The Same Misconduct May Support Separate Upward Variances for a New Offense and Supervised-Release Revocation

1. Introduction

This case addresses whether two sentencing courts may rely on the same misconduct to impose separate above-Guidelines sentences: one for a new federal offense and another for violating supervised release. The Sixth Circuit held that this overlapping consideration did not constitute impermissible double counting. The sentences addressed distinct wrongs, and Congress expressly authorized consideration of a defendant’s history and characteristics in both sentencing settings.

Defendant-appellant Deangelo Smith also argued that his revocation sentence was substantively unreasonable because the district court placed excessive weight on his participation in a fatal detention-facility assault. The court rejected that argument, emphasizing the district court’s broader consideration of Smith’s violent history, repeated violations, institutional misconduct, and the need for deterrence and public protection. The United States, as appellee, prevailed, and the revocation judgment was affirmed.

2. Background and Sentencing History

In 2016, Smith pleaded guilty to three armed robberies involving the brandishing of a firearm and pointing it at victims. He received 120 months’ imprisonment followed by three years of supervised release.

Smith began supervised release on June 4, 2024. He subsequently tested positive for marijuana twice. During a later traffic stop, officers discovered a firearm in his waistband after he disclosed that he possessed it. A federal grand jury indicted him for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).

While detained, Smith engaged in additional serious misconduct. He made a homemade shiv and used it to assault another inmate, disobeyed correctional officers, and attempted to smuggle drugs into the facility. Most significantly, on August 31, 2025, Smith and three other detainees attacked and stabbed another detainee, resulting in that detainee’s death.

Different district judges handled these proceedings. The firearm sentencing judge considered the fatal assault among the circumstances supporting an upward variance and ordered that sentence to run consecutively to any sentence imposed for charges arising from the assault.

At the later revocation proceeding, Smith admitted violations involving new criminal conduct, association with persons engaged in criminal activity, and illegal drug use. The revocation judge rejected a within-range or time-served sentence as insufficiently deterrent and imposed the additional 24-month prison term.

The appeal concerned the revocation sentence, not an independent review of the 96-month firearm sentence. Nor does the opinion identify a separate conviction arising from the fatal assault; the assault was considered as sentencing information.

3. Summary of the Opinion

The Sixth Circuit rejected both challenges:

1. No procedural error from double counting. The same misconduct could inform two separate sentencing decisions because the proceedings imposed sanctions for distinct wrongs. Moreover, the governing statutes expressly overlap in permitting consideration of the defendant’s history and characteristics.
2. No substantively unreasonable sentence. Although 24 months doubled the upper limit of the advisory revocation range, the district court supplied sufficiently compelling reasons. Those reasons extended beyond the fatal assault to Smith’s broader history and continuing dangerous conduct.

The court also upheld the decision to make the revocation imprisonment consecutive to the firearm sentence. The district court recognized its discretion, considered the applicable Guidelines policy statement, and explained why additional imprisonment was necessary.

4. Analysis

A. Precedents Cited and Their Influence

Standards for reviewing procedural reasonableness

• United States v. Matthews, 155 F.4th 845 (6th Cir. 2025). This decision supplies the general abuse-of-discretion framework for procedural sentencing challenges. Within that framework, legal interpretations receive fresh review, while factual findings stand unless clearly erroneous. It establishes that appellate deference does not prevent independent examination of the legal double-counting question.

• Gall v. United States, 552 U.S. 38 (2007). Cited through the circuit’s procedural and substantive review decisions, Gall v. United States provides the overarching abuse-of-discretion approach. Its role is to preserve meaningful appellate oversight without allowing an appellate court simply to substitute its preferred sentence for the district court’s judgment.

• United States v. Parrish, 915 F.3d 1043 (6th Cir. 2019). This case identifies the components of procedural reasonableness: correct Guidelines calculation, recognition that the Guidelines are advisory, consideration of applicable statutory factors, avoidance of impermissible factors and clearly erroneous facts, and an adequate explanation. It places Smith’s double-counting objection within a broader procedural framework.

• United States v. Hitch, 58 F.4th 262 (6th Cir. 2023). This authority specifically supports de novo review of a claim that the district court incorrectly rejected a Guidelines double-counting argument. Thus, whether the challenged overlap was legally impermissible was not insulated by general sentencing deference.

The definition and limits of impermissible double counting

• United States v. Duke, 870 F.3d 397 (6th Cir. 2017). Quoting United States v. Farrow, this decision describes impermissible double counting as using precisely the same aspect of a defendant’s conduct in two separate ways when determining a sentence. It supplies the starting point for Smith’s objection, but not a categorical prohibition against repeated consideration of relevant facts.

• United States v. Farrow, 198 F.3d 179 (6th Cir. 1999). The opinion invokes this case through both the definition quoted in United States v. Duke and the legislative-intent principle quoted in United States v. Battaglia. Its importance is that identifying factual overlap does not end the inquiry: the court must also consider whether Congress or the Sentencing Commission authorized cumulative consequences.

• United States v. Battaglia, 624 F.3d 348 (6th Cir. 2010). This decision recognizes that double counting is permissible when Congress or the Sentencing Commission intended multiple penalties for the same conduct. It also explains that genuinely impermissible double counting makes a sentence procedurally unreasonable. Smith’s appeal failed because the overlap here fell on the permissible side of that distinction.

• United States v. Nunley, 29 F.4th 824 (6th Cir. 2022). This case explains that punishment for distinct aspects of conduct is not double counting and confirms that impermissible double counting is procedural error. It supports the court’s distinction between the new firearm offense and the separate violation of supervised release.

Overlapping statutory factors and separate proceedings

• Esteras v. United States, 606 U.S. 185 (2025). The court cites this decision in discussing the relationