Court of Appeals for the Sixth Circuit Cases

United States v. T'Shaun Omar Jones

81 F.4th 591 • 2023-08-29

Citation81 F.4th 591

Date Filed2023-08-29

Docket22-1281

Cited18 times

StatusPublished

Full Opinion (html_with_citations)

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0200p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> Nos. 22-1280/1281
│
v. │
│
T’SHAUN OMAR JONES, │
Defendant-Appellant. │
┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 19-cr-202362 (22-1281)—George Caram Steeh, III, District Judge;
No. 21-cr-20435 (22-1280)—Gershwin A. Drain, District Judge.

Argued: April 27, 2023

Decided and Filed: August 29, 2023

Before: COOK, GRIFFIN, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Amanda Bashi, OFFICE OF THE FEDERAL COMMUNITY DEFENDER,
Detroit, Michigan, for Appellant in case 22-1280. Mark Chasteen, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee in case 22-1280. ON BRIEF:
Benton C. Martin, OFFICE OF THE FEDERAL COMMUNITY DEFENDER, Detroit,
Michigan, for Appellant in case 22-1280. Mark Chasteen, UNITED STATES ATTORNEY’S
OFFICE, Detroit, Michigan, for Appellee in case 22-1280. Meghan Sweeney Bean, UNITED
STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee in case 22-1281.
Nos. 22-1280/1281 United States v. Jones Page 2

_________________

OPINION
_________________

NALBANDIAN, Circuit Judge. Officers arrested T’Shaun Jones, who had been on
supervised release, after he fired shots outside his house and fled inside. Under a plea
agreement, the district court imposed the agreed-upon ten-year sentence, which was above the
Guidelines range. Separately, Jones faced resentencing on his supervised release because the
firearm offense violated his supervised-release conditions. A different district court imposed a
24-month sentence for this violation—half to run concurrently with his firearm conviction and
half to run consecutively.

Jones challenges both the ten-year firearm sentence and the 24-month supervised-release
sentence. Because the district courts properly calculated Jones’s Guidelines range for the firearm
offense and imposed a reasonable sentence for the supervised-release violation, we AFFIRM.

On May 18, 2021, Detroit police responded to a shots-fired call. Witnesses reported that
T’Shaun Jones had been firing a gun outside his home all day. Police saw Jones fire one shot in
front of his home before he ran inside. And Jones refused to step outside. So police declared a
barricaded gunman situation. But Jones eventually came out of the house, and the officers
arrested him.

A grand jury indicted Jones on a single count of being a felon in possession of a firearm
in violation of

18 U.S.C. §§ 922

(g)(1), 924(e). The government and Jones negotiated a plea
agreement under Federal Rule of Criminal Procedure 11(c)(1)(C),1 and Jones pleaded guilty to

         1
           In a plea agreement under Rule 11(c)(1)(C), “the Government and a defendant ‘agree that a specific
sentence or sentencing range is the appropriate disposition of the case.’” Hughes v. United States,

138 S. Ct. 1765, 1773

 (2018) (quoting Fed. R. Crim. P. 11(c)(1)(C)). “In deciding whether to accept an agreement that includes a
specific sentence, the district court must consider the Sentencing Guidelines.”

Id.

 In other words, “[a] sentence
imposed pursuant to a Type-C agreement is no exception to the general rule that a defendant’s Guidelines range is
both the starting point and a basis for his ultimate sentence.”

Id. at 1776

. So here, for example, Jones’s plea
 Nos. 22-1280/1281                           United States v. Jones                                       Page 3


possessing a stolen firearm in violation of

18 U.S.C. §§ 922

(j) and 924(a)(2). Both parties
agreed that Jones should receive a ten-year sentence, well below the 15-year mandatory
minimum that would have applied if he had been classified as an armed career criminal. And
Jones “waive[d] any right” to appeal his sentence, so long as it “[did] not exceed the top of the
guideline range determined by the Court.” (22-1280, R. 22, Plea Agreement, p. 12.)

The presentence report (“PSR”) calculated Jones’s base offense level at 20, reflecting that
Jones had committed a firearm offense after committing a controlled substance offense. That’s
because Jones had been previously convicted of manufacturing or delivering a controlled
substance under Michigan Compiled Laws § 333.7401.

And the PSR also recommended a two-point increase because Jones “recklessly created a
substantial risk of death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer.” (22-1280, R. 32, Revised PSR, p. 7.) In all, the PSR calculated
Jones’s criminal history score at 14, his criminal history category as VI, and a recommended
Guidelines range of 77 to 96 months.

At sentencing, Jones objected to the PSR on two grounds. First, he argued that he should
not receive a sentence enhancement for reckless endangerment during flight. But the district
court rejected this argument. Second, Jones objected to the use of his prior controlled substance
offense under Michigan state law to increase his base offense level. Citing opinions by two
district courts, he argued that the definitions of the Controlled Substances Act determine whether
a state offense can count as a controlled substance offense under the Guidelines. And he claimed
that because Michigan’s controlled-substance statute is broader than the federal definition of the
relevant substances under the Controlled Substances Act, it couldn’t count toward an
enhancement. The district court disagreed and applied the enhancement. (22-1280, R. 36,
Sentencing Transcript, p. 9.)

agreement required the district court to “determine the defendant’s guideline range at sentencing.” (22-1280, R. 22,
Plea Agreement, p. 5.) And that’s why the Guidelines matter even though the parties stipulated to a ten-year
sentence.
Nos. 22-1280/1281 United States v. Jones Page 4

In the end, the district court recognized the PSR’s calculation of the Guidelines range but
still sentenced Jones to 120 months in prison based on the plea agreement. Jones timely
appealed.
B.

Complicating his case, Jones was on supervised release for attempted transporting of an
individual to engage in prostitution when he committed his firearm offense. Among the
conditions of Jones’s release were that he could not commit another crime; that he could not
own, possess, or have access to a firearm; and that he had to notify his probation officer if he
were arrested or questioned by a law enforcement officer. Jones’s probation officer found that he
had violated all three conditions by committing the firearm offense.

At his separate supervised-release sentencing, before a different judge, Jones requested
that the court impose a concurrent sentence, while the government requested an 18-month
consecutive sentence.2

In determining the appropriate sentence, the district court noted that, together with the
Guidelines range, it had to consider the

18 U.S.C. § 3553

(a) factors, including “the nature and
circumstances of the offense, the history and characteristics of the defendant and the need to
avoid unwarranted sentencing disparities among similarly situated defendants.” (22-1281, R. 23,
Sentencing Transcript, p. 12–13.) The court said that Jones’s firearm offense was “serious.” (Id.
at 13.) It noted that while the supervised-release violation was “related to the underlying
offense,” it was “a violation in its own right,” and an appropriate sentence must account “for
th[at] breach of trust.” (Id. at 14.) So the court found that “the advisory range [wa]s an
appropriate measure of the seriousness of the offense.” (Id.)

The court considered mitigating circumstances, including that Jones’s prior offenses had
resulted in relatively low sentences, and noted that the longest sentence Jones had ever received

2
Jones’s plea agreement for the firearm offense specified that he could request that his 120-month sentence
“run concurrently with any term of imprisonment imposed for the violation of his supervised release.” (22-1280, R.
22, Plea Agreement, p. 8.) But he “underst[ood]” that the court might nonetheless order that his term of
imprisonment for the supervised-release violation run “concurrently or consecutively with the term of imprisonment
imposed in [the firearm] case.” (Id.)
Nos. 22-1280/1281 United States v. Jones Page 5

was 27 months. So, in the district court’s view, Jones’s new 120-month, above-Guidelines
sentence was “a pretty big jump.” (Id. at 14.) The court then imposed a 24-month sentence, half
of which would be served consecutively to the firearm offense and half of which would be
served concurrently.

Jones objected, arguing that “it would have been reasonable to impose fully concurrent
sentences” and objected “to any consideration of the seriousness of the offense in imposing the
sentence.” (Id. at 17.) The court allowed the objection to stand but thought that it “made it clear
that the seriousness of the offense was the violation itself.” (Id.) Jones timely appealed.

II.

First, we’ll consider whether the district court erred in enhancing Jones’s base level
offense for a “controlled substance offense” using his prior drug conviction under Michigan state
law. Second, we’ll consider whether the district court erred in applying an enhancement for
reckless endangerment during flight.

We review a district court’s “legal interpretation of the Guidelines de novo and its factual
findings” for clear error. United States v. Byrd,

689 F.3d 636, 639

 (6th Cir. 2012) (citing United
States v. Stubblefield,

682 F.3d 502, 510

 (6th Cir. 2012)). And “[w]hether a prior conviction
counts as a predicate offense under the Guidelines is a question of law subject to de novo
review.” United States v. Havis,

927 F.3d 382, 384

(6th Cir. 2019) (en banc) (per curiam).

We first consider whether the district court erred in considering Jones’s prior conviction
under Michigan Compiled Law § 333.7401. The PSR calculated Jones’s base offense level
under U.S.S.G. § 2K2.1. Under that provision, a defendant receives a base offense level of 20 if
“the defendant committed any part of the instant offense subsequent to sustaining one felony
conviction of either a crime of violence or a controlled substance offense.” § 2K2.1(a)(4)(A).
Nos. 22-1280/1281 United States v. Jones Page 6

A “controlled substance offense” is

an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).

Jones’s argument proceeds in two steps. First, he argues that the Guidelines definition of
a “controlled substance offense” is limited to substances criminalized under the Controlled
Substances Act, and that the court cannot look to state law to apply the enhancement.3 Second,
he argues that Michigan’s controlled substance statute is broader than the Controlled Substances
Act, so his prior Michigan conviction cannot be used as a predicate offense.4 Because we
disagree with him at the first step, we need not reach the second.

We first consider whether the Guidelines allow us to use state law to define a controlled
substance offense. “In construing the Guidelines, we employ the traditional tools of statutory
interpretation, beginning with the text’s plain meaning.” United States v. Babcock,

753 F.3d 587, 591

 (6th Cir. 2014). “[I]f the language is unambiguous,” the inquiry “ends there.” Perez v.
Postal Police Officers Ass’n,

736 F.3d 736, 740

 (6th Cir. 2013). And in evaluating text, “we
discover a statute’s plain meaning by looking at the language and design of the statute as a
whole.”

Id. at 741

 (cleaned up). Only “[i]f the text alone does not admit a single conclusive
answer” do we “draw on a broader range of interpretive tools.”

Id. at 740

.

        We start with the plain language of § 4B1.2(b).                  It defines a “controlled substance
offense” as an “offense under federal or state law, punishable by imprisonment for a term

        3
          We have rejected this argument in unpublished caselaw, see, e.g., United States v. Smith,

681 F. App’x 483, 489

 (6th Cir. 2017), but we take this opportunity to address the argument in greater depth now.
        4
          To determine whether a state offense can be a predicate controlled substance offense under the Guidelines,
we use the categorical approach. United States v. Montanez,

442 F.3d 485, 489, 491

 (6th Cir. 2006). That means
we look “only to the statutory definitions of the prior offenses, and not to the particular facts underlying those
convictions.” Taylor v. United States,

495 U.S. 575, 600

 (1990). So we “compare the elements of the statute
forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as
commonly understood. The prior conviction qualifies as [a] predicate only if the statute’s elements are the same as,
or narrower than, those of the generic offense.” Descamps v. United States,

570 U.S. 254, 257

 (2013).
 Nos. 22-1280/1281                     United States v. Jones                              Page 7


exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of
a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or
a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
§ 4B1.2(b) (emphasis added).

       From the start, there’s some circularity here because a “controlled substance offense” is
defined as an “offense . . . that prohibits . . . a controlled substance.” Id. And the question is
whether an offense that prohibits a controlled substance must prohibit a federally controlled
substance under the Controlled Substances Act to qualify, given that the plain language of
§ 4B1.2(b) incorporates both state and federal law into its definition.

       To tackle that question, we’ll start with what we know from § 4B1.2(b) about a
“controlled substance offense”: (1) it may be under either state law or federal law; (2) the offense
must carry a sentence above one year; and (3) the offense must prohibit “the manufacture,
import, export, distribution, or dispensing” of a controlled or counterfeit substance or possession
with the intent to do so. Id. The Guidelines don’t define “controlled substance,” so we look to
its ordinary meaning: “a drug regulated by law.” United States v. Lewis,

58 F.4th 764, 769

 (3d
Cir. 2023).

       Bottom line, whether the “offense” is a state-law offense or a federal offense, it must
carry a particular term of imprisonment and it must prohibit certain activity involving a drug
regulated by law. And the “controlled substance offense” may be a violation “under” state law.

       What we don’t see in the text is an imperative that the Controlled Substances Act serve as
the referent for what state-law provisions can qualify as controlled substance offenses. In fact,
we see § 4B1.2(b) referencing “offense[s]” under “state law” in defining controlled substance
offenses.

