RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0149p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

O’BRYAN MITCHELL,

Defendant-Appellant.

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No. 23-3588

Appeal from the United States District Court for the Northern District of Ohio at Akron.

No. 5:22-cr-00496-1—John R. Adams, District Judge.

Decided and Filed: July 10, 2024

Before: GILMAN, STRANCH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Dennis J. Clark, CLARK LAW FIRM PLLC, Detroit, Michigan, for Appellant. 

Brenna L. Fasko, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Following an incident in which he fled from 

police while holding a firearm, O’Bryan Mitchell pleaded guilty to one count of possession of a 

firearm by a convicted felon. The district court sentenced him to 78 months of imprisonment, 

concluding that Mitchell’s circumstances warranted an upward variance from his Sentencing 

Guidelines range. It also ordered that Mitchell’s sentence would run consecutively to any term of 

imprisonment arising out of any pending state-court conviction or parole violation. Mitchell 

>
No. 23-3588 United States v. Mitchell Page 2

appeals his sentence, arguing that it is both procedurally and substantively unreasonable, and that 

the district court erred by ordering that he serve his federal sentence consecutive to any pending 

state sentence. For the reasons set forth below, we AFFIRM the judgment of the district court. 

I. BACKGROUND

In May 2022, the Massillon Police Department responded to a report of a man 

discharging a firearm near Franklin Park in Massillon, Ohio. When the officers arrived at the 

scene, they observed a man who matched the description of the suspect. The officers ordered the 

man to stop, but he disobeyed their orders and fled on foot. This individual was later identified as 

Mitchell. 

As the officers pursued Mitchell, he removed a firearm from his waistband and held it in 

hand as he ran. Mitchell looked in the officers’ direction twice during the pursuit. But after 

slipping and falling on wet grass, Mitchell threw the firearm into nearby bushes. Mitchell 

continued running but eventually fell again and, soon after, the officers arrested him. 

The officers then searched Mitchell and discovered that he was in possession of a digital 

scale and a plastic bag containing methamphetamine. After surveying the area where the officers 

chased Mitchell, the officers recovered the firearm that Mitchell had thrown into the bushes. The 

firearm was loaded, and the DNA collected on it matched Mitchell’s. 

Mitchell was subsequently indicted on one count of possession of a firearm by a 

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He initially pleaded not 

guilty, but later changed his plea after a change-of-plea hearing. The parties did not enter into a 

plea agreement, so Mitchell pleaded guilty pursuant to the indictment. 

After applying an acceptance-of-responsibility reduction, the presentence report 

calculated Mitchell’s final adjusted offense level as 17, and his criminal-history category as VI. 

Based on Mitchell’s offense level and criminal-history category, the Sentencing Guidelines 

recommended 51 to 63 months of imprisonment. The presentence report did not identify any 

factors that would warrant a departure from the Guidelines. 
No. 23-3588 United States v. Mitchell Page 3

But the presentence report identified grounds that could support either an upward or a 

downward variance. It noted the following factors that could support an upward variance: 

Mitchell’s flight from law enforcement, his possession of methamphetamine, and the potential 

discharge of a firearm before the officers arrived at the park. In support of a downward variance, 

the presentence report pointed to Mitchell’s mental-health struggles and his exposure to a “gang 

lifestyle” at a young age.

The presentence report also highlighted statistics concerning defendants who were 

sentenced from 2017 to 2021 with the same offense level and criminal-history category as 

Mitchell. Specifically, it noted that for those defendants, the average length of imprisonment was 

52 months, and the median length of imprisonment was 51 months. Mitchell did not object to 

the presentence report, including its conclusions and calculations. 

Before sentencing, the district court issued an order indicating that it might vary upwards 

from the Sentencing Guidelines range. In support of this potential variance, the court highlighted 

the nature and circumstances of Mitchell’s offense, his criminal history, the seriousness of 

Mitchell’s offense, and the need to protect the public. 

The district court conducted two sentencing hearings, the first of which occurred in June 

2023. Neither party objected to the presentence report during the hearing. The court then 

announced its Guidelines calculation, which coincided with that of the presentence report. 

Relevant to this appeal, Mitchell took “full responsibility” for his actions and stated that 

he needed “rehabilitation,” while acknowledging the alleged role that drugs played in his 

conduct. But the district court was not persuaded that Mitchell’s mitigation evidence warranted 

deviating downward. 

The district court ultimately ordered a continuance in order to investigate certain facts 

about two of Mitchell’s prior convictions. It also directed U.S. Probation Services to gather 

information about whether state parole authorities planned to impose further sanctions on 

Mitchell. 
No. 23-3588 United States v. Mitchell Page 4

In July 2023, the district court conducted the second sentencing hearing. The court 

listened to the parties’ final arguments, and it then analyzed the 18 U.S.C. § 3553(a) factors. It 

described Mitchell’s criminal history, the nature and circumstances of the offense for which he 

was convicted, Mitchell’s personal characteristics, and the type of sentences usually imposed for 

the crime to which Mitchell had pleaded guilty. Based on these factors, the court highlighted the 

need to impose “a lengthy period of incarceration” and for “adequate deterrence [and] to protect 

the public.” 

The court also acknowledged potential mitigating factors, including Mitchell’s exposure 

to domestic violence, gang activity, and substance abuse. But the court downplayed these 

mitigating factors by noting that Mitchell’s “criminal record began at the age of 15,” and 

“despite numerous opportunities to amend his behavior by supervision and incarceration . . . [,] 

[h]e’s not done so.” And with respect to Mitchell’s mental-health struggles, the court recognized 

“mental health issues and substance abuse issues,” but concluded that Mitchell had failed to 

utilize resources available to him that were designed to address these issues. 

After concluding that Mitchell was an “extremely dangerous individual” who “poses a 

risk to the safety of all,” the district court imposed an upward variance of two offense levels. It 

justified the variance for several reasons, including Mitchell’s possession of narcotics during his 

arrest, his criminal history, juvenile-crime record, poor institutional adjustment to incarceration, 

failure to modify his behavior via noncustodial sanctions, and repeated violations of supervised 

release. The court then sentenced Mitchell to 78 months in prison and a three-year term of 

supervised release. 

Finally, the district court ordered that “this [federal] time [of imprisonment] will be 

consecutive to whatever time is imposed by the [state] parole authorities or any other court 

related to his state court [convictions].” Mitchell did not raise any objections during the 

sentencing hearing under this court’s decision in United States v. Bostic, 371 F.3d 865 (6th Cir. 

2004). 
No. 23-3588 United States v. Mitchell Page 5

II. ANALYSIS

Mitchell first asserts that the district court’s sentence was substantively unreasonable. 

But as the government correctly points out, some of Mitchell’s purported substantivereasonableness arguments actually attack the procedural reasonableness of his sentence. We will 

therefore begin by addressing Mitchell’s procedural-reasonableness arguments before analyzing 

his substantive-reasonableness ones. See United States v. Thomas-Mathews, 81 F.4th 530, 541 

(6th Cir. 2023) (“[W]e typically first address the procedural reasonableness of a sentence and do 

not analyze its substantive reasonableness unless the sentence is procedurally sound.” (internal 

quotation marks omitted) (quoting United States v. Adams, 873 F.3d 512, 520 (6th Cir. 2017)). 

Afterward, we will analyze his argument that the district court erred by imposing a sentence that 

runs consecutively to any state-imposed sentence. 

A. Mitchell’s sentence was procedurally reasonable

For a sentence to be procedurally reasonable, a court “must properly calculate the 

guidelines range, treat that range as advisory, consider the sentencing factors in 18 U.S.C. 

§ 3553(a), refrain from considering impermissible factors, select the sentence based on facts that 

are not clearly erroneous, and adequately explain why it chose the sentence.” United States 

v. Miller, 73 F.4th 427, 429–30 (6th Cir. 2023) (quoting United States v. Rayyan, 885 F.3d 436, 

440 (6th Cir. 2018)). Because Mitchell did not raise any procedural objections to his sentence in 

the district court, his procedural-reasonableness claims are reviewed under the plain-error 

standard. See United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (“Where a party has 

failed to object to a procedural defect, we review claims of procedural unreasonableness for plain 

error.”). 

1. The district court was not predisposed to a sentence above the 

Guidelines

Mitchell contends that the district court imposed an arbitrary sentence because it “seemed 

predisposed to an above guidelines sentence.” He specifically points to the following statement 

at his change-of-plea hearing, in which the court warned Mitchell:

The marshals will notify me if there’s any problems with contraband, drugs, cell 

phones, fighting. Any of those things will most assuredly put you at pretty close 
No. 23-3588 United States v. Mitchell Page 6

to the ten-year mark based on what I see in this case. So, I don’t know that yet. It 

will remain to be seen. But any type of conduct like that will certainly lengthen 

your sentence, so stay out of trouble.

Mitchell asserts that because these comments were made before the preparation of the 

presentence report, the comments were “indicative of a predisposition to render a very high 

sentence, bearing in mind that the maximum statutory penalty is ten years,” and that the court 

“seems to have prematurely decided that Mitchell’s sentence will be ‘pretty close’ to the 

maximum.” He also adds that “misconduct while in jail awaiting sentence . . . is not of much 

consequence in sentencing determinations, [so] this commentary is actually more of a message of 

what the District Court is predisposed to do.” 

As an initial matter, Mitchell frames this argument as a substantive-reasonableness 

challenge. He reasons that a court’s improper predisposition toward a defendant is indicative of 

an arbitrary sentence. See United States v. Gardner, 32 F.4th 504, 530 (6th Cir. 2022) 

(observing that when a district court chooses a sentence arbitrarily, the question is one of 

substantive reasonableness). But this argument is better framed as a court “considering [an] 

impermissible factor,” see Miller, 73 F.4th at 430 (quoting Rayyan, 885 F.3d at 440), which in 

this case would be the court’s alleged bias or personal beliefs about Mitchell. And despite 

conflicting cases in this circuit, this court has recently clarified that this sort of challenge is 

procedural in nature. United States v. Parrish, 915 F.3d 1043, 1047–48 (6th Cir. 2019) (“[I]t 

was unsettled in this circuit whether a district court’s consideration of an impermissible factor 

should be treated as procedural or substantive error. But in 2016, the court settled the question, 

concluding that ‘consideration of an impermissible factor is more properly considered a 

procedural, not substantive, error.’” (quoting United States v. Cabrera, 811 F.3d 801, 809 (6th 

Cir. 2016)) (internal citations omitted)). 

Mitchell’s argument nevertheless fails under the plain-error standard. After stating that 

any “problems” caused by Mitchell while detained would likely result in a sentence close to the 

statutory maximum, the district court qualified its warning by saying “I don’t know that yet. It 

will remain to be seen.” Importantly, “[n]othing in the record suggests that the district court 

based its sentence on” these remarks. See United States v. Hymes, 19 F.4th 928, 934 (6th Cir. 

2021) (emphasis in original). Mitchell, moreover, has not directed us to any caselaw addressing 
No. 23-3588 United States v. Mitchell Page 7

a court’s qualified impression about a defendant’s sentence prior to the preparation of a 

presentence report. We are likewise unaware of any cases addressing this question. His 

argument on this point is therefore unpersuasive. 

Mitchell relatedly asserts that the district court was predisposed to impose a higher 

sentence because “misconduct while in jail awaiting sentence . . . is not of much consequence in 

sentencing determinations.” To the contrary, “pretrial conduct . . . is an appropriate 

consideration ‘under § 3553(a) because it is relevant to the history and characteristics of the 

defendant, and to the need for the sentence to promote respect for the law.’” United States v. 

Freeman, 2023 U.S. App. LEXIS 33518, at *5–6 (6th Cir. Dec. 18, 2023) (order) (quoting 

United States v. Schlosser, 558 F.3d 736, 742 (8th Cir. 2009)). The court therefore did not 

plainly err by stating that it would consider Mitchell’s pretrial conduct during sentencing. 

2. The district court adequately explained why a two-level upward 

variance was imposed

Mitchell next argues that the district court provided an “insufficient explanation for why 

the sentencing guidelines did not adequately account for the factors for which the two level 

upward variance was assessed.” Although fashioned as a substantive-reasonableness challenge, 

this challenge is procedural in nature because Mitchell is arguing that the court did not 

“adequately explain why it chose the sentence.” See Miller, 73 F.4th at 430; see also United 

States v. Zabel, 35 F.4th 493, 505 (6th Cir. 2022) (involving a case in which the defendant 

argued “that the district court committed procedural error by not adequately explaining why it 

imposed an . . . above-guidelines sentence”).

