Reaffirmed Principle: District Courts May Heavily Weight Criminal History and Public-Safety Risks to Justify Above-Guidelines Sentences

Introduction

In United States v. Jemar Jeresse Simmons, the U.S. Court of Appeals for the Sixth Circuit (Judges Kethledge, Larsen, and Bloomekatz; opinion by Judge Larsen) affirmed a 115-month sentence—28 months above the advisory Guidelines range—for a defendant who pleaded guilty to felon-in-possession and illegal possession of a machine gun. Although “Not Recommended for Publication,” the opinion fortifies a familiar but consequential theme in federal sentencing law: district courts retain broad discretion to vary upward for recidivism and risk-enhancing conduct, even when those factors are already captured within the Guidelines calculation, so long as the record shows the court reasonably weighed the 18 U.S.C. § 3553(a) factors.

The appeal raised solely a substantive reasonableness challenge. The court’s analysis underscores that on such claims, appellate review is deferential; it does not reweigh the § 3553(a) factors but instead asks whether the district court abused its discretion in concluding the variance was necessary to reflect offense seriousness, protect the public, deter, and promote respect for the law.

Case Background

The case arises from two episodes in April 2024. Police responded to a 911 call at an Ohio gas station from a woman who felt unsafe around Jemar Simmons. When officers approached, Simmons—agitated and intoxicated—resisted, attempted to flee, repeatedly reached for his waistband, and ultimately dropped a Glock 17 equipped with a switch (rendering it fully automatic) and an extended 28‑round magazine. An officer sustained a concussion during the struggle. The woman later reported that Simmons had threatened her with a firearm earlier that evening.

After being charged in state court, Simmons failed to appear for arraignment. Days later, when Akron police attempted a traffic stop, he initiated a high-speed chase, crashed into a tree, fled on foot, and was ultimately apprehended. Officers recovered a firearm on the roadway. A subsequent search of the apartment where Simmons was staying uncovered fentanyl, cocaine, and a scale.

A federal grand jury indicted Simmons for: (1) being a felon in possession of a firearm and ammunition, 18 U.S.C. §§ 922(g)(1), 924(a)(8), and (2) possessing a machine gun, 18 U.S.C. §§ 922(o)(1), 924(a)(2). He pleaded guilty to both counts. The advisory Guidelines range was 70–87 months. The district court varied upward to 115 months, citing Simmons’s extensive criminal history, repeated firearms possession as a felon, escalation in risk, persistent noncompliance with the law, and public-safety needs.

Summary of the Opinion

The Sixth Circuit affirmed. Applying abuse-of-discretion review, the panel held the district court acted within its discretion by:

• Placing “extra weight” on Simmons’s lengthy and violent criminal history and pattern of firearm possession while a felon;
• Emphasizing the nature of the instant offenses, including the machine-gun conversion device, the extended magazine, intoxication, dangerous resistance to arrest that injured an officer, failure to appear, high-speed flight, and subsequent discovery of fentanyl and cocaine; and
• Finding mitigating circumstances—childhood trauma and abuse, family instability, mental-health history, and limited support—were outweighed by the need to reflect seriousness, deter, promote respect for the law, and protect the public.

The panel rejected the “double counting” argument—that the court could not rely on criminal history and noncompliance because the Guidelines already accounted for them—reiterating Sixth Circuit authority that such factors may support an upward variance even if they appear in the Guidelines calculation. The 28‑month variance (roughly 32% above the top of the range) was substantively reasonable in light of the record and § 3553(a) factors.