       And if the definition of “controlled substance offense” only referred to federal law, we’d
expect to see a reference to the Controlled Substances Act. When the Guidelines require
uniformity, the text of the Guidelines confirms that’s the case. For instance, U.S.S.G. § 2D1.1,
which sets the offense level for drug-related offenses, includes “explicit references to federal
statutes and other federal Guidelines provisions.” United States v. Ward,

972 F.3d 364, 373

 (4th
 Nos. 22-1280/1281                            United States v. Jones                                        Page 8


Cir. 2020) (citing § 2D1.1(a), (b)(3), (b)(16), (b)(18), (d)(1)). And even § 4B1.2 itself refers to
federal law,

26 U.S.C. § 5845

(a), in defining “crime of violence.” But § 4B1.2(b) doesn’t do the
same for controlled substance offenses.

         Instead, § 4B1.2(b) incorporates both state and federal law into a “controlled substance
offense” analysis. So the context of the Guidelines confirms what the text suggests—state-law
controlled substance offenses need not define controlled substances according to the Controlled
Substances Act to count under § 4B1.2(b). See United States v. Fitzgerald,

906 F.3d 437, 442

(6th Cir. 2018) (explaining that “[i]f a word in isolation is susceptible of multiple meanings,” we
“work outward and examine . . . its placement and purpose in the statutory scheme” (cleaned
up)).

         In short, we see no textual limit that a controlled substance offense must contain a
substance listed in the Controlled Substances Act, and we decline to add such a requirement here.
See Hoge v. Honda of Am. Mfg., Inc.,

384 F.3d 238, 246

 (6th Cir. 2004) (“[W]e ordinarily resist
reading words or elements into a statute that do not appear on its face.” (quoting Bates v. United
States,

522 U.S. 23, 29

 (1997))).

         So, in line with our unpublished decisions, we hold that a state-law controlled substance
offense can be used to calculate the base offense level under § 2K2.1(a)(4)(A), even if it defines
a controlled substance differently from the Controlled Substances Act. See United States v.
Smith,

681 F. App’x 483, 489

 (6th Cir. 2017) (“Because there is no requirement that the
particular controlled substance underlying a state conviction also be controlled by the federal
government, and because the Guidelines specifically include offenses under state law in § 4B1.2,
the fact that [a state] may have criminalized . . . some substances that are not criminalized under
federal law does not prevent conduct prohibited under the [state] statute from qualifying,
categorically, as a predicate offense.”); United States v. Sheffey,

818 F. App’x 513

, 519–20 (6th
Cir. 2020) (same); cf. United States v. Whitfield,

726 F. App’x 373

, 376 (6th Cir. 2018) (“[T]he
States possess primary authority for defining and enforcing the criminal law.” (cleaned up)).5



         5
         Today, we take one side of a circuit split. Using a textual analysis, the Third, Fourth, Seventh, Eighth, and
Tenth Circuits have held that courts may consider state-law controlled substance offenses under § 2K2.1(a)(4)(A).
 Nos. 22-1280/1281                             United States v. Jones                                         Page 9


         Jones argues that a federal-law-only approach is necessary to ensure that the Guidelines
are interpreted uniformly. (22-1280, Appellant Br., p. 12–16.) But his argument asks us to
ignore text for the broader goal of uniformity. We decline to do so and go with the text of the
Guidelines. See United States v. Ruth,

966 F.3d 642, 654

 (7th Cir. 2020) (“Congress was well
aware of the significant variations that existed in state criminal law.” (quoting Whitfield, 726 F.
App’x at 376)).

         In sum, because a “controlled substance offense” under U.S.S.G. § 4B1.2(b) includes
crimes committed under state law and Jones makes no other argument that his state conviction
doesn’t meet the standard of “controlled substance offense” under § 4B1.2(b), we decline to
disturb the district court’s application of this enhancement.6

                                                          C.

         Jones next argues that the court erred in applying a sentencing enhancement for reckless
endangerment during flight. We “review the district court’s factfinding for clear error” and give

See Lewis, 58 F.4th at 769–71; Ward, 972 F.3d at 371–74; United States v. Ruth,

966 F.3d 642

, 651–54 (7th Cir.
2020); United States v. Henderson,

11 F.4th 713

, 718–19 (8th Cir. 2021), cert. denied,

142 S. Ct. 1696

 (2022);
United States v. Jones,

15 F.4th 1288

, 1291–96 (10th Cir. 2021).
         On the other side of the ledger, the Second, Fifth, and Ninth Circuits have only defined controlled
substances according to the Controlled Substances Act, refusing to look at state law in that determination. See
United States v. Townsend,

897 F.3d 66, 68, 71

 (2d Cir. 2018); United States v. Gomez-Alvarez,

781 F.3d 787

, 793–
94 (5th Cir. 2015) (encountering a different Guidelines provision but only looking to federal law to define
“controlled substance”); United States v. Bautista,

989 F.3d 698

, 702–04 (9th Cir. 2021). It’s worth noting that
these circuits employ either a presumption that “the application of a federal law does not depend on state law unless
Congress plainly indicates otherwise,” see Townsend,

897 F.3d at 71

 (citing Jerome v. United States,

318 U.S. 101, 104

 (1943)), or turn to the “stated goals of both the Guidelines and the categorical approach,” Bautista,

989 F.3d at 702

; Gomez-Alvarez, 781 F.3d at 793–94 (adopting the reasoning of a Ninth Circuit case that looked to the broad
“vision” of uniformity). But there’s no need to apply this presumption or turn to broad “goals” because the text of
the Guidelines is clear—and it incorporates state law as an avenue for controlled substance offenses. See Perez,

736 F.3d at 741

 (explaining that only “if the text alone does not admit a single conclusive answer,” do we “draw on a
broader range of interpretive tools”).
           6
             Jones argues in the alternative that the rule of lenity should apply. (22-1280, Reply Br., p. 15–16.) Jones
did not raise this issue in his opening brief, despite discussing the construction of § 4B1.2(b). “We have consistently
held . . . that arguments made to us for the first time in a reply brief are waived.” Sanborn v. Parker,

629 F.3d 554, 579

 (6th Cir. 2010). And, though the rule of lenity applies to interpretation of the Guidelines, United States v.
Henry,

819 F.3d 856, 871

 (6th Cir. 2016), it doesn’t have a place here. “[T]he rule of lenity only applies if, after
considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute,
such that the Court must simply guess as to what Congress intended.” United States v. Castleman,

572 U.S. 157

,
172–73 (2014) (quoting Barber v. Thomas,

560 U.S. 474, 488

 (2010)). Because the structure and plain meaning of
the text establish that the court may consider state law in determining predicate offenses under § 4B1.2(b), there is
no “grievous ambiguity.” Id.
 Nos. 22-1280/1281                      United States v. Jones                               Page 10


“due deference” to a district court’s application of the Guidelines to the facts. United States v.
Wallace,

51 F.4th 177, 183

 (6th Cir. 2022) (citation omitted).

       The Guidelines provide for a two-level enhancement where “the defendant recklessly
created a substantial risk of death or serious bodily injury to another person in the course of
fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. For this provision to apply, the
government had to show that Jones

       (1) recklessly, (2) created a substantial risk of death or serious bodily injury, (3) to
       another person, (4) in the course of fleeing from a law enforcement officer,
       (5) and that this conduct occurred during the commission of the offense of
       conviction, in preparation for that offense, or in the course of attempting to avoid
       detection or responsibility for that offense.

United States v. Mukes,

980 F.3d 526, 536

 (6th Cir. 2020) (quoting United States v. Dial,

524 F.3d 783

, 786–87 (6th Cir. 2008)). And the government had to “link a specific aspect of the
flight with a specific risk.”

Id.

 (cleaned up).

       A defendant who “draw[s] a gun in front of officers,” and in doing so “provoke[s] a
substantial risk that officers would open fire and perhaps injure other officers or bystanders”
would be subject to the enhancement. United States v. Brooks,

763 F. App’x 434

, 440 (6th Cir.
2019) (explaining that this enhancement applies even when officers don’t “know whether a
firearm is loaded or unloaded” because “pulling out any firearm in view of police officers while
in flight creates a risk that officers might fire their weapons” (citing United States v. Tasaki,

510 F. App’x 441

, 444–45 (6th Cir. 2013)).

       Here, witnesses reported that Jones had been shooting in the air outside his home all day.
Police observed Jones fire one shot in front of his residence before he fled inside. Jones
remained in the residence with two other individuals and refused to come out. At sentencing, the
government argued that based on this conduct, Jones “created a substantial risk to everyone
involved,” including Jones, “the officers involved, and the people inside the residence and
outside.” (22-1280, R. 36, Sentencing Transcript, p. 6.) The district court agreed and applied the
enhancement. And under our caselaw, the district court didn’t abuse its discretion in doing so.
Jones’s actions created a “substantial risk” that officers would fire and “injure” innocent
bystanders. Brooks, 763 F. App’x at 440.
 Nos. 22-1280/1281                      United States v. Jones                                Page 11


       At sentencing and now before us, Jones points to United States v. Fields,

210 F.3d 386

(9th Cir. 2000) (unpublished table decision), for the proposition that, even when a defendant
barricades himself in a residence with other people, he should not receive a reckless
endangerment enhancement. The district court disagreed. And Jones argues that this was error.
(22-1280, Appellant Br., p. 29.)

       Fields didn’t bind the district court, and it doesn’t bind us either. Under our caselaw, the
facts of this case warranted the enhancement. Importantly, even considering Fields, our case is
distinguishable on the facts. In Fields, the district court had “attribut[ed] others’ conduct to [the]
defendants,” rather than look at the defendants’ conduct alone in determining whether the
enhancement should apply. See 210 F.3d at *4. And the PSR in Fields “fail[ed] to attribute any
wrongful conduct regarding the actual flight to either defendant.”

Id.

   But Jones’s PSR
established that he fired a shot in front of the officers before fleeing into his home and creating a
barricaded gunman situation. So unlike in Fields, the facts establish that Jones’s own actions
created a risk that officers would open fire in pursuit, putting Jones, the officers, and bystanders
at risk of death or serious bodily harm.

       In all, the district court did not err in finding that Jones recklessly created a risk of serious
bodily harm during his flight from police.

                                                 III.

       We next turn to Jones’s challenges to his sentence for violating his supervised release.
He argues that the district court imposed a procedurally and substantively unreasonable two-year
sentence, with half to be served consecutively and half to be served concurrently to his ten-year
firearm sentence. Where a defendant properly objects below, we review claims of procedural
and substantive unreasonableness for an abuse of discretion. Gall v. United States,

552 U.S. 38, 51

 (2007).

                                                  A.

       We first review the procedural reasonableness of Jones’s sentence.              Jones properly
objected, so we review this argument for abuse of discretion.

Id.

 From the start, it’s Jones’s
 Nos. 22-1280/1281                      United States v. Jones                              Page 12


burden to establish that the district court imposed a procedurally unreasonable sentence. United
States v. Sands,

4 F.4th 417, 420

 (6th Cir. 2021).

        And, in determining whether he has met that burden, we evaluate whether the district
court

        (1) properly calculated the applicable advisory Guidelines range; (2) considered
        the other [18 U.S.C.] § 3553(a) factors as well as the parties’ arguments for a
        sentence outside the Guidelines range; and (3) adequately articulated its reasoning
        for imposing the particular sentence chosen, including any rejection of the parties’
        arguments for an outside-Guidelines sentence and any decision to deviate from
        the advisory Guidelines range.

United States v. Adams,

873 F.3d 512, 517

 (6th Cir. 2017) (alteration in original) (quoting United
States v. Bolds,

511 F.3d 568, 581

 (6th Cir. 2007)).

        A district court may revoke a defendant’s supervised release “after considering the factors
set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).”

18 U.S.C. § 3583

(e).      Section 3553(a)(2)(A), which requires the sentence “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense,” is not included as one of the considerations of § 3583(e). Still, courts may, but are not
required to, consider § 3553(a)(2)(A) during sentencing for a supervised-release violation. See
United States v. Lewis,

498 F.3d 393

, 399–400 (6th Cir. 2007).

        Jones argues that his sentence was procedurally unreasonable because the district court
treated the seriousness of his offense under § 3553(a)(2)(A) as a mandatory factor in a
supervised-release resentencing, even though that factor is only discretionary.

        In coming up with the appropriate sentence for Jones, the court said that it would
“consider the relevant factors set out by Congress in [18 U.S.C. §] 3553(a) . . . . This includes
considering the need for a sentence to promote respect for the law, deter criminal conduct,
protect the public from future crimes to be committed by the defendant, and promote
rehabilitation.” (22-1281, R. 23, Sentencing Transcript, p. 13.) And the court observed that it
“[wa]s also to consider the nature and circumstances of the offense,” which it said were
“serious.” (Id.)
 Nos. 22-1280/1281                             United States v. Jones                                      Page 13


         Jones argues that these statements reflect that the court thought it had to consider
§ 3553(a)(2)(A) in imposing its sentence—even though consideration of that factor is
discretionary. (22-1281, Reply Br., p. 1.) We disagree. At no point did the court say that it was
required to consider § 3553(a)(2)(A).             Instead, it considered the seriousness of the firearm
offense and the underlying prostitution offense with the other § 3553(a) factors enumerated in

18 U.S.C. § 3583

(e), which it was allowed do. So Jones hasn’t met his burden to show that the
district court abused its discretion. Lewis, 498 F.3d at 399–400.7 And with that, Jones hasn’t
demonstrated that his sentence was procedurally unreasonable.

