NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0451n.06

No. 19-4001

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROGER PATRICK,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE 

NORTHERN DISTRICT OF 

OHIO

BEFORE: GIBBONS, GRIFFIN, and THAPAR, Circuit Judges.

GRIFFIN, Circuit Judge:

After defendant Roger Patrick pleaded guilty to a federal gun charge, the district court 

imposed an above-guidelines sentence of 36 months of imprisonment. Patrick challenges the 

procedural and substantive reasonableness of his sentence. Finding no error in the district court’s 

decision to vary upward, we affirm. 

I.

In November 2018, Patrick sent a text message to the mother of his child, asking to see the 

child. When she did not reply quickly enough, Patrick drove to her residence and began yelling 

and banging on the door and windows. The woman called the police from inside, but by the time 

officers arrived, Patrick had left in his car. Before long, Patrick returned, and when the officers 

approached him, he immediately put his hands outside of the vehicle and informed them he had a 
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gun under his seat. The officers searched the car, found a pistol loaded with ammunition, and 

arrested Patrick. 

A federal grand jury indicted Patrick for being a felon in possession of a firearm and 

ammunition, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty without a plea agreement. 

The United States Probation Office conducted a presentence investigation and prepared a report 

(“PSR”) listing Patrick’s offense level as 12 and his criminal history category as IV. This resulted 

in a range under the Sentencing Guidelines of 21 to 27 months. At sentencing, the district court 

varied upwards from the guidelines range and sentenced Patrick to 36 months of incarceration

followed by 3 years of supervised release. Patrick timely appealed. 

II.

We review the procedural and substantive reasonableness of a sentence for abuse of 

discretion. United States v. Collins, 828 F.3d 386, 388 (6th Cir. 2016). 

A.

With respect to procedural reasonableness, a district court necessarily abuses its sentencing 

discretion if it fails to “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, [or] adequately explain 

why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). When 

imposing a sentence, a district court does not need to recite the § 3553(a) factors; it merely needs 

to provide enough of an explanation to show that it has considered the parties’ arguments and has 

a reasoned basis for exercising its authority. United States v. Jeross, 521 F.3d 562, 583 (6th Cir. 

2008).
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The § 3553(a) factors include “the need to avoid unwarranted sentence disparities among 

defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. 

§ 3553(a)(6). At the sentencing hearing, the district court discussed this factor and referred to data 

compiled by the United States Sentencing Commission “comparing offenses in each of the six 

criminal history categories.” The court noted that for fiscal year 2017, “[t]he average sentence 

nationally for the offenses involving 2K2.1 with a criminal history category IV is 54 months.” The 

district court reiterated that statistic before imposing Patrick’s sentence:

So for all those reasons, pursuant to the Sentencing Reform Act of 1984 and 18 

United States Code 3553(a), I will vary upward from the 27 months. Again, the 

[average] sentence nationally is 54 months. I don’t believe that high is warranted. 

But certainly 27 months is not sufficient. And for those reasons I will impose 36 

months custody in the Bureau of Prisons.

Patrick argues that the district court erred by anchoring its sentencing decision to the 

national average for all USSG § 2K2.1 defendants, regardless of their offense level.1 Patrick’s 

base offense level was 14, which is on the low end for 18 U.S.C. § 922(g)(1) convictions. And a

two-level reduction for acceptance of responsibility brought his total offense level down to 12. 

See USSG § 3E1.1(a). Patrick argues that the district court thus compared him to dissimilar 

defendants who engaged in more serious conduct. According to Patrick, “[a] more appropriate 

comparison would have been the average sentence for § 2K2.1 offenses with a base level offense 

of 12, with a criminal history category of IV.” 

1The government argues that we should review this claim only for plain error because 

Patrick failed to raise it in the district court. At the end of the sentencing hearing, Patrick’s counsel 

objected to the sentence imposed and “ask[ed] the Court to reconsider and impose a sentence 

within the guidelines for reasons previously stated.” According to the government, this objection 

was too vague to preserve for full appellate review the argument he makes now. We need not 

resolve this question, however, because Patrick’s claim fails regardless of whether plain-error 

review applies. 
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The problem with Patrick’s argument is that the text of § 3553(a)(6) focuses on comparing

the sentences of similarly situated defendants, not identically situated ones. Here, the district court 

limited its comparison to defendants who, like Patrick, had a criminal history category of IV and 

had committed offenses involving receipt, possession, or transportation of firearms or ammunition. 

See USSG § 2K2.1. We have repeatedly approved of district courts using such national statistics 

in assessing the need to avoid unwarranted sentence disparities. See United States v. Boucher, 937 

F.3d 702, 713 (6th Cir. 2019); United States v. Stock, 685 F.3d 621, 629 n.6 (6th Cir. 2012); see 

also United States v. Clemmons, 757 F. App’x 413, 418–19 (6th Cir. 2018). Accordingly, the 

district court did not abuse its discretion by relying on this data in considering the § 3553(a)(6)

factor. 

B.

Patrick also challenges the substantive reasonableness of his sentence. An aboveGuidelines sentence is neither presumptively reasonable nor presumptively unreasonable. United

States v. Robinson, 813 F.3d 251, 264 (6th Cir. 2016). We review it for abuse of discretion, 

“whether . . . just outside, or significantly outside the Guidelines range.” United States v.

Cunningham, 669 F.3d 723, 728 (6th Cir. 2012) (citation omitted). But “a major departure should 

be supported by a more significant justification than a minor one.” Gall v. United States, 552 U.S.

38, 50 (2007). We consider a sentence to be substantively unreasonable where the district court 

“place[s] 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. It is in essence a claim that a sentence is “too long (if a 

defendant appeals) or too short (if the government appeals).” Id. Our review “will, of course, take 

into account the totality of the circumstances, including the extent of any variance from the 

Guidelines range.” Gall, 552 U.S. at 51. But we “must give due deference to the district court’s 
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decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.; see United 

States v. Johnson, 934 F.3d 498, 502 (6th Cir. 2019) (“Reasoned judgments about the appropriate 

length of a sentence are largely for trial courts, not appellate courts.”). 

Here, Patrick argues that the district court “gave nearly no consideration to its charge to 

issue a sentence not greater than necessary to fulfill its the [sic] purposes of § 3553(a)(2), and to 

promote respect for the law.” The record belies this assertion. At sentencing, the district court 

voiced its concern that “this is the defendant’s fifth felony conviction, his fourth involving a 

firearm. It doesn’t appear that any punishment has been sufficient to deter the defendant from 

criminal activity, more specifically activity involving firearms.” The court also highlighted the 

seriousness of Patrick’s prior conviction for robbery with a firearm, and that he was on parole at 

the time of his arrest in the instant matter. From these facts, the district court concluded that Patrick 

“[i]s a danger to the community” and that “the Court does not believe that 27 months is sufficient 

but not greater than necessary to impress upon the defendant that he cannot possess firearms.” The 

court also specifically noted that the 54-month average from the statistical data was not warranted

here before stating that “36 months is sufficient but not greater than necessary.” Thus, the 

sentencing transcript shows that the district court carefully considered the factors listed in 

§ 3553(a)(2). 

Patrick also claims that the district court “did not give sufficient weight to [his] actions of 

cooperation and honesty” at sentencing. Again, the record shows that the district court carefully

considered those facts. At the hearing, the court remarked that “[i]t does appear, to [Patrick’s] 

credit, he was honest with law enforcement when stopped with the gun. So that is to his credit.” 

The district court made clear, however, that Patrick’s previous convictions and firearm use

nevertheless necessitated a higher sentence than the guidelines range provided. We find no abuse 
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of discretion in that conclusion. See Johnson, 934 F.3d at 499–500, 502 (affirming an upward 

variance to the statutory maximum where the defendant “had repeatedly violated the gunpossession laws and showed no signs of changing his ways”). 

III.

For these reasons, we affirm the district court’s judgment.