Full Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0420n.06 Case No. 26-3068 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 20, 2026 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) ) DISTRICT OF OHIO DEANGELO SMITH, ) Defendant-Appellant. ) OPINION ) Before: GIBBONS, SUTTON, and DAVIS, Circuit Judges. DAVIS, Circuit Judge. Deangelo Smith violated the terms of his supervised release when police found him in possession of a firearm during a traffic stop. After his arrest, Smith pleaded guilty to being a felon in possession of a firearm. While detained on that charge and multiple supervised release violations, Smith and three others violently assaulted a fellow detainee, resulting in that detainee’s death. Smith’s supervised release violations and the substantive offense underlying one of those violations—the felon-in-possession offense—proceeded before different judges. But Smith’s involvement in the deadly assault while detained led both courts to vary upward to impose above-guidelines sentences. According to Smith, at his sentencing for the supervised release violation, the district court engaged in impermissible double counting when it based its variance on the same conduct that underlay the variance for the substantive offense. So his supervised release violation sentence, he No. 26-3068, United States v. Smith argues, is procedurally unreasonable. The sentence is also substantively unreasonable, says Smith, because the district court placed too much weight on his detention conduct. Neither argument has merit. So we AFFIRM. I. In 2016, Smith pleaded guilty to a trio of armed robberies in which he brandished a gun and pointed it at victims. The district court sentenced Smith to 120 months’ imprisonment and three years of supervised release. Smith began his supervised release term on June 4, 2024. About six weeks later, Smith violated the condition of his supervised release requiring him to refrain from using illegal drugs when he tested positive for marijuana. He violated this same condition a few months later, when he again tested positive for marijuana. Then within a few weeks of his second positive drug test, agents of the Ohio Investigative Unit (“OIU”) stopped a vehicle in which Smith was a backseat passenger. During the stop, Smith admitted to an OIU agent that he had a gun on him, and an agent retrieved the weapon from Smith’s waistband. OIU arrested Smith on the spot, and a federal grand jury later indicted him under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. While detained, Smith found trouble. For instance, in June 2025, he crafted a homemade shiv, which he used to assault another inmate. Smith was also noncompliant with correctional officers’s commands. And he attempted to sneak drugs into the correctional center. The most egregious incident took place on August 31, 2025, when Smith and three other detainees attacked and stabbed another detainee, resulting in his death (“August 31 incident”). -2- No. 26-3068, United States v. Smith Smith pleaded guilty to the felon-in-possession-of-a-firearm charge and faced an advisory range under the United States Sentencing Guidelines (“U.S.S.G”) of forty-one to fifty-one months’ imprisonment. He received a sentence of ninety-six months’ imprisonment followed by three years of supervised release. To arrive at ninety-six months, the district court varied upward, citing the August 31 incident as one example of behavior it considered when weighing the 18 U.S.C. § 3553(a) factors. The court also determined that the sentence would run consecutively to any sentence imposed for charges that might arise out of the August 31 incident. A few months after his sentencing for the felon-in-possession conviction, Smith faced sentencing for his admitted violations of three conditions of his supervised release from his armed robbery case. The violations were for engaging in new criminal conduct by possessing a firearm as a felon, associating with others engaged in criminal activity, and using illicit substances. The Sentencing Guidelines provided an advisory range of six to twelve months. But the district court varied upward and sentenced Smith to a term of twenty-four months’ imprisonment to run consecutively to his felon-in-possession sentence and a new five-year term of supervised release to run concurrently with the supervision term for his felon-in-possession conviction. The district court found that imposing a within-guidelines sentence or a time-served sentence, as Smith had requested, would not be enough of a deterrent. Smith timely appealed. II. Procedural Reasonableness. Smith first challenges the procedural unreasonableness of his sentence. He argues the district court impermissibly double counted his conduct from the August 31 incident because that