                                                          B.

         Finally, Jones argues that his two-year sentence for the violation of his supervised release
was substantively unreasonable. We give a within-Guidelines sentence a rebuttable presumption
of reasonableness and review for an abuse of discretion. United States v. Adams,

873 F.3d 512, 520

 (6th Cir. 2017). Substantive reasonableness focuses on whether a “sentence is too long (if a
defendant appeals) or too short (if the government appeals).” United States v. Rayyan,

885 F.3d 436, 442

 (6th Cir. 2018). “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.” Id.

         The court calculated Jones’s Guidelines range as 18 to 24 months. Jones requested that
the court apply the sentence concurrently to his sentence for the firearm violation, while the
government requested that it impose an 18-month consecutive sentence. The court chose to
impose a 24-month sentence, half of which would be served consecutively and half of which
would be served concurrently. And this was more favorable to Jones than the Guidelines
recommendation. U.S.S.G. § 7B1.3(f) (“Any term of imprisonment imposed upon the revocation
of probation or supervised release shall be ordered to be served consecutively to any sentence of
imprisonment that the defendant is serving . . . .”).

         7
           The government seems to argue that Jones has no viable argument about § 3553(a)(2)(A) because in its
view that provision only applies to the underlying prostitution offense, and, according to the government, the district
court didn’t discuss the prostitution offense in determining the seriousness of the offense. (22-1281, Appellee Br., p.
18.) But the government’s view is incorrect because the district court did consider the prostitution offense, as it was
allowed to do under § 3553(a)(2)(A). United States v. Johnson,

640 F.3d 195, 204

 (6th Cir. 2011). Even so, the
district court also properly considered the firearm offense—the violation conduct—when it sanctioned Jones’s
“breach of trust.” United States v. Morris,

71 F.4th 475, 482

 (6th Cir. 2023).
 Nos. 22-1280/1281                             United States v. Jones                                       Page 14


         Jones argues that his sentence was substantively unreasonable because the court placed
too much weight on the seriousness of the offense. Citing Third Circuit precedent, Jones argues
that even if the consideration of the seriousness of the offense is not “per se unreasonable,” the
court may err in placing “undue weight” on that factor. (22-1281, Appellant Br., p. 16–17 (citing
United States v. Young,

634 F.3d 233, 241

 (3d Cir. 2011).)

         The court did not place undue weight on the seriousness of Jones’s offense. The court
“consider[ed] the relevant factors set out by Congress in [18 U.S.C. §] 3553(a) . . . [including but
not limited to] the need for a sentence to promote respect for the law, deter criminal conduct,
protect the public from future crimes to be committed by the defendant, and promote
rehabilitation.” (22-1281, R. 23, Sentencing Transcript, p. 13.) And the court noted that,
together, with the Guidelines, it had to consider “the nature and circumstances of the offense, the
history and characteristics of the defendant and the need to avoid unwarranted sentencing
disparities among similarly situated defendants.” (Id. at 12–13.) Further, it considered Jones’s
criminal history as a mitigating factor. (Id. at 14.)8 Although it discussed the seriousness of
Jones’s offense, nothing in the record suggests that it gave sole or undue weight to that factor.
         Because the court adequately weighed the § 3553(a) factors in imposing a within-
Guidelines sentence, his sentence was not substantively unreasonable.

                                                          IV.

         For these reasons, we affirm.




         8
           Jones argues that the court erred in not considering the recent death of his child’s mother and his fear that
his child would end up in foster care. (22-1281, Appellant Br., p. 17.) But we have found that a court’s failure to
explicitly address a particular mitigation argument isn’t enough to make a sentence unreasonable, especially when
the court considers other factors at length. United States v. Sogan,

388 F. App’x 521, 524

 (6th Cir. 2010) (per
curiam) (citing United States v. Berry,

565 F.3d 332

, 340–41 (6th Cir. 2009)).