United States v. Trevon Gates

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0205p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> Nos. 20-2092/2221
│
v. │
│
TREVON MARQUISE GATES (20-2092); DEONTE │
COURTEZ GATES (20-2221), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:19-cr-00157—Paul Lewis Maloney, District Judge.
Argued: December 7, 2021
Decided and Filed: September 6, 2022
Before: CLAY, DONALD, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Joshua A. Blanchard, BLANCHARD LAW, Greenville, Michigan, for Appellant in
20-2092. Laura J. Helderop, SPRINGSTEAD BARTISH BORGULA & LYNCH, PLLC,
Grand Rapids, Michigan, for Appellant in 20-2221. Joel S. Fauson, UNITED STATES
ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Joshua A.
Blanchard, BLANCHARD LAW, Greenville, Michigan, for Appellant in 20-2092. Laura J.
Helderop, Matthew G. Borgula, SPRINGSTEAD BARTISH BORGULA & LYNCH, PLLC,
Grand Rapids, Michigan, for Appellant in 20-2221. Austin J. Hakes, UNITED STATES
ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
CLAY, J., delivered the opinion of the court in which DONALD, J., joined.
NALBANDIAN, J. (pp. 20–23), delivered a separate opinion concurring in part and dissenting in
part.
Nos. 20-2092/2221 United States v. Gates, et al. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Brothers Trevon and Deonte Gates appeal their sentences
stemming from their involvement in a methamphetamine distribution network. On appeal,
Trevon challenges the 72-month sentence he received for pleading guilty to one count of
possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).
He claims the district court’s failure to calculate his Sentencing Guidelines was procedural error.
Likewise, Deonte challenges the 110-month sentence he received for pleading guilty to one
count of possession with intent to distribute methamphetamine, 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(B)(viii). Deonte claims the district court improperly considered juvenile conduct
when calculating his Sentencing Guidelines range. For the reasons set forth below, we
VACATE Trevon’s sentence and REMAND for resentencing, and AFFIRM Deonte’s sentence.
I. BACKGROUND
A. Factual Background
In January 2019, when brothers Trevon and Deonte Gates were 19-years-old and 17-
years-old, respectively, a confidential informant notified the Kalamazoo, Michigan, Department
of Public Safety (“KDPS”) that methamphetamine was being sold from 913 Cooper Avenue and
that two firearms were in the home. KDPS conducted a preliminary investigation and linked the
Gates brothers to the residence. On January 8, 2019, KDPS searched the trash set out at 913
Cooper Avenue and uncovered a counterfeit $100 bill, ammunition casings, bullets, several
baggies, two of which tested positive for the presence of methamphetamine, and additional
evidence linking the Gates brothers to the residence. The same day, KDPS obtained a search
warrant for the residence. On January 9, 2019, KDPS executed the search warrant. They found
one firearm, dozens of rounds of ammunition and shell casings, three cell phones, three baggies
suspected of containing drugs, and a digital scale. Deonte was arrested on outstanding warrants
but not charged for the contraband recovered during the search.
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On February 22, 2019, Deonte turned 18-years-old. Approximately two weeks later, on
March 8, 2019, KDPS made contact with Deonte in a motel parking lot. Deonte consented to a
search of his vehicle and officers uncovered a digital scale containing methamphetamine residue.
On March 25, 2019, KDPS was surveilling Matthew Boeve, a known drug dealer in the
area. KDPS followed Boeve to the 913 Cooper Avenue residence, watched him enter the home,
and then return to his vehicle. KDPS stopped Boeve’s vehicle later that evening and found 68.19
grams of methamphetamine. Boeve told KDPS he had purchased the quantity from the Gates
brothers, and that this was at least his sixth purchase of methamphetamine from them.
The following day, KDPS obtained a second search warrant for the 913 Cooper Avenue
residence. This second search uncovered over 60 grams of methamphetamine, a shotgun,
ammunition, firearm magazines, and drug paraphernalia. On April 17, 2019, Boeve told federal
prosecutors he made three purchases of methamphetamine from the Gates brothers totaling eight
ounces.
Besides Boeve, KDPS interviewed local drug trafficker, Phillip Bell. The record is
inconsistent regarding how frequently and in what quantities Bell purchased methamphetamine
from the Gates brothers. Bell told prosecutors that at one point, he purchased one to two ounces
of methamphetamine from the Gates brother every two to three days for five weeks. However,
Bell also stated that over the course of his drug dealing with the Gates brothers he made ten
purchases of methamphetamine from the Gates brothers in quantities up to seven ounces. In one
transaction, Bell claims to have purchased one-quarter pound of methamphetamine for $1,100.
Two days after the quarter-pound purchase, Bell allegedly purchased two to three additional
ounces of methamphetamine for $300. On or around March 10, 2019, Bell reportedly purchased
seven additional ounces of methamphetamine for $1,600.
In total, between the quantities KDPS recovered from the execution of both search
warrants and their transactions with Boeve, Bell, and others, a conservative estimate by U.S.
Probation and Pretrial Services concluded that Trevon and Deonte were accountable for
distributing 1.41 kilograms of methamphetamine during the relevant time.
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A grand jury charged the Gates brothers in a six-count indictment on June 26, 2019.
Both brothers were charged with conspiracy to distribute and possess with intent to distribute
methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(viii) (“Count One”), possession
with intent to distribute methamphetamine, 21 U.S.C. § § 841(a)(1), 841(b)(1)(B)(viii) (“Count
Two”), and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A)(i) (“Count Three”). Additionally, Trevon was charged with a second count of
possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i)
(“Count Four”), being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), 18 U.S.C.
§ 924(a)(2) (“Count Five”), and possession of a firearm in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(d) (“Count Six”).
On July 14, 2020, the day the Gates brothers were set to begin their joint trial, they both
entered into plea agreements. Trevon pleaded guilty to Counts One and Four. Deonte pleaded
guilty to Counts Two and Three. All other charges were dismissed.
B. Trevon’s Sentencing
Trevon was sentenced on October 30, 2020. For a § 841(a)(1) conviction, the offense
level varies based on the quantity of methamphetamine distributed. See U.S.S.G. §2D1.1.
Because Trevon was accountable for 1.41 kilograms of methamphetamine, probation
recommended an offense level of 30 and a two-level reduction for accepting responsibility.
Probation also determined Trevon had a criminal history category of IV. With an offense level
of 28 and criminal history category of IV, the Sentencing Guidelines Table recommended a
sentencing range of 110 to 137 months. However, because § 841(b)(1)(A)(viii) carries a
mandatory minimum sentence of 120 months, Trevon’s advisory range was adjusted to 120 to
137 months. For Trevon’s § 924(c) conviction, probation calculated his Guideline as the
mandatory minimum sentence of 60 months imprisonment to be served consecutively.
See U.S.S.G. § 2k2.4.
At sentencing, the district court independently calculated Trevon’s Sentencing Guidelines
range for his § 841(b)(1)(A)(viii) conviction and agreed with probation’s calculation of 120 to
137 months. The district court concluded a within-Guidelines sentence was appropriate and
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sentenced Trevon to the mandatory minimum sentence of 120 months. Regarding Trevon’s
§ 924(c) conviction, however, the district only mentioned the mandatory minimum sentence of
60 months. The district court concluded that because Trevon had recently been convicted of a
similar firearms offense in Michigan state court, the mandatory minimum sentence of 60 months
was inadequate. In explaining the rationale for its sentence, the district court stated:
For purposes of the sentence on Count Four, the Court consulted the guidelines.
Mr. Gates has a Criminal History Category of IV. The Court went down the chart
to a guideline range for Criminal History Category IV, which includes 60 months
and went up two levels for the reasons that I’ve already stated, to decide on the
sentence of 72 months.
(Trevon’s Sent’g Tr., R. 167, PageID #915.) In total, Trevon was sentenced to 192 months.
Trevon objected to his above-Guidelines sentence. The district court responded, “Well, I didn’t
– I’m not sure that’s a departure or a variance. I didn’t impose – I didn’t impose the mandatory
minimum for the reasons that I stated. The crime itself is without a guideline, correct?” (Id.,
PageID #918.) Trevon’s counsel informed the district court the Sentencing Guidelines did, in
fact, recommend a sentence of 60-months imprisonment—the same as the mandatory minimum.
The court responded, “Well, all right. If that’s correct, then I have varied upward for the reasons
that I stated.” (Id., PageID ##918–19.) Trevon timely appealed his sentence.
C. Deonte’s Sentencing
Like Trevon, because Deonte was held accountable for 1.41 kilograms of
methamphetamine, his offense level was calculated to be 30. Deonte also received a two-level
reduction for accepting responsibility, making his total offense level 28. Additionally, probation
determined Deonte had a criminal history category of IV. With an offense level of 28 and a
criminal history category of IV, the Sentencing Guidelines recommend a sentence of 110 to 137
months imprisonment. Because Deonte pleaded guilty under § 841(b)(1)(B)(viii), unlike Trevon
who pleaded guilty under § 841(b)(1)(A)(viii), Deonte’s sentence did not need to be adjusted to
comply with a mandatory minimum.
On December 9, 2020, the district court sentenced Deonte. The district court agreed with
the PSI and considered all 1.41 kilograms of methamphetamine when calculating Deonte’s
offense level. With a Guideline range of 110 to 137 months imprisonment for his § 841(a)(1)
Nos. 20-2092/2221 United States v. Gates, et al. Page 6
charge, the district court sentenced Deonte to 110 months. For his § 924(c) charge, the district
court sentenced Deonte to the mandatory minimum sentence of 60 months imprisonment.
Deonte timely appealed his sentence.
II. ANALYSIS
A. Trevon’s Sentence
i. Procedural Reasonableness
On appeal, district court sentencing determinations are reviewed for reasonableness.
United States v. Nichols, 897 F.3d 729, 736 (6th Cir. 2018). The reasonableness inquiry has two
components: procedural and substantive. Gall v. United States, 552 U.S. 38, 51 (2007). Because
Trevon objected to his sentence, this Court reviews the procedural reasonableness of his sentence
under an abuse-of-discretion standard. United States v. Cruz, 976 F.3d 656, 661 (6th Cir. 2020).
Procedural error occurs when the district court “fail[s] to calculate (or improperly
calculat[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the
§ 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately
explain the chosen sentence.” United States v. Fowler, 819 F.3d 298, 304 (6th Cir. 2016)
(emphasis in original). “[D]istrict courts must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing process.” Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904 (2018) (quoting Peugh v. United States, 569 U.S. 530, 541 (2013))
(emphasis in original); United States v. Peebles, 624 F.3d 344, 347 (6th Cir. 2010). The “failure
to calculate the Guidelines range renders a sentence procedurally unreasonable.” Fowler,
819 F.3d at 305.
The sentencing transcript overwhelmingly supports the conclusion that the district court
did not openly address the Sentencing Guidelines as they related to Trevon’s § 924(c)
conviction. Throughout his sentencing hearing, the district court never acknowledged that the
Sentencing Guidelines recommended a 60-month sentence for Trevon’s § 924(c) conviction.
The court only mentioned the statutory mandatory minimum. After the district court imposed a
12-month above-Guideline sentence, Trevon objected. The district court responded, “Well,
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I didn’t – I’m not sure that’s a departure or a variance. I didn’t impose – I didn’t impose the
mandatory minimum for the reasons that I stated. The crime itself is without a guideline,
correct?” (Trevon’s Sent’g Tr., R. 167, PageID ##918–19 (emphasis added).) If the district
court had, in fact, calculated Trevon’s Guidelines range, it surely would have known § 924(c) is
not “without a guideline.” (Id.)
The district court’s failure to calculate Trevon’s Sentencing Guidelines is made worse by
the fact that Trevon brought the error to the court’s attention. Instead of reviewing the
Guidelines and correcting the error, the district court simply said, “Well, all right. If that’s
correct, then I have varied upward for the reasons that I stated.” (Id., PageID ##918–19.)
Despite the strong evidence that the district court entirely failed to calculate Trevon’s
§ 924(c) Sentencing Guideline, the government argues that the Statement of Reasons filed after
the district court had imposed Trevon’s sentence demonstrates that it satisfied its procedural
duty. Additionally, the government argues that the Sentencing Guidelines were the same as the
mandatory minimum, and by discussing the mandatory minimum, the district court sufficiently
addressed the Sentencing Guidelines. Neither of these arguments is convincing.
As a threshold matter, statements of reasons filed after sentences are imposed “must be
viewed with some caution.” United States v. Denny, 653 F.3d 415, 421 (6th Cir. 2011). The
statement of reasons serves a record-keeping function for the U.S. Sentencing Commission and
“was not intended as a procedural safeguard for any particular defendant.” Id. at 422. This
Court disfavors allowing statements of reasons to “obfuscate unambiguous reasoning given by a
district court at the oral hearing . . . .” Id.The district court noted in Trevon’s Statement of Reasons that the Guidelines range for
all Trevon’s convictions totaled 180 to 197 months. Because the sentencing guideline for his §
841(a)(1) conviction was 120 to 137 months, the government argues this demonstrates the
district court properly added the 60-month Sentencing Guideline for Trevon’s § 924(c)
conviction. This argument is unpersuasive. First, district courts prepare statements of reasons
after the sentence is imposed. See 28 U.S.C. § 994(w)(1)(B). However, our case law makes
abundantly clear that the Sentencing Guidelines must be “the starting point” of the sentencing
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decision. Peebles, 624 F.3d at 347; Gall, 552 U.S. at 49. A post-sentencing acknowledgment in
the statement of reasons does not satisfy this duty.
Notwithstanding the timing issue, Trevon’s Statement of Reasons provides no
clarification as to whether the district court actually calculated Trevon’s Guideline or continued
to use the mandatory minimum. The record contains no evidence the district court reached the
“180 to 197 months” determination through use of the Sentencing Guidelines. In fact, the
Statement of Reasons, itself, suggests the district court did not rely on the Sentencing Guidelines.
In justifying the above-Guidelines sentence, the Statement of Reasons treats the 12-month
increase as a variance. In a comment to U.S.S.G. § 2K2.k, the section relevant to § 924(c), the
Sentencing Guidelines state, “a sentence above the minimum term required by 18 U.S.C.
§ 924(c). . . is an upward departure from the guideline sentence.” U.S.S.G. § 2K2.k cmt. B
(emphasis added). Surely, if the district court had calculated the Guideline recommendation for
Trevon’s § 924(c) conviction, it would have known to treat the 12-month increase as a departure.
The government’s second argument—that mentioning the mandatory minimum sentence
was sufficient to constitute addressing the Sentencing Guidelines because they were both 60
months—also fails. The government is correct in pointing out that throughout the sentencing
hearing, the district court repeatedly mentioned the mandatory minimum sentence. But the
government fails to direct the Court to any authority holding the Sentencing Guidelines and
mandatory minimums are interchangeable.
At sentencing the district court has an affirmative obligation to calculate the Sentencing
Guidelines. Rosales-Mireles, 138 S. Ct. at 1904. Reference to the mandatory minimum is no
substitute for the explicit requirement to calculate Trevon’s Guideline. The district court’s
reference to the mandatory minimum sentence is not sufficient to constitute calculating Trevon’s
Guidelines range. Consequently, we find that the district court’s failure to calculate Trevon’s
Sentencing Guidelines range resulted in procedural unreasonableness.
ii. Harmless Error
Anticipating that we might find the district court’s handling of Trevon’s sentencing
procedurally unreasonable, the government goes on to argue that any error caused by the district
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court’s failure to calculate Trevon’s Sentencing Guidelines was harmless because the district
court would have imposed the same sentence under the Guidelines.
We have held that even if a district court commits procedural error, the sentence will not
be vacated if the error was harmless. United States v. Faulkner, 926 F.3d 266, 275 (6th Cir.
2019). A sentencing error is harmless when the district court indicates it would have imposed
the same sentence regardless of the procedural error. United States v. Morrison, 852 F.3d 488,
491 (6th Cir. 2017). The burden is on the government to prove “with certainty” that the district
court would have imposed the same sentence had the Guidelines had been properly calculated.
United States v. Rosales, 990 F.3d 989, 1000 (6th Cir. 2021); United States v. Gillis, 592 F.3d
696, 699 (6th Cir. 2009).
All the cases on which the government relies are cases in which the district court
incorrectly calculated the respective defendants’ Sentencing Guidelines ranges. Molina-
Martinez, 578 U.S. at 189; United States v. Buchanan, 933 F.3d 501 (6th Cir. 2019); Faulkner,
926 F.3d at 266; Morrison, 852 F.3d at 488; Gillis, 592 F.3d at 696; United States v. Obi,
542 F.3d 148 (6th Cir. 2008); United States v. Butler, 812 F. App’x 311 (6th Cir. 2020). None of
these cases deals with a situation in which the district court completely failed to calculate the
defendants’ Sentencing Guidelines ranges. Whether a sentence may be affirmed when the
district court fails to calculate the Sentencing Guidelines seems to be an issue of first impression
in this Circuit. The Court need not answer this question, however, because even assuming the
harmless error test applies when the district court fails to calculate the Sentencing Guidelines, the
government has failed to meet its burden of proving “with certainty” that the district court would
impose the same sentence notwithstanding the procedural error. Rosales, 990 F.3d at 1000.
The “certainty” at the foundation of the government’s argument stems from the district
court’s finding “that the mandatory minimum is inadequate and [it] intend[s] to give [Trevon] a
sentence above the mandatory minimum for his firearms offense.” (Trevon’s Sent’g Tr., R. 167,
PageID #915.) Additionally, the government points to the district court’s statement after Trevon
objected to his sentence and notified the court that the Sentencing Guidelines should have been
considered. The court stated, “If that’s correct, then I have varied upward for the reasons that I
stated.” (Trevon’s Sent’g Tr., R. 167, PageID ##918–19.)
Nos. 20-2092/2221 United States v. Gates, et al. Page 10
There are two problems that undermine the certainty of the district court’s sentence.
First, a sentence above the mandatory minimum and a sentence above the Guidelines are
different. Had the district court known that the U.S. Sentencing Commission recommended
Trevon be sentenced to 60 months imprisonment, it may have imposed a 60-month sentence or
departed to a lesser degree. “Courts are not bound by the Guidelines, but even in an advisory
capacity the Guidelines serve as ‘a meaningful benchmark.’” Rosales-Mireles, 138 S. Ct. at 1904(quoting Peugh, 569 U.S. at 541). Additionally, a within-Guidelines sentence is presumptively
reasonable, United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc), but a sentence
of the mandatory minimum is not necessarily entitled to the same presumption. It is certainly
plausible that the district court would have imposed a lower sentence if it had properly
considered Trevon’s Guidelines.
Second, the district court’s comment that it “varied” upward from the mandatory
minimum further undermines any “certainty” that it would have imposed the same sentence had
it considered the Sentencing Guidelines. As mentioned above, an above-Guideline sentence for
a § 924(c) conviction is a departure, not a variance. U.S.S.G. § 2K2.k cmt. B. The difference
between a departure and a variance is subtle but important. In Denny, this Court explained the
difference:
A Guidelines “departure” refers to the imposition of a sentence outside the
advisory range or an assignment of a criminal history category different than the
otherwise applicable category made to effect a sentence outside the range.
Importantly, a departure results from the district court’s application of a particular
Guidelines provision, such as § 4A1.3 or § 5, Part K. A “variance” refers to the
selection of a sentence outside of the advisory Guidelines range based upon the
district court’s weighing of one or more of the sentencing factors of § 3553(a).
While the same facts and analyses can, at times, be used to justify both a
Guidelines departure and a variance, the concepts are distinct.
Denny, 653 F.3d at 419 (quoting United States v. Grams, 566 F.3d 683, 686–87 (6th Cir. 2009)
(per curiam)). The main justification for Trevon’s above-Guideline sentence was that he had
recently been convicted in Michigan state court for similar conduct. While this is an appropriate
justification under the § 3553(a) factors, the record does not indicate any specific Guidelines
provision that would justify an upward departure. In other words, the justification the district
court provided for its upward “variance” does not necessarily justify an upward departure.
Nos. 20-2092/2221 United States v. Gates, et al. Page 11
Because departures require different findings than variances, on remand, the district court may
find an upward departure is not warranted in this case even if an upward variance is.
The dissent argues that drawing a distinction between departures and variances “is wrong
as a matter of law” in a post-United States v. Booker, 543 U.S. 220 (2005), world. Dissent at 2–
3. To be clear, we are not holding that a sentence must be vacated as procedurally unreasonable
every time a district court says it is “varying” from a Guideline when the Guidelines instead
instruct the court to “depart.” As the dissent correctly points out, we often affirm sentences even
when the district court uses an imprecise term of art. See United States v. Stewart, 628 F.3d 246(6th Cir. 2010); United States v. Perdue, 818 F. App’x 419, 423 (6th Cir. 2020); United States v.
Morgan, 572 F. App’x 292, 294 (6th Cir. 2014); United States v. Bryant, 529 F. App’x 673, 675
(6th Cir. 2013). But in each of the cases upon which the dissent relies, the district courts
unquestionably calculated the defendants’ Guidelines ranges. Thus, the use of “depart” when the
court should have said “vary,” and vice versa, is less consequential to the procedural
reasonableness of the defendants’ sentences than in situations like the present appeal where we
are trying to determine if the court did, in fact, calculate the defendant’s Guidelines.
In this case, we have no indication the district court ever consulted the Sentencing
Guidelines before imposing Trevon’s sentence. The fact that the district court used a term of art
(i.e., vary) contrary to the term of art used by the Guidelines (i.e., depart) is simply additional
evidence that the court never calculated Trevon’s Guidelines. In conclusion, we find that the
record does not demonstrate “with certainty” that the district court would impose the same
sentence notwithstanding the procedural error; therefore, the district court committed a non-
harmless error. For these reasons, we vacate Trevon’s § 924(c) sentence and remand for
resentencing. Because we find the sentence procedurally unreasonable, we need not address the
substantive reasonableness of Trevon’s sentence. See, e.g., United States v. Novales, 589 F.3d
310, 314 (6th Cir. 2009).
B. Deonte’s Sentence
Deonte challenges the procedural and substantive reasonableness of his 110-month
sentence for possession with intent to distribute methamphetamine. Specifically, he alleges that
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the district court improperly calculated his Sentencing Guidelines and that the district court
placed too much emphasis on some § 3553(a) factors.
i. Procedural Reasonableness
As mentioned above, this Court will find a sentence procedurally unreasonable “if the
district court ‘fail[s] to calculate (or improperly calculate[es]) the Guidelines range, treat[s] the
Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on
clearly erroneous facts, or fail[s] to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.’” United States v. Nichols, 897 F.3d
729, 737 (6th Cir. 2018) (quoting Gall, 552 U.S. at 51). The Court reviews the procedural
reasonableness of Deonte’s sentence for abuse of discretion. United States v. Yancy, 725 F.3d
596, 598 (6th Cir. 2013). The application of the Sentencing Guidelines, however, is reviewed de
novo. United States v. Benton, 957 F.3d 696, 700 (6th Cir. 2020).
Unlike Trevon, who argued the district court failed to calculate his Sentencing Guidelines
range, Deonte argues the district court improperly calculated his offense level by including the
quantity of methamphetamine he sold before reaching eighteen-years-old. He argues that the
district court should have only considered the quantity of drugs sold after his eighteenth birthday,
which would have resulted in a substantially lower Guidelines range.