same conduct served as a basis for the upward variance applied at his sentencing for the felon-in-possession offense. (Appellant’s Br., ECF 15, at 7). -3- No. 26-3068, United States v. Smith A. Standard of Review We review challenges to the procedural reasonableness of a sentence “under the abuse-of- discretion standard.” United States v. Matthews, 155 F.4th 845, 850 (6th Cir. 2025) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). This requires us to give fresh review to the district court’s legal interpretation of the guidelines and to accept the district court’s factual determinations so long as they are not clearly erroneous. See id. A sentence is procedurally reasonable if the district court “properly calculates the guidelines range, treats that range as advisory, considers the sentencing factors in 18 U.S.C. § 3553(a), refrains from considering impermissible factors, selects the sentence based on facts that are not clearly erroneous, and adequately explains why it chose the sentence.” United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (citation modified). Properly calculating the guidelines range requires the district court to correctly construe the guidelines. So when a defendant attacks the district court’s rejection of an argument that “impermissible double counting occurred” under the Sentencing Guidelines, we apply de novo review. United States v. Hitch, 58 F.4th 262, 263–64 (6th Cir. 2023). B. Double-Counting In the sentencing context, impermissible double counting occurs “when precisely the same aspect of a defendant’s conduct factors into his sentence in two separate ways.” United States v. Duke, 870 F.3d 397, 404 (6th Cir. 2017) (quoting United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999)). Not all double counting is impermissible, though; it “is allowed ‘where it appears that Congress or the Sentencing Commission intended to attach multiple penalties to the same conduct.’” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (quoting Farrow, 198 F.3d at 194). There is also no double counting “if the defendant is punished for distinct aspects of -4- No. 26-3068, United States v. Smith his conduct.” United States v. Nunley, 29 F.4th 824, 830 (6th Cir. 2022) (citation omitted). When impermissible double counting does occur, it “renders a sentence procedurally unreasonable.” Battaglia, 624 F.3d at 351 (citation omitted); see also Nunley, 29 F.4th at 830 (“Impermissible double counting is a procedural error. . . .”). Smith’s case does not involve impermissible double counting. The statutory factors courts are to consider for revocation sentencing and sentencing for a substantive offense purposely overlap. 18 U.S.C. § 3583(e) specifies which § 3553(a) factors may be considered when revoking a defendant’s supervised release and sentencing the defendant to imprisonment. Section 3553(a)(1)—“the nature and circumstances of the offense and the history and characteristics of the defendant”—is specifically listed as a factor for courts to consider. See 18 U.S.C. § 3583(e). This overlap shows that Congress intended for a defendant’s history and characteristics to be considered in sentencing both for supervised release violations and for any substantive offenses that may comprise such violations. See 18 U.S.C. § 3553(a)(1); Esteras v. United States, 606 U.S. 185, 188 (2025). And because Smith’s conduct during the August 31 incident is a part of his history and characteristics, both sentencing courts were allowed to consider it. Moreover, as a general rule, impermissible double counting occurs only within the same sentencing for the same charges, not where separate cases consider the same conduct. Consider this court’s unpublished decision in United States v. Matute-Argueta, 817 F. App’x 152 (6th Cir. 2020). There, a panel of this court rejected a defendant’s claim of double counting where the district court imposed an upward variance for a revocation sentence based on the same conduct for which the defendant had been convicted and sentenced in a separate case. Id. at 155. Instead, the panel determined that “the district court was within its discretion to vary upward in [the defendant’s] supervised release revocation sentence even if” the substantive underlying offense -5- No. 26-3068, United States v. Smith sentence “already accounted for the same supervised release violations.” Id. This is another way of saying that discrete wrongs receive discrete penalties. And violating supervised release is a wrong discrete from violating a criminal statute. Here, Smith faced two different cases, in which courts imposed two different sentences for two different wrongs: one for Smith’s felon-in-possession conviction and the other for his supervised release violation. So in each case, the court could independently