“When imposing a procedurally reasonable sentence, the district court must ‘adequately 

explain the chosen sentence—including an explanation for any deviation from the Guidelines 

range.’” United States v. Johnson, 640 F.3d 195, 205 (6th Cir. 2011) (emphasis in original) 

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “First, a district court must explain the 

reasons justifying a departure, and, second, evidence of those reasons must appear in the record. 

Such explanation allows meaningful appellate review.” Id. (quoting United States v. Smith, 474 

F.3d 888, 894 (6th Cir. 2007), abrogated on other grounds by Gall, 552 U.S. at 51). And “if the 

sentence imposed is outside the advisory range, [then] the court is required to state ‘the specific 
No. 23-3588 United States v. Mitchell Page 8

reason for the imposition of’ its departure or variance.” United States v. Zobel, 696 F.3d 558, 

566 (6th Cir. 2012) (quoting 18 U.S.C. § 3553(c)(2)). 

In the present case, the district court adequately explained its rationale for varying 

upwards after thoroughly analyzing the 18 U.S.C. § 3553(a) factors. It specifically justified the 

upward variance based on Mitchell’s possession of narcotics during his arrest, his criminal 

history, juvenile-crime record, poor institutional adjustment to incarceration, repeated violations 

of supervised release, and failure to modify his behavior via noncustodial sanctions, including 

his refusal to comply with orders of community service and substance-abuse treatment. Also 

mentioned by the court in support of the upward variance was the need for “adequate deterrence, 

[and to] protect the public.” The court therefore provided several specific reasons for its upward 

variance and considered, among other factors, the nature and circumstances of the original 

offense, Mitchell’s history and characteristics, protecting the public, and the need for deterrence. 

Mitchell nevertheless argues that the district court’s reason for an upward variance was 

based only on its “subjective opinion.” But that assertion is belied by the extensive explanation 

we have just recounted from the court’s sentencing hearing. Mitchell relatedly contends that 

there was an insufficient explanation for “why the upward assessment was for two levels and 

why the sentence was at the highest point of that increased range.” He fails to identify, however, 

any caselaw requiring a district court to explain why it rejected other possible sentences when 

varying upward. 

This court has “never required the district court to articulate every possible reason why a 

sentence is procedurally reasonable.” United States v. Jackson, No. 22-3288, 2023 WL 

3059078, at *3 (6th Cir. Apr. 24, 2023); see also United States v. Wallace, 597 F.3d 794, 804 

(6th Cir. 2010) (“[A] district judge need not give the reasons for rejecting any and all arguments 

by the parties for alternative sentences.” (citation and internal quotation marks omitted)). 

District courts must instead explain their “reasoning to a sufficient degree to allow for 

meaningful appellate review—the touchstone of procedural reasonableness.” Zobel, 696 F.3d at 

569 (citation and internal quotation marks omitted). As we have discussed, the court’s reasons 

for why it varied upward were sufficiently explained. 
No. 23-3588 United States v. Mitchell Page 9

3. The district court did not ignore mitigating factors

Mitchell also asserts that the district court failed to fully consider the mitigating factors 

identified in the presentence report. He specifically argues that “his mental health problems 

[were] dismissed by the District Court” and that his substance abuse struggles “were [not] really 

taken into consideration as mitigation when the sentence was fashioned.” 

We disagree. The record shows that the district court considered both of the mitigating 

factors that Mitchell has identified. As for Mitchell’s mental-health struggles, the district court 

explained that it would place less weight on that factor because, despite his mental-health 

struggles, Mitchell “understand[s] right from wrong. You understand you’re not to have a gun.” 

Mitchell’s other contention that the district court disregarded his substance-abuse 

problems is similarly unpersuasive. The court acknowledged Mitchell’s history of substance 

abuse, noting that “[a]n addiction, I can understand. Trouble with alcohol, trouble with drug use, 

those things are problematic.” But the court then explained that despite these concerns about 

substance abuse, the nature of Mitchell’s repeated offenses left the court “wonder[ing] if 51 to 63 

months is sufficient but not greater than necessary when I have someone who continues to 

possess firearms.” So “[c]ontrary to [Mitchell’s] argument, the record demonstrates that the 

district court did adequately consider” his relevant mitigating factors. See United States v. 

Houston, 529 F.3d 743, 754 (6th Cir. 2008). We therefore conclude that the district court did not 

plainly err in this respect. 