This Court rejected Deonte’s argument in the related cases of United States v. Gibbs,
182 F.3d 408 (6th Cir. 1999), and United States v. Hough, 276 F.3d 884 (6th Cir. 2002). In
Gibbs, Anthony and Chad Gibbs were convicted as part of a take-down targeting drug crimes in
Columbus, Ohio. Gibbs, 182 F.3d at 418. Anthony was convicted of possession with intent to
distribute crack, using or carrying a firearm during and in relation to a drug trafficking crime,
and distributing crack. Id. at 419. Chad was convicted of possession with intent to distribute
crack and of distributing crack. Id. Both Anthony and Chad joined the drug operation before
their eighteenth birthdays but were not charged until after they reached the age of majority. Id.at 442–43. At both of their sentencing hearings, the district court considered the quantity of
drugs they distributed before and after they turned eighteen-years-old. Id. They both challenged
the district court’s inclusion of their pre-eighteen drug distributions on appeal. Id.Nos. 20-2092/2221 United States v. Gates, et al. Page 13
Addressing Anthony first, the Court vacated his sentence for other reasons but explicitly
“h[e]ld that the district court on remand may take into account quantities of crack cocaine
[Anthony] sold before he reached age eighteen as relevant conduct to Gibbs’s independent drug
trafficking convictions.” Id. at 442. The Court reached the same conclusion for Chad. Id. at
443. In reaching this conclusion, the Court predominantly relied on U.S.S.G. § 1B1.3(a)(2).
Section 1B1.3(a)(2) permits sentencing courts to consider acts “that were part of the same course
of conduct or common scheme of plan as the offense of conviction.” Id. Because the Gibbs
brothers were convicted for a crime that occurred after they reached the age of majority, the
Court held “the district court may consider relevant conduct that occurred before the
defendant[s] reached the requisite age as long as such conduct falls within the limitations set
forth in § 1B1.3(a)(2).” Gibbs, 182 F.3d at 442.
On remand, the district court followed the holding in Gibbs and included Anthony’s pre-
eighteen drug quantities when calculating his Guidelines range. Hough, 276 F.3d at 897.
Anthony appealed his sentence again. This time, Anthony argued the Federal Juvenile
Delinquency Act (“FJDA”), 18 U.S.C. § 5031 et seq., prevented the district court from
considering his pre-eighteen drug quantities. Id. at 897–98. In brief, his argument was that
because the FJDA prevented federal prosecutors from convicting Anthony based on the pre-
eighteen drug quantities, the FJDA should be interpreted to exclude such quantities at
sentencing. Id.The Hough court disagreed and affirmed the holding in Gibbs. Id. at 897. The Court
found persuasive a Second Circuit case decided shortly before Anthony’s first appeal. The
Second Circuit held that “‘a federal district court may consider any relevant conduct when
sentencing a defendant, whether or not the conduct is a federal crime.’” Id. at 898 (quoting
United States v. Martin, 157 F.3d 46 (2d Cir. 1998)); accord United States v. Dickler, 64 F.3d
818, 831 (3rd Cir. 1995). Thus, although, the FJDA prohibited the government from charging
Anthony for the pre-eighteen drug quantities, such quantities could be considered in his
sentencing. Ultimately, the Court affirmed Anthony’s sentence. Hough, 276 F.3d at 899.
Both Gibbs and Hough are directly on point. Nevertheless, Deonte argues this Court’s
unpublished decision in United States v. Machen, 576 F. App’x 561 (6th Cir. 2014), limits their
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scope. Essentially, Deonte argues the government had to prove he “ratified” his pre-eighteen
conduct in order for the district court to properly consider his pre-eighteen drug quantities. Even
if Machen were precedential, it does not change the outcome in Deonte’s favor. In Machen, the
Court held that to be guilty of an age-of-majority-spanning conspiracy, a defendant must ratify
his involvement in the conspiracy after turning eighteen-years-old. Machen, 576 F. App’x at
566. Machen’s conviction was reversed because the district court did not instruct the jury it had
to find he ratified his pre-eighteen involvement in the conspiracy. No sentencing issues were
presented in Machen. In Gibbs and Hough, like in Deonte’s case, the Gibbs brothers were not
convicted of being part of a conspiracy; and therefore, there was no question of whether they
were required to ratify their conduct after turning eighteen. Gibbs, 182 F.3d at 442. Deonte’s
case is significantly more analogous to, and controlled by, Gibbs and Hough.
Deonte goes on to argues that Gibbs and Hough need not be overruled for this Court to
rule in his favor. Instead, he argues that the district court misinterpreted the cases, and it should
have made independent factual findings as to how much methamphetamine was attributable to
Deonte’s pre-eighteen conduct, and what quantity was attributable to his post-eighteen conduct.
In separating the quantities, Deonte would have the sentencing court place less emphasis on the
pre-eighteen drug quantities.
This interpretation of Gibbs and Hough is a stretch, to say the least. First, nothing in the
cases suggests the district court is required to distinguish between pre-eighteen and post-eighteen
drug quantities. The only findings the district court must make regarding the drug quantities are
that they are part of the same course of conduct as required under § 1B1.1 of the Sentencing
Guidelines. Additionally, to require the district court to make factual findings as to the pre- and
post-eighteen drug quantities would be to be create a distinction without a difference. Counsel
for Deonte concedes that even after making separate factual findings, the district court could still
consider the pre-eighteen drug quantities as relevant conduct when calculating a defendant’s
Sentencing Guidelines range. Thus, Deonte’s suggested interpretation of Gibbs and Hough
would add an additional step in the sentencing process but ultimately would not change how the
Sentencing Guidelines are calculated for age-of-majority spanning drug offenses.
Nos. 20-2092/2221 United States v. Gates, et al. Page 15
Deonte next argues that the Supreme Court’s holdings in Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005), require this Court to re-examine
its holdings in Gibbs and Hough. In Blakely, the Supreme Court held that any facts used to
increase the statutory maximum sentence must be submitted to a jury. Blakely, 542 U.S. at 301.
