Sixth Circuit Endorses Upward Variances Based on Undisputed Presentence Detention Misconduct and a Court’s Discretion to Deem Resulting National Disparities “Warranted”

1. Introduction

United States v. O'Shane Christopher Smith (6th Cir. July 8, 2026) concerns whether an above-Guidelines sentence was substantively unreasonable when the district court relied heavily on the defendant’s disciplinary incident reports from presentence detention and addressed (but rejected) an argument about sentencing disparities.

The case arose from a single arrest that generated two federal prosecutions: illegal re-entry under 8 U.S.C. § 1326 and drug-trafficking offenses under 21 U.S.C. § 841(a)(1), (b)(1)(A). After Smith pleaded guilty to all counts, the district court calculated a Guidelines range of 70 to 87 months (offense level 26; criminal history category II) and imposed a concurrent 100-month sentence—an upward variance—primarily due to Smith’s reported misconduct while detained awaiting sentencing.

On appeal, Smith argued (1) the district court placed excessive weight on detention disciplinary reports and (2) the court failed to consider the need to avoid unwarranted disparities under 18 U.S.C. § 3553(a)(6). The Sixth Circuit affirmed.

2. Summary of the Opinion

The Sixth Circuit held that the district court did not abuse its discretion in varying upward to 100 months. It emphasized that:

  • Pretrial/presentence conduct (including misconduct in custody) is a permissible and relevant consideration under 18 U.S.C. § 3553(a).
  • Because Smith did not object to the presentence report’s account of the disciplinary incidents, the district court was entitled to treat those facts as established under Fed. R. Crim. P. 32(i)(3)(A).
  • The district court did consider sentencing disparities and permissibly concluded that a disparity from a national average was warranted on the facts of Smith’s case (including illegal re-entry twice and involvement with highly addictive drugs).

3. Analysis

3.1. Precedents Cited

The panel situated its review within established Sixth Circuit and Supreme Court sentencing doctrine:

  • United States v. Robinson, 778 F.3d 515 (6th Cir. 2015): Cited for the principle that appellate review looks to the § 3553(a) factors to assess whether the district court properly considered relevant sentencing considerations.
  • United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018): Used for two related points: (i) substantive reasonableness can turn on whether the court over- or under- weighted § 3553(a) factors, and (ii) weighing those factors “is a matter of reasoned discretion, not math,” reinforcing deference to district courts’ qualitative balancing.
  • United States v. Conatser, 514 F.3d 508 (6th Cir. 2008): Supplies the core substantive-unreasonableness formulation (arbitrary sentence, impermissible factors, failure to consider relevant factors, or unreasonable weight). Also cited for the understanding that § 3553(a)(6) is aimed at national disparities among similarly situated defendants.
  • United States v. Bridgewater, 479 F.3d 439 (6th Cir. 2007): Supports the proposition that not all § 3553(a) factors matter equally in every case; one or two may properly “prevail” depending on the circumstances.
  • United States v. Axline, 93 F.4th 1002 (6th Cir. 2024) (quoting United States v. Kumar, 750 F.3d 563 (6th Cir. 2014)): Frames the abuse-of-discretion standard and the deferential “definite and firm conviction” language for overturning a sentencing decision.
  • United States v. Robinson, 813 F.3d 251 (6th Cir. 2016): Clarifies that an above-Guidelines sentence is neither presumptively reasonable nor presumptively unreasonable—rejecting shortcuts and requiring a case-specific assessment.
  • United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020) (quoting Gall v. United States, 552 U.S. 38 (2007)): Provides the “sufficiently compelling justification” standard for significant variances from the Guidelines.
  • United States v. Mitchell, 107 F.4th 534 (6th Cir. 2024): Particularly important here—explicitly recognizes that “pretrial conduct” is a proper § 3553(a) consideration because it bears on the defendant’s history and characteristics and the need to promote respect for the law.
  • United States v. Zobel, 696 F.3d 558 (6th Cir. 2012): Supports that a district court may emphasize certain factors over others so long as it adequately considers and weighs all relevant factors.
  • United States v. Young, 847 F.3d 328 (6th Cir. 2017): Invoked for the idea that a detailed explanation can demonstrate that the court considered the relevant information and crafted a sentence reflecting § 3553(a).
  • United States v. Hymes, 19 F.4th 928 (6th Cir. 2021): Reinforces that deciding “which disparities are unwarranted” is within the district court’s discretion, a key answer to Smith’s disparity argument.

Collectively, these authorities set a high bar for reversal: as long as the district court identifies permissible considerations, explains its reasoning, and stays within the bounds of reasoned discretion, the sentence will generally be affirmed even when it is above the advisory range.

3.2. Legal Reasoning

The Sixth Circuit’s reasoning proceeds in two main steps corresponding to Smith’s objections.

A. Reliance on disciplinary incident reports from presentence detention

The district court varied upward “because of [Smith’s] conduct while awaiting disposition,” relying on three presentence detention incidents reported in the PSR: (1) a physical altercation, (2) possession of a homemade weapon in his waistband, and (3) possession of a razorblade and 28 pills in his cell.

The appellate court found no abuse of discretion because:

  • Permissible factor under § 3553(a): Under United States v. Mitchell, pretrial conduct can bear directly on “history and characteristics” and “promot[ing] respect for the law.”
  • Record support and procedural posture: Smith did not object to the PSR. Under Fed. R. Crim. P. 32(i)(3)(A), the district court may accept undisputed PSR facts as findings. Smith’s later appellate assertions (that the razor blade was from a shaving kit and the pills were prescribed) did not undermine the sentencing record because they were not presented at sentencing.
  • Reasoned discretion in weighting: Citing Rayyan, Bridgewater, and Zobel, the panel reiterated that a court may give certain factors greater weight if it otherwise canvasses the § 3553(a) factors and explains its choice. The sentencing transcript reflected that the district court raised the incidents early, heard argument, found Smith’s explanations unpersuasive, and articulated a “pattern” of noncompliance in custody as the basis for additional time.

B. Consideration of unwarranted sentencing disparities (§ 3553(a)(6))

Smith argued the district court gave “no weight” to disparity avoidance. The Sixth Circuit rejected this as a misreading of the record.

The district court explicitly acknowledged a national average sentence of 45 months for offense level 26 and criminal history category II. It nonetheless concluded a higher sentence was warranted because Smith’s case was materially different—referencing his “two separate convictions,” his two illegal entries, and repeated drug trafficking involving “highly addictive” drugs.

Under Conatser and Hymes, § 3553(a)(6) focuses on national disparities and leaves room for a sentencing judge to decide whether a disparity is justified by individualized facts. The panel held that this is what occurred: the court considered disparity and then exercised discretion to treat the deviation from the national average as warranted.

3.3. Impact

Although unpublished (“Not Recommended for Publication”), the decision reinforces several practical rules that will influence sentencing litigation in the Sixth Circuit:

  • Detention misconduct can drive a variance: Presentence detention incidents—especially those involving weapons, contraband, or violence—can provide a “sufficiently compelling” justification for an upward variance when linked to § 3553(a) concerns like respect for the law and deterrence.
  • PSR objections are critical: The opinion underscores the strategic consequence of failing to object to PSR descriptions of jail incident reports; undisputed PSR content may be treated as fact, limiting appellate arguments to the existing record.
  • Disparity arguments must grapple with “warranted” distinctions: Merely pointing to national averages or typical sentences will not carry the day if the district court identifies specific features that justify differential treatment; appellate courts will defer unless the explanation is irrational or ignores relevant considerations.

4. Complex Concepts Simplified

  • Substantive reasonableness: A challenge to the length of the sentence—whether it is too long (or short) given the statutory purposes in § 3553(a). It is distinct from procedural errors (like miscalculating the Guidelines).
  • Guidelines range: The advisory sentencing range produced by the U.S. Sentencing Guidelines based on offense level and criminal history. It is an important benchmark but not binding.
  • Variance (upward): A sentence above the Guidelines range based on the judge’s consideration of the § 3553(a) factors (as opposed to a “departure,” which is a Guidelines-authorized adjustment).
  • § 3553(a)(6) disparities: The statute directs judges to avoid unwarranted differences in sentences among similarly situated defendants nationwide; differences may be “warranted” when supported by individualized facts.
  • Undisputed PSR facts (Rule 32(i)(3)(A)): If a defendant does not object to factual statements in the presentence report, the court may adopt them as fact for sentencing.
  • Abuse of discretion (appellate standard): A deferential standard; reversal generally requires legal error, clearly erroneous factfinding, or a clear error of judgment.

5. Conclusion

United States v. O'Shane Christopher Smith affirms that a district court may impose a meaningful upward variance when the defendant’s undisputed presentence detention conduct indicates a pattern of noncompliance—particularly where incident reports involve violence, weapons, or contraband—and may do so without running afoul of § 3553(a)(6) so long as it considers national disparity concerns and explains why any disparity is warranted. The opinion’s most practical lesson is procedural: defendants must timely contest PSR accounts of detention incidents if they hope to blunt their sentencing impact or preserve a stronger record for appeal.