4. The district court did not vary upward because it blamed Mitchell for 

Ohio’s crime rate

Mitchell next argues that the district court erred by relying on an impermissible factor: 

its alleged personal-value judgment that Mitchell was part of Ohio’s crime problem. He points to 

the court’s statement that “continuing to possess a loaded gun in the community is what’s 

causing the problems we have in Akron, Cleveland, Youngstown, Massillon[,] everywhere.” 

Contrary to Mitchell’s contention, however, we do not find that the district court plainly 

erred by referencing Ohio’s crime issues. To begin with, the court did not expressly rely on the 

statement as a reason to impose an upward variance. See United States v. Hymes, 19 F.4th 928, 
No. 23-3588 United States v. Mitchell Page 10

934 (6th Cir. 2021) (discounting concerns about a district court’s allegedly improper statement 

because the court did not rely on it as a basis for the sentence). The statement was made after the 

defendant addressed the court, so in context, the court appears to have made the statement to 

underscore the seriousness of Mitchell’s actions. Such consideration is a sentencing factor that a 

court can correctly consider. See 18 U.S.C. § 3553(a)(2)(A). 

Mitchell, moreover, does not identify any caselaw that forbids a district court from 

discussing how a defendant’s actions contribute to a state’s crime rate. If this was the main 

reason for imposing an upward variance, Mitchell’s argument would be more persuasive. See 

United States v. Brown, 828 F. App’x 256, 259 (6th Cir. 2020) (vacating a sentence because the 

only basis for an upward variance was based on “a problem common to all defendants” with the 

same criminal-history score). But as we have discussed, there were several reasons identified by 

the court that justified an upward variance. We therefore conclude that this statement does not 

warrant resentencing under the plain-error standard. 

B. Mitchell’s sentence was substantively reasonable 

Mitchell next challenges his sentence as substantively unreasonable. He principally 

makes two arguments in this regard. His first argument is that the district court erred by “giving 

[his criminal history] undue weight and varying upward based on it.” Mitchell’s second 

substantive-reasonableness argument is that because the court’s sentence “exceeded by 26 

months the national average for [Mitchell’s] offense of conviction,” it was too long and failed to 

avoid unwarranted sentencing disparities among defendants with similar records who have been 

found guilty of similar conduct. 

“Substantive reasonableness focuses on whether a ‘sentence is too long (if a defendant 

appeals) or too short (if the government appeals).’” United States v. Parrish, 915 F.3d 1043, 

1047 (6th Cir. 2019) (quoting United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)). “The 

point is not that the district court failed to consider a factor or considered an inappropriate factor; 

that’s the job of procedural unreasonableness. It’s a complaint that the court placed too much 

weight on some of the § 3553(a) factors and too little on others in sentencing the individual.” 

Rayyan, 885 F.3d at 442. A “district court’s decision to assign more or less weight to a given 
No. 23-3588 United States v. Mitchell Page 11

factor is ‘a matter of reasoned discretion, not math, and our highly deferential review of a district 

court’s sentencing decisions reflects as much.’” United States v. Boucher, 937 F.3d 702, 707 

(6th Cir. 2019) (quoting Rayyan, 885 F.3d at 442). 

“Although a sentence that falls within the Guidelines range warrants a presumption of 

reasonableness in this circuit, there is no presumption against a sentence that falls outside of this 

range.” United States v. Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir. 2010) (quoting United 

States v. Herrera-Zuniga, 571 F.3d 568, 590 (6th Cir. 2009)). For outside-of-the-range 

sentences, we “must consider the extent of the deviation and ensure that the justification is 

sufficiently compelling to support the degree of the variance.” Boucher, 937 F.3d at 708 

(quoting Gall, 552 U.S. at 50). “[W]e may consider the percentage of variance from the 

specified Guidelines range or the number of months of the sentence.” United States v. PerezRodriguez, 960 F.3d 748, 755 (6th Cir. 2020). 

In the present case, the district court sentenced Mitchell to 78 months of imprisonment, a 

24% increase from the high-end (63 months) of Mitchell’s Guidelines range. Mitchell argues 

that this sentence erroneously (1) gave undue weight to his criminal history, and (2) failed to 

avoid sentencing disparities among similarly situated defendants. 