The “‘statutory maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.” Id. at 303–
04 (emphasis in original). Deonte’s conviction under 21 U.S.C. § 841(b)(1)(B)(viii) carried a
statutory maximum sentence of forty years imprisonment. 21 U.S.C. § 841(b)(1)(B)(viii).
Without making any additional factual findings, the district court could have imposed a sentence
of forty years imprisonment. Even assuming the inclusion of the full 1.41 kilograms of
methamphetamine was proper, the statutory maximum sentence under § 841(b)(1)(B)(viii) is not
increased. Section 841(b) explicitly lists the factual findings that allow a sentencing court to
increase the statutory maximum sentence. See 21 U.S.C. §§ 849, 859, 860, 861. For example, if
a defendant is found to have distributed drugs to someone under the age of 21, the maximum
sentence is doubled. § 859(a). The district court did not make any factual findings that would
increase Deonte’s maximum sentence. Simply put, Blakely is not applicable here.
Additionally, Deonte relies on the Supreme Court’s holding in Booker. In that case, a
jury found Booker guilty of possessing 92.5 grams of crack, which would have authorized a
sentence of 210 to 262 months. Booker, 543 U.S. at 235. At sentencing, the district court
independently found that Booker possessed an additional 566 grams of crack, which
substantially increased his sentencing range. Id. At the time, the Sentencing Guidelines were
considered mandatory; therefore, judicial fact-finding that increased a defendant’s sentencing
range was similar to increasing the statutory maximum. On appeal, the Supreme Court found
“[t]here [was] no relevant distinction between the sentence imposed . . . in Blakely and the
sentences imposed pursuant to the Federal Sentencing Guidelines in [this case].” Id. Ultimately,
the Supreme Court held that the Sentencing Guidelines were advisory. Booker, 543 U.S. at 220.
Like Blakely, nothing in Booker suggests district courts cannot consider pre-eighteen conduct
related to a post-eighteen conviction.
Nos. 20-2092/2221 United States v. Gates, et al. Page 16
Deonte’s final argument is that public policy has changed so significantly since Gibbs
and Hough were decided that their holdings should be revisited. Deonte relies on an arsenal of
evidence to prove shifting public policy attitudes, including Supreme Court cases, federal and
state statutes, and scientific studies. Specifically, Deonte notes that since Gibbs and Hough, the
Supreme Court has expanded sentencing protections for juveniles. See Roper v. Simmons,
543 U.S. 551 (2005) (holding juveniles cannot be sentenced to death); Graham v. Fla., 560 U.S.
48 (2010) (holding juveniles cannot be sentenced to life without parole except in homicide
cases); Miller v. Alabama, 567 U.S. 460 (2012) (holding juveniles are not subject to mandatory
life without parole statutes even for homicide); but see Jones v. Mississippi, 141 S. Ct. 1307(2021) (holding sentencing court need not make finding of “permanent incorrigibility” before
sentencing juvenile to life without parole for homicide). Additionally of note, Deonte argues that
the FJDA demonstrates a shift in public policy because Congress enacted the FJDA to provide
juveniles additional protections before being prosecuted in federal court.
Considering all Deonte’s policy arguments together, there is a trend toward expanding
sentencing protections for juveniles. See Francis X. Shen et al., Justice for Emerging Adults
After Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller
Protections to Defendants Ages 18 and Older, 97 N.Y.U. L. Rev. (Online Feature) 101 (2022).
However, this trend has not materialized to such a degree that this panel can overrule Gibbs and
Hough. First, all the cases on which Deonte relies are cases in which the defendant was charged
as a juvenile. These cases make clear that a critical factor is the age of the defendant at the time
he is charged. Deonte was indicted as an adult, not as a juvenile. See United States v. Edwards,
734 F.3d 850, 853 (9th Cir. 2013) (“Roper and Graham established constitutional limits on
certain sentences for offenses committed by juveniles—not for offenses committed as an
adult.”). The Supreme Court has not yet weighed in on whether young adults are entitled to
special sentencing protections for juvenile conduct.
Furthermore, the FJDA does not get Deonte’s public policy argument to the finish line.
Like the Supreme Court’s recent holdings, the focus of the FJDA is juvenile convictions, not
adult sentencing. What’s more, the FJDA’s prohibition against prosecuting juveniles is not
nearly as complete as Deonte would have this Court believe. In many instances, federal
Nos. 20-2092/2221 United States v. Gates, et al. Page 17
prosecutors may charge juveniles so long as they obtain the proper authorization. Another, more
glaring problem with Deonte’s reliance on the FJDA is that this exact argument was raised in
Hough. There, the Court called the argument “creative” but rejected it. Hough, 276 F.3d at 897.
Deonte does not cite any changes to the text or interpretation of the FJDA since Hough that
would merit overruling Gibbs and Hough.
In sum, Deonte asks the panel to indirectly overrule Gibbs and Hough. “A panel of this
Court cannot overrule the decision of another panel. The prior decision remains controlling
authority unless an inconsistent decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc overrules the prior decision.” Salmi
v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). While the Supreme
Court cases that Deonte references certainly suggest a trend toward expanding protections for
juveniles, they do not warrant overruling Gibbs and Hough. For these reasons, the district court
did not err in including Deonte’s pre-eighteen drug quantities when calculating his Sentencing
Guideline range.
ii. Substantive Reasonableness
Because we find the district court’s sentencing decision to be procedurally sound, we
now “consider the substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Bolds, 511 F.3d at 581 (quoting Gall, 552 U.S. at 51).
In reviewing for substantive reasonableness, this Court “take[s] into account the totality
of the circumstances.” Id. (quoting Gall, 552 U.S. at 51). “For a sentence to be substantively
reasonable, it must be proportionate to the seriousness of the circumstances of the offense and
offender, and sufficient but not greater than necessary, to comply with the purposes of
§ 3553(a).” United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). On the other hand,
sentences are substantively unreasonable when “the district court selects a sentence arbitrarily,
bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or
gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser,
514 F.3d 508, 520 (6th Cir. 2008); United States v. Nichols, 897 F.3d 729, 737 (6th Cir. 2018).
In essence, a “sentence is substantively unreasonable if it is too long.” United States v. Lee,
Nos. 20-2092/2221 United States v. Gates, et al. Page 18
974 F.3d 670, 676 (6th Cir. 2020). For sentences within the Guidelines range, the Court may
apply a rebuttable presumption of reasonableness, but no presumption may be made for outside-
Guidelines sentences. United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir. 2009).
