court expressed equal

- treatment concerns with the government’s decision to allow Rocchi to avoid this mandatory minimum while impos ing the minimum on similar defendants (including a defendant the court would sentence later that day) . Sent. Tr., R.168, PageID 1674. But we need not consider whether the court could consider Rocchi’s statu s as an armed career criminal as part of its balancing of the § 3553(a) factors. T he record shows that it declined to impos e a variance on this ground

. T he court suggested that the government’s decision to dismiss the count that required this minimum sentence fell with in its “prosecutorial discretion” and that the court lacked “any authority over that” discretion. Id. T he court reiterated that it was “ not punishing [Rocchi] for being a convicted felon in possession of a firearm , ” explaining to Rocchi that such a conviction would have trigger ed a much higher “range” than the one it imposed. Id. , PageID 1704. In other words, the court varied upward to impose “just punishment” for what Rocchi pleaded guilty to

— not what the court thought he was “actually guilty of” (being a felon in possession of a firearm a n d an armed career criminal). Id. Rocchi lastly argues that the district court did not give enough weight to other § 3553(a) factors. But o ur standard of review do es not allow us “ to reweigh the § 3553(a) factors” and reachNo. 2 3

- 5633 , United States v. Rocchi

6

our own conclusion about the proper variance. United States v. Pyles , 904 F.3d 422, 426 (6th Cir. 2018). And Rocchi’s argument asks us to do just that. T he district court discussed most of the factors that he identifies

. Rocchi simply disagrees with how t he court balanced them. A few examples prove this point. Consider Rocchi’s claim that the district court did not put enough weight on “the need to avoid unwarranted sentence disparities” between similar ly situated defendants. 18 U.S.C. § 3553(a)(6). Rocchi uses the Sentencing Commission’s recent
statistics to support this claim. These statistics show that defendants with Rocchi’s total offense level and criminal history score have received a median sentence of 51 months and a mean sentence of 52 months for firearm offenses

. B ut the district court’s response to this argument at sentencing shows why we have expressed “serious skepticism” that this generic data can alone illustrate that a sentence is unreasonable. United States v. Hymes , 19 F.4th 928, 937 (6th Cir. 2021). While

r ecognizing the data as “valuable,” t he district court chose not to “put a whole lot of stock in i t ” because it revealed only averages

. Sent. Tr., R.168, PageID 1703. M any defendants received sentences above the averages ; many received sentences below them. Would Rocchi’s background
and offense resemble those of defendants who received the higher sentence s ? The l ower one s ? This data says nothing about these comparisons

. T he district court thus reasonably relied primarily on Rocchi’s unique “history” and “circumstances” rather than these averages

. Id.
Or consider Rocchi’s claim about one of his “characteristics” when he committed his past offenses. 18 U.S.C. § 3553(a)(1). He alleges that the record overstated his criminal history score because he committed most of his crimes as a juvenile . According to Rocchi, his immaturity at that time mitigated his crimes

. But the district court considered this history and saw things differently. The court viewed Rocchi as an “outlier” because it had not come across many 25

- year - olds who fell in criminal history c ategory VI. Sent. Tr., R.168, PageID 1707. In the court’sNo. 2 3

- 5633 , United States v. Rocchi

7

experience, most defendants of Rocchi’s age had much lower criminal history scores. The court thus opined that Rocchi had a “ pretty troubled history” because of how quickly h e had reached the top category. Id. , PageID 1708. I t added that Rocchi had not “changed all that much” as an adult because he continued to abus e drugs and then commit crimes. Id. The court thus reasonably acknowledged Rocchi’s youth. See United States v. Sherrill , 972 F.3d 752, 773 (6th Cir. 2020). Next consider Rocchi ’s claim that the district court did not account for his theft victim’s request for leniency at sentencing

. True, the victim (Rocchi’s friend) testified that Rocchi is a “very good

- hearted person” who helps others. Sent. Tr., R.168, PageID 1683. But the court could reasonably discount her testimony given its “wide discretion” to resolv e evidentiary questions, including questions about a witness’s credibility. United States v. Bingham , 81 F.3d 617, 630 (6 th Cir. 1996). Among other reasons, she dis claimed any knowledge of Rocchi’s drug use

— the catalyst for his crimes. She also did not know that he had possessed heroin at the time of his arrest. Lastly consider Rocchi ’s claim that a guidelines amendment from November 2023 would have placed him in criminal history category V , not VI

. In response, t he government explained that he would remain in the highest criminal category even after this change

. Rocchi did not challenge its calculations in his reply brief. So we see no basis to dispute t hose calculations here.
T hat Rocchi remained at criminal history category VI even after this defendant

- friendly change confirms the reasonableness of his sentence. We affirm.