We first turn to Mitchell’s argument that the district court placed undue weight on his 

criminal history. To support this argument, Mitchell relies on this court’s decision in United 

States v. Boucher, 937 F.3d at 711, which noted that a defendant’s criminal record “is usually not 

a proper reason for a variance precisely because the Guidelines already take it into account.” But 

as relevant here, this court’s precedent also “permits juvenile offenses to be considered in 

sentencing, whether in the context of an upward departure or, analogously, an upward variance.” 

United States v. Horton, 638 F. App’x 469, 472 (6th Cir. 2016). The district court partly based 

its justification for an upward variance by highlighting Mitchell’s juvenile record, which the 

presentence report did not consider when calculating his criminal-history category. See United 

States v. Barber, 200 F.3d 908, 912–13 (6th Cir. 2000) (“U.S.S.G. § 4A1.3 authorizes the Court 

to consider . . . prior sentences not used in computing the criminal history category.” (cleaned 

up)). 
No. 23-3588 United States v. Mitchell Page 12

Further undermining Mitchell’s argument is that the district court did not rely solely on 

his criminal record when it chose to impose the upward variance. The court, for instance, also 

emphasized Mitchell’s poor institutional adjustment to prior terms of incarceration, a factor that 

was not accounted for in Mitchell’s criminal-history category. Mitchell’s poor institutional 

adjustment served as a basis for the court’s conclusion that he “need[ed] to be deterred.” See 

§ 3553(a)(2)(B). The court further observed that Mitchell had been given several opportunities 

to modify his behavior “by way of judicial release and other noncustodial sanctions,” but 

repeatedly violated his supervised release anyway. 

Mitchell also asserts that the district court failed to avoid an unwarranted sentencing 

disparity. He observes that the court sentenced him to 78 months of imprisonment, whereas the 

average length of imprisonment for defendants with his offense level and criminal-history 

category is only 52 months. 

“[T]he need to avoid unwarranted sentencing disparities sits at the heart of our 

substantive reasonableness review.” United States v. Lightning, 835 F. App’x 38, 43 (6th Cir. 

2020). “To avoid sentence disparities, the Guidelines provide a transparent and predictable 

sentencing range for defendants who fall within the ‘heartland’ of average cases.” Boucher, 937 

F.3d at 708 (quoting Kimbrough v. United States, 552 U.S. 85, 109 (2007)). “When a district 

court varies outside the guideline range, then, we expect the court to explain what distinguishes 

that defendant’s case from a typical one.” Id. To that end, we must determine what 

distinguishes Mitchell’s case from a typical one.

We first note that Mitchell’s possession of narcotics and his prior firearms offense might 

alone have been insufficiently distinguishable. See United States v. Burkey, No. 22-3076, 2023 

WL 652812, at *5 (6th Cir. Jan. 27, 2023) (observing that “most firearms offenders have at least 

one prior conviction for a violent offense . . . , federal firearms offenders in general are the most 

likely to recidivate, . . . and a connection to drugs is not irregular in firearm possession cases”) 

(citations and internal quotation marks omitted). Since “a characteristic shared by 60% to 70% 

of offenders cannot remove [a defendant’s] case from the heartland” of typical cases, the 

“circumstances [here] appear unexceptional.” Id. (quoting United States v. Sims, 800 F. App’x 

383, 390 (6th Cir. 2020) (Stranch, J., dissenting)). 
No. 23-3588 United States v. Mitchell Page 13

But “Mitchell’s prison disciplinary record removes this case from the” run-of the-mill 

firearms-possession case. See id. As we have discussed previously, the court spent a 

considerable portion of the sentencing hearing discussing Mitchell’s poor institutional 

adjustment, which is relevant because “[t]he Guidelines do not directly encompass [Mitchell’s] 

past conduct in prison.” See id. And the court similarly considered Mitchell’s juvenile-crime 

record and violations of judicial-release conditions, which were also unaccounted for in the 

Guidelines. The court therefore concluded that an upward variance was necessary for “adequate 

deterrence” and to “protect the public.” In sum, several reasons support the district court’s 

decision to vary upward. See Sims, 800 F. App’x at 386. 

This case is also distinguishable from other cases in which this court has found a sentence 

to be substantively unreasonable. In United States v. Warren, 771 F. App’x 637, 643 (6th 

Cir. 2016), for example, this court held that a sentence was substantively unreasonable because 

the district court doubled the maximum recommended sentence based solely on the defendant’s 

criminal record. See also United States v. Brown, 828 F. App’x 256, 260–62 (6th Cir. 2016) 

(holding a sentence substantively unreasonable for virtually the same reasons as in Warren).