Deonte challenges the substantive reasonableness of his sentence arguing that by failing
to impose a below-Guideline sentence, the district court imposed a sentence that was longer than
necessary to achieve the goals of sentencing. Deonte’s § 924(c) conviction carried a mandatory
minimum sentence of 60 months imprisonment, which was the sentence he received. Because it
had no discretion to impose a lower sentence, the district court did not abuse its discretion with
respect to Deonte’s § 924(c) conviction.
Turning to Deonte’s sentence for his § 841(a)(1) conviction, the district court calculated
his Guidelines range as 110–137 months imprisonment. The district court opted to impose a
sentence of 110-months imprisonment. Because this is a within-Guidelines sentence, we
presume the sentence is reasonable. Herrera-Zuniga, 571 F.3d at 582.
Deonte argues the district court erred by relying too much on his criminal history and not
enough on his age, lack of parental guidance, and drug dependency. Contrary to Deonte’s
argument, the district court specifically addressed each of these factors. The district court stated:
The Court recognizes Mr. Gates’s age as being a factor for the Court to consider
here. But by my count, based on the criminal history outlined in the presentence
report, Mr. Gates committed four felonies between January of ’19 – or 2019 and
the time that he was apprehended on this case, and that doesn’t even include this
case. . . . The defendant is 19 years of age. He will be 20 in February of next
year, and in that short period of time, regretfully Mr. Gates has rolled up a
Criminal History Category of IV.
...
The influences that Mr. Gates had as a young person were undoubtedly negative,
and unfortunately, he didn’t resist them. And even when he had the opportunity
under court supervision by the state courts to conform his conduct to the
requirements of the law, he didn’t, and now he faces a very significant sentence
here.
...
He does need substance abuse treatment and counseling as well. I recommend
him for the [Residential Drug Abuse Program], . . . that is the best substance
Nos. 20-2092/2221 United States v. Gates, et al. Page 19
abuse program within the jurisdiction of the Bureau of Prisons, and Mr. Gates
would benefit from participation in the program.
(Deonte’s Sent’g Tr., R. 176, PageID ##962–64.) The district court also found especially
significant the fact that Deonte had been given an opportunity through Michigan’s Holmes
Youthful Trainee program, which allows some crimes committed before the age of 24 to be
dismissed if the defendant successfully completes the program, but he refused to comply with its
terms. Overall, the record demonstrates that the district court placed greater emphasis on
Deonte’s criminal history and the need to deter future criminal conduct than it did on his age,
lack of parental guidance, and drug dependency. However, a sentence is not necessarily
substantively unreasonable because a court places greater weight on some factors than others.
United States v. Dunnican, 961 F.3d 859, 881 (6th Cir. 2020) (“A district court’s ‘attach[ing] [of]
great weight’ to a few factors does not constitute reversible error[.]”).
Mindful that Deonte’s within-Guidelines sentence is entitled to a presumption of
reasonableness, we find Deonte’s sentence was not substantively unreasonable.
III. CONCLUSION
For the foregoing reasons, we VACATE the judgment of the district court as it relates to
Trevon Gates’ § 924(c) sentence and REMAND for resentencing. Additionally, we AFFIRM
the judgment of the district court as it relates to Deonte Gates.
Nos. 20-2092/2221 United States v. Gates, et al. Page 20
______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
______________________________________________________
NALBANDIAN, Circuit Judge, concurring in part and dissenting in part. The Gates
brothers earned their sentences by trafficking more than a kilogram of meth. Because I believe
that we should affirm both Deonte and Trevon’s sentences, I dissent in part.
The majority’s analysis of Trevon’s appeal turns on the procedural reasonableness
inquiry. As the majority sees it, Trevon’s sentence is procedurally unreasonable because the
district court failed to calculate the Guidelines range, opting instead to “only mention[] the
statutory mandatory minimum.” Maj. Op. at 6.
I see it differently because the Guideline sentence for a § 924(c) conviction is the
statutory minimum. The Guidelines say precisely that, in fact: “[I]f the defendant . . . was
convicted of violating section 924(c) . . . the guideline sentence is the minimum term of
imprisonment required by statute.” U.S.S.G. § 2k2.4(b) (emphasis added); see also United
States v. Gantt, 679 F.3d 1240, 1243 (10th Cir. 2012) (“For a violation of § 924(c), . . . the
Sentencing Guidelines do not provide a guideline sentencing range but only a guideline
sentence, which is the statutory mandatory minimum.”). The majority states that “the
government fails to direct the Court to any authority holding the Sentencing Guidelines and
mandatory minimums are interchangeable.” Maj. Op. at 8. But in doing so, the majority ignores
the relevant Guideline itself. All this is to say, the district court “calculated” all there is to
calculate.
True, the district court asked Trevon’s counsel to confirm whether “[t]he crime is itself
without a guideline.” (R. 167, Trevon Sentencing Tr., PageID 918.) But it seems clear to me
that the court was simply flagging the overlap between the Guidelines and the statute. At the
very least, this is the more reasonable interpretation, and one that’s consistent with the “highly
deferential” review that we owe to the district court. United States v. Owens, 426 F.3d 800, 805
(6th Cir. 2005). And indeed, in responding to the district court, Trevon’s counsel confirmed that
the Guidelines collapse into the statute in this way. (Id. at PageID 918 (“I think the guideline
Nos. 20-2092/2221 United States v. Gates, et al. Page 21
manual says the guideline range for 924(c) is 60 months [the statutory minimum].”)) It takes
quite the leap to make it from this colloquy to a vacate and remand.