Analysis

Precedents Cited and Their Role

• United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018). The court quoted Rayyan’s articulation that a substantive reasonableness challenge alleges a sentence “too long” and claims the district court misallocated weight among § 3553(a) factors. Rayyan is regularly used to frame the limited, deferential appellate inquiry: not whether the appellate court would weigh the factors differently, but whether the district court’s weighing was unreasonable.
• United States v. Bailey, 931 F.3d 558 (6th Cir. 2019). Cited for the standard of review: abuse of discretion governs substantive reasonableness challenges.
• United States v. Jeter, 721 F.3d 746 (6th Cir. 2013). The panel reiterated that within-Guidelines sentences are presumptively reasonable, but outside-Guidelines sentences carry no presumption either way. The takeaway: an upward variance is not presumptively unreasonable; it must be measured against the district court’s explanation under § 3553(a).
• Gall v. United States, 552 U.S. 38 (2007). Gall supplies the overarching framework: appellate courts must give “due deference” to the district court’s reasoned judgment that the § 3553(a) factors justify the variance’s extent. No “extraordinary circumstances” are required to support a variance; what matters is a sufficiently reasoned, record-based explanation.
• United States v. Dunnican, 961 F.3d 859 (6th Cir. 2020); United States v. Williams, 807 F. App’x 505 (6th Cir. 2020); United States v. Trejo, 729 F. App’x 396 (6th Cir. 2018). These decisions squarely refute the “double-counting” objection in the variance context. The Sixth Circuit has “repeatedly held” that a district court may rely on criminal history and patterns of lawbreaking to vary upward even when those facts influence the Guidelines. Dunnican, in particular, collects cases underscoring that the Guidelines do not bar a court from assigning additional weight to recidivism or risk factors when assessing § 3553(a).

Legal Reasoning

The panel’s reasoning proceeds in three steps:

1. Define the lens of review. The court construes Simmons’s challenge as substantive only, reviewed for abuse of discretion. Under Rayyan and Gall, the inquiry centers on whether the district court reasonably balanced the § 3553(a) factors and adequately explained why the variance’s extent was justified.
2. Survey the district court’s § 3553(a) analysis. The sentencing judge emphasized:
   • History and characteristics: A persistent, escalating criminal record beginning in juvenility; violent offenses at age 18 (kidnapping, aggravated robbery, robbery, felonious assault, obstructing, marijuana possession), including striking a victim in the head with a hammer and taking the victim’s 3‑year‑old child; repeated prison infractions; reoffending after supervision; prior felon-in-possession convictions (2015, 2018); and a conviction for failing to comply with police orders.
   • Nature and circumstances: The April 2024 events presented acute risk—intoxication, resisting arrest, reaching for the waistband, officer concussion, and a Glock 17 modified with a machine-gun “switch” and an extended magazine. After being released, Simmons failed to appear, then later engaged in a high-speed chase culminating in a crash and foot flight. Subsequent events included recovery of another firearm and the discovery of fentanyl and cocaine at the apartment where he was staying.
   • Statutory purposes: The court found an above-Guidelines sentence necessary to reflect seriousness, provide just punishment, promote respect for the law, deter further crimes, and protect the public.
   • Mitigation: The court expressly considered substantial mitigating evidence—childhood abuse and trauma, parental addiction and criminal history, death of an adoptive father, sexual abuse, mental-health history, limited support, and family responsibilities—but concluded the public-safety and recidivism concerns outweighed those considerations.
3. Reject the double-counting argument. Relying on Dunnican and similar cases, the panel reaffirmed that criminal history and patterns of lawbreaking can legitimately bear additional weight in § 3553(a) balancing even if the Guidelines already account for them. In other words, the Guidelines calculation is the starting point, not a ceiling on the relevance or weight of risk-related facts.

The court concluded that the district court’s reasoning, grounded in a detailed record of recidivism, dangerous firearm conduct (including a machine gun conversion device), violent resistance, and disregard for court orders, adequately justified a 28‑month upward variance. Given the deferential standard, no abuse of discretion occurred.