Here, by contrast, the district court varied upward by a more modest 24% from the high 

end of the Guidelines range. See United States v. Perez-Rodriguez, 960 F.3d 748, 755 (6th Cir. 

2020) (“[W]e may consider the percentage of variance from the specified Guidelines range or the 

number of months of the sentence.”). This is not to say that a similar variance might not be 

substantively unreasonable in other circumstances. See id. at 756 (acknowledging that 

“sentences must be fashioned on an individual basis”). But because the court considered various 

other factors not accounted for in the Guidelines (as well as discussing each 18 U.S.C. § 3553(a) 

factor) in fashioning a relatively modest upward variance, we are satisfied that it had 

“sufficiently compelling” justifications for the upward variance. See id. at 757. 

C. The district court did not plainly err by ordering Mitchell’s federal sentence to 

run consecutively to any state sentence 

Mitchell finally argues that the district court erred by ordering that his sentence run 

consecutively to any term of imprisonment arising out of any state-court conviction or parole 

violation. He maintains that the court failed to (1) identify any pending state sentence or parole 
No. 23-3588 United States v. Mitchell Page 14

violation, (2) discuss the § 3553(a) factors with respect to ordering that his sentence run 

consecutively, and (3) acknowledge the relevant guidance in the Sentencing Guidelines. 

Because Mitchell did not object to the court’s imposition of a consecutive sentence, we review 

his claim under the plain-error standard. See United States v. Potts, 947 F.3d 357, 364 (6th Cir. 

2020).

1. The district court did not need to identify any pending state sentence

According to Mitchell, the district court erred in ordering his sentence to run 

consecutively to any term of imprisonment arising out of a state-court conviction or parole 

violation because “there was no specific evidence identified of a preexisting or pending state 

sentence or parole violation involving imprisonment ‘time.’” He therefore argues that the district 

court needed to (1) identify a specific sentence or parole violation, or (2) acknowledge that an 

indeterminate sentence is pending. 

Mitchell’s argument, however, has already been rejected by this court in United States

v. Fox, No. 20, 2021 WL 3747190, at *4 (6th Cir. Aug. 25, 2021). In Fox, the defendant had 

been released from state prison and had no further sentence unless he violated parole. He 

“argue[d] on appeal that since the state had not charged him with a parole violation, there was no 

undischarged term of imprisonment, and that the district court erred in ordering his federal 

sentence to run consecutively to a non-existent sentence.” Id. (internal quotation marks omitted). 

But this court rejected that argument, noting that “District Courts have discretion to impose 

sentences that run consecutively or concurrently to any ‘undischarged term of imprisonment’ 

pursuant to 18 U.S.C. § 3584 and U.S.S.G. § 5G1.3(d).” Id. (citation omitted).

So too here. Like the defendant in Fox, Mitchell was released from state prison but was 

still “under a criminal justice sentence” that could have resulted in his return to prison if he 

violated certain conditions while released. That the court failed to identify “specific evidence . . . 

of a preexisting or pending state sentence” is not plainly erroneous for the reasons explained in 

Fox. The court therefore did not commit plain error by failing to identify any pending state 

sentences. 
No. 23-3588 United States v. Mitchell Page 15

2. The district court did not plainly err by failing to explicitly discuss the 

18 U.S.C. § 3553(a) sentencing factors when imposing a consecutive 

sentence 

“When a defendant is serving an undischarged prior sentence, the district court may 

impose a consecutive or concurrent sentence. The court must consider the factors listed in 

18 U.S.C. § 3553(a) in making this determination. Furthermore, the court should also consider 

the relevant Guidelines recommendations and policy statements.” United States v. Berry, 565 

F.3d 332, 342 (6th Cir. 2009) (internal citations omitted). 

Mitchell contends that the district court erred because there was not “any discussion of 

how [the] §3553(a) [factors] related to the consecutive [sentence] finding.” He also maintains 

that the court failed to make “reference, expressly or implicitly, to the relevant guideline, 

§ 5G1.3 or its Application Note Guidance.” 