consider any and all information that bore upon permissible sentencing factors. We are not alone in so concluding. See, e.g., United States v. Roe, 9 F.4th 754, 755–56 (8th Cir. 2021) (finding no double counting when the same conduct was considered in sentencing the defendant for his felon-in-possession-of- a-firearm sentence and his supervised release violation sentence). The district court correctly determined that there was no impermissible double counting because Smith’s two cases were “separate matter[s] involving . . . separate sanctions.” (Supervised Release Violation (“SRV”) Hr’g Tr., R. 155, PageID 1292). And since Smith does not question the procedural reasonableness of any other aspect of his sentence, his procedural challenge fails. III. Next, Smith argues that his sentence is substantively unreasonable because the district court “placed too much weight on [his] conduct” during the August 31 incident. (Appellant’s Br., ECF 15, at 9). A. Standard of Review We review challenges to the substantive reasonableness of a sentence under the abuse of discretion standard. United States v. Lee, 974 F.3d 670, 676 (6th Cir. 2020) (citing Gall, 522 U.S. at 51). Notwithstanding our deferential review, in cases involving upward variances, we consider the extent of the district court’s deviation from the advisory guidelines range. See United States -6- No. 26-3068, United States v. Smith v. Perez-Rodriguez, 960 F.3d 748, 755 (6th Cir. 2020). And we have determined that “[t]he greater the variance, the more compelling the justification must be.” Id. at 754. B. Analysis Here, the district court’s variance doubled the high point of the advisory guidelines range. Yet, the district court gave sufficiently compelling reasons for this degree of variance. So, we cannot say that Smith’s sentence is substantively unreasonable. To be sure, in considering the danger to the community, the district court considered Smith’s role in violently attacking and killing a fellow detainee as he awaited sentencing on a new crime he had committed during his supervised release period. But contrary to Smith’s argument, the district court did not base its decision to vary upward and make the sentences consecutive solely on that incident. (See Appellant’s Br., ECF 15, at 11). Instead, the district court also considered the rest of Smith’s history—which included his three prior armed robberies, his brandishing of a handgun during each of those robberies, and his multiple supervised release violations for using marijuana. The district court also looked to his other conduct while in custody, including his earlier possession of a shiv, other attacks on inmates, noncompliance with staff, and an attempt to smuggle drugs into the correctional facility. Moreover, the district court adequately explained its reasons for applying an upward variance and ordering the sentences to run consecutively. The policy statement in U.S.S.G. § 7B1.3(f) states that “[a]ny term of imprisonment imposed upon the revocation of [supervised release] shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving.” Although, as a policy statement, the provision is not binding on the court, “the district court must consider § 7B1.3(f) when it is applicable and may exercise its discretion to apply it when determining whether to impose a consecutive sentence.” United States v. Johnson, -7- No. 26-3068, United States v. Smith 640 F.3d 195, 208 (6th Cir. 2011). The district court recognized and exercised its discretion to do so here. And it expounded on the § 3553(a) factors it was required to consider. See United States v. King, 914 F.3d 1021, 1025–26 (6th Cir. 2019). On that score, the court noted that Smith’s “number of violations while in custody, the danger to other inmates, drugs, violence, all that while in custody g[ave the court] pause as to what [Smith] might do when he return[ed] back to the community.” (SRV Hr’g Tr., R. 155, PageID 1288). The district judge reasoned that the large upward variance and consecutive sentence were necessary to achieve “adequate deterrence[ and to] protect the public[] and . . . others in [Smith’s] proximity.” (Id., PageID 1288–89). These reasons were adequate under the circumstances. In sum, the district court acted within its discretion in taking into account the August 31 incident as part of Smith’s history and characteristics under 18 U.S.C. § 3553(a)(1). And it was also within its discretion to impose an upward variance and run the sentences consecutively in order to “adequate[ly] deter[]” Smith from future criminal conduct and “to protect the public from [Smith’s potential] further crimes.” 18 U.S.C. § 3553(a)(2)(B)–(C). As such, Smith’s supervised release violation sentence was not substantively unreasonable. IV. For the foregoing reasons, we AFFIRM. -8-