Impact and Practical Significance

While nonprecedential, Simmons reinforces several practical points in Sixth Circuit sentencing:

• Criminal history can justify significant upward variances. The opinion adds to the Sixth Circuit’s consistent line of decisions permitting courts to elevate sentences based on recidivism, patterns of dangerous conduct, and noncompliance—even when those considerations also contribute to offense levels and criminal history scores.
• Risk-enhancing firearm features matter. A “Glock switch” converting a handgun into a fully automatic weapon and an extended magazine are aggravating features that a district court may view as amplifying public-safety risk, supporting variances under § 3553(a)(2)(A)–(C).
• Flight, resistance, and harm to officers are weighty aggravators. Conduct that demonstrates lawlessness, endangers officers or the public (e.g., high-speed chases), or causes injury, can meaningfully influence the § 3553(a) calculus.
• Mitigation must be considered—but may be outweighed. Even extensive mitigation—childhood trauma, mental-health history, and familial responsibilities—does not compel a within-Guidelines sentence when persistent recidivism and public-safety needs are pronounced and well documented.
• Appellate deference remains robust in substantive reasonableness review. Outside-Guidelines sentences do not carry a presumption of reasonableness, but the due-deference standard often results in affirmance where the record is clear and the district court’s explanation tracks § 3553(a).
• Statutory maxima frame, but rarely drive, the analysis. The felon-in-possession count cited 18 U.S.C. § 924(a)(8) (reflecting the increased statutory maximum for § 922(g)), and the machine-gun count cited § 924(a)(2). The 115‑month sentence comfortably sits below the maxima, underscoring that the heart of appellate review is not ceiling constraints but reasoned application of § 3553(a).

Complex Concepts Simplified

• Substantive reasonableness: A challenge that the sentence is “too long” or “too short” given the statutory factors. It focuses on the bottom-line fairness and fit of the sentence, not procedural steps or arithmetic.
• Upward variance vs. departure: A variance is a non-Guidelines sentence based on § 3553(a). A departure is a sentence outside the range using provisions within the Guidelines. This case involves a variance.
• “Double counting” (in the variance context): Defendants sometimes argue that courts cannot rely on facts already reflected in the Guidelines to justify a variance. The Sixth Circuit repeatedly rejects this argument; sentencing judges may still give those facts additional weight under § 3553(a).
• § 3553(a) factors: Include nature/circumstances of the offense; history/characteristics of the defendant; the need for the sentence to reflect seriousness, deter, protect the public, and promote respect for the law; and the need to avoid unwarranted disparities, among others.
• Presumption of reasonableness: In the Sixth Circuit, a sentence within the Guidelines range is presumptively reasonable. A sentence outside the range carries no presumption one way or the other; courts evaluate the explanation and the record.
• Machine-gun “switch”: A small device that converts a semiautomatic Glock into a fully automatic firearm. Its presence elevates risk and, as here, can influence the court’s assessment of offense seriousness and public danger.
• “Not Recommended for Publication”: The opinion is not binding precedent in the Sixth Circuit, though it may be cited for its persuasive reasoning where permitted.

Conclusion

United States v. Simmons is a clear, succinct reaffirmation of the Sixth Circuit’s deferential approach to substantive reasonableness review and its acceptance of upward variances supported by recidivism and public-safety concerns—even where those factors already influence the Guidelines. The district court’s careful recitation of Simmons’s violent criminal past, repeated firearm possession as a felon, dangerous resistance culminating in an officer’s concussion, high-speed flight, and additional risk-laden conduct supplied a robust record for the variance. The court considered compelling mitigation but reasonably found it outweighed by the need to protect the community, deter future crimes, and promote respect for the law.

Key takeaway: In the Sixth Circuit, defendants face an uphill battle challenging upward variances as substantively unreasonable when the sentencing judge thoroughly explains why a defendant’s pattern of violent recidivism, noncompliance, and risk-enhancing firearm conduct justifies a higher sentence under § 3553(a). Simmons thus stands as a persuasive reminder—albeit nonprecedential—that the Guidelines are a starting point, not a constraint, on a district court’s obligation to tailor a sentence to the specific risks and needs presented by the case.