We first address Mitchell’s argument concerning the district court’s allegedly inadequate 

explanation of the § 3553(a) factors as they relate to his consecutive sentence. As we have 

previously explained, the district court thoroughly analyzed the § 3553(a) factors with respect to 

the sentence’s length. And when a court does so, it need not conduct a separate § 3553(a) 

analysis when deciding whether to impose a consecutive sentence. See Berry, 565 F.3d at 343 

(“Requiring district courts to conduct a separate Section 3553(a) analysis for the concurrent or 

consecutive nature of the sentence would be repetitious and unwarranted.”). The court must 

instead “make[] generally clear the rationale under which it has imposed the consecutive 

sentence.” United States v. Johnson, 640 F.3d 195, 209 (6th Cir. 2011) (emphasis in original) 

(quoting United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)). 

In this case, the district court made its rationale clear. Before imposing a consecutive 

sentence, the court noted that “since [Mitchell] had three separate cases of supervision for which 

he was under supervision, this time will be consecutive and not concurrent with any time the 

[state] parole authorities may deem appropriate.” The court therefore acknowledged the 

“indeterminate nature, as well as the separate nature of the state and federal offenses,” see Berry, 

565 F.3d at 343, when considering whether a consecutive sentence was appropriate. A similarly 

brief explanation was provided by the district court in Berry, and this court held that the 
No. 23-3588 United States v. Mitchell Page 16

explanation was sufficient because of the prior extensive analysis of the § 3553(a) factors. Id. 

(finding no error where the only explicit reference justifying a consecutive sentence was that the 

“[s]entences are to be served concurrently with respect to each other, but the court in the exercise 

of its discretion direct[s] that they be served consecutive to [the state sentence]”). We are 

therefore persuaded that the district court’s brief explanation is adequate under the plain-error 

standard. 

Mitchell relatedly argues that the district court erred by not explicitly discussing 

Application Note 4(A) of § 5G1.3. This Application Note “articulates factors [that] sentencing 

courts should consider before deciding whether to run state and federal sentences consecutively.” 

United States v. Potts, 947 F.3d 357, 369 (6th Cir. 2020). These factors include

(1) the § 3553(a) factors; (2) the type and length of the prior undischarged 

sentence; (3) the time served and likely to be served on the undischarged 

sentence; (4) the procedural posture of the undischarged sentence (whether it was 

imposed in state or federal court and when it was imposed); and (5) any other 

relevant circumstance.

Id. 

Mitchell maintains that the district court failed to heed these factors. Undermining his 

position, however, is this court’s decision in United States v. Potts, 947 F.3d 357 (6th Cir. 2020). 

In that case, this court explained that “we have previously addressed whether a § 5G1.3 analysis 

requires a district court to engage in a separate recitation of the Guidelines provision or its 

underlying considerations. And we have not imposed such a requirement.” Id. at 369. “Instead, 

reviewing the totality of the record, we ask whether the district court, in imposing consecutive 

sentences, followed the rationale provided in Application Note 4(A).” Id. (citation and internal 

quotation marks omitted). “So long as [the] rationale is generally clear, either in a statement by 

the district court or by reference to the [presentence report], the district court does not abuse its 

discretion (let alone commit plain error).” Id. (citation and internal quotation marks omitted).

“[T]he totality of the record” in the present case demonstrates that the district court 

followed the rationale provided in Application Note 4(A). See id. True enough, the court did not 

explicitly reference § 5G1.3 or Application Note 4. But under Potts, although preferred, this was 

not required. The court instead “engaged in an extensive discussion of the § 3553(a) factors 
No. 23-3588 United States v. Mitchell Page 17

before fashioning its sentence, [one of the] consideration[s] in § 5G1.3 Application Note 4(A).” 

See id. It also referenced the presentence report’s acknowledgment of Mitchell’s “three separate 

cases” for which he was currently under “criminal justice sentence[s].” 

The “numerous violations of supervised conditions” that Mitchell had previously 

committed indicated to the district court that he might again have his supervision revoked, which 

fostered uncertainty about Mitchell’s future state imprisonment. That uncertainty appears to be 

why the court ordered the time to be consecutive to “whatever time is imposed by parole 

authorities or any other court related to his state court [convictions].” “[T]hese considerations are 

sufficient to support the decision to impose a consecutive sentence.” Potts, 947 F.3d at 370. We 

therefore conclude that the district court did not plainly err in this regard. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.