To shore up its conclusion, the majority points to the second application note for
U.S.S.G. § 2K2.4(b), which says that “a sentence above the minimum term required by
18 U.S.C. § 924(c) . . . is an upward departure from the guideline sentence.” Emphasizing this
language, the majority says that “if the district court had calculated the Guideline
recommendation for Trevon’s § 924(c) conviction, it would have known to treat the 12-month
increase as a departure.” Maj. Op. at 8.
But this conclusion runs headlong into those cases where we affirmed a district court’s
upward variance for a § 924 offense. See, e.g., United States v. Stewart, 628 F.3d 246, 259–61
(6th Cir. 2010); United States v. Perdue, 818 F. App’x 419, 423 (6th Cir. 2020); United States v.
Morgan, 572 F. App’x 292, 294 (6th Cir. 2014); United States v. Bryant, 529 F. App’x 673, 675
(6th Cir. 2013); see also United States v. Oquendo-Garcia, 783 F.3d 54, 56–58 (1st Cir. 2015).
That is to say, the available precedents confirm that the Guideline for § 924 offenses doesn’t
confine a district court’s upward movements to departures only.
Besides, it’s dubious, if not flatly wrong, to suggest that post-United States v. Booker,
543 U.S. 220, 254 (2005), a pre-Booker Guideline note can override a district court’s
discretionary authority to vary upward under 18 U.S.C. § 3553(a). Indeed, since Booker, our
precedent (along with that of every other circuit) has emphasized that a “district court is free to
vary from the Guidelines—and can impose a sentence at, below, or above [them].” Bullard v.
United States, 937 F.3d 654, 659 (6th Cir. 2019); see also United States v. Buchanan, 449 F.3d
731, 740 (6th Cir. 2006) (“[T]he guidelines’ restrictions on granting departures do not
circumscribe a trial court’s decision to grant a variance.”) So the majority’s inference—that is,
had the district court calculated an incalculable Guidelines range, it would have known it could
only depart, not vary—is wrong as a matter of law and adds little support to its conclusion.
Because the majority resolves its Trevon analysis on procedural reasonableness, it
doesn’t address the substantive reasonableness inquiry. Be that as it may, Trevon’s sentence is
substantively reasonable as well. “A claim that a sentence is substantively unreasonable”
Nos. 20-2092/2221 United States v. Gates, et al. Page 22
reduces to “a claim that a sentence is too long.” United States v. Rayyan, 885 F.3d 436, 442 (6th
Cir. 2018). More specifically, “[i]t’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. “Needful to
say, this is a matter of reasoned discretion, not math, and our highly deferential review of a
district court’s sentencing decisions reflects as much.” Id.
Trevon’s § 924(c) sentence was 20 percent higher than the Guideline sentence (i.e., the
statutory minimum). The district court spent five pages of the hearing transcript explaining why.
It stressed that Trevon, “a very young person at the age of 21[,] ha[d] managed to roll up a
Criminal History Category of IV in a very very short period of time.” (R. 167, Trevon
Sentencing Tr., PageID 913.) More specifically, the court pointed to Trevon’s prior conviction
for a state firearm felony and another for meth possession. Notably, Trevon committed his most
recent round of offenses “a scant five months” after receiving his sentence for his previous meth
conviction. (Id.) In the court’s view, “it[] [was] obvious that Mr. Gates just has not gotten the
message that he needs to stay away from drugs and he needs to stay away from firearms.” (Id.)
The district court also considered the “general deterrence of others who might contemplate
similar criminal activity.” (Id. at PageID 914.) And it emphasized that “[t]he mix of drugs and
guns is a very serious matter.” (Id.)
We have routinely upheld similar above-Guidelines sentences for repeat firearm
offenders. What’s more, these precedents often involve larger upward variances. See, e.g.,
United States v. Johnson, 934 F.3d 498, 499–500 (6th Cir. 2019) (30 percent); United States v.
Cechini, 834 F. App’x 201, 206–07 (6th Cir. 2020) (40 percent); United States v. Sims, 800
F. App’x 383, 387 (6th Cir. 2020) (45 percent). After all, “above-Guidelines sentences for repeat
offenses are hardly unusual.” United States v. Evans, 671 F. App’x 369, 371 (6th Cir. 2016).
Juxtaposed against precedents like these, Trevon’s 20 percent variance is substantively
reasonable. Not least because Trevon’s gun-crime track record comes paired with a prior meth
conviction. Indeed, the district court’s deterrence concerns are well-placed in light of a growing
meth scourge that killed 32,856 in our country last year alone. U.S. Overdose Deaths In 2021
Increased Half as Much as in 2020—But Are Still Up 15%, National Center for Health Statistics
Nos. 20-2092/2221 United States v. Gates, et al. Page 23
(May 11, 2022).1 And of course, the considerable deference that governs our review only
reconfirms matters. See United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006) (explaining that
“our appellate review . . . looks to whether the sentence is reasonable, as opposed to whether in
the first instance we would have imposed the same sentence.”).
Trevon fixates on the fact that his § 924(c) sentence is significantly higher than the 180-
day sentence that he received in state court for his earlier firearm felony. (Trevon Br. at 11–13.)
But this is neither here nor there. The proper focus of our inquiry is the mileage that separates
Trevon’s § 924(c) sentence from the Guideline sentence, not distinct state court sentences. See,
e.g., Gall v. United States, 552 U.S. 38, 51 (2007). And the district court’s extensive explanation
of its rationale flatly contradicts Trevon’s claim that “there is no explanation of why 72-months
would be more appropriate than 60-months [the statutory minimum].” (Trevon Br. at 12.)
Suffice it to say, “[w]e [should] not second-guess the district court’s assessment here.” United
States v. Graham, No. 20-6430, 2021 WL 6071504, at *5 (6th Cir. Dec. 20, 2021).
At bottom, the majority’s holding tees up a pointless remand. It says the district court
should do more calculating, but there is nothing left to calculate. Because I believe Trevon’s
§ 924(c) sentence is procedurally and substantively reasonable, I would affirm in full.
1Available at https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2022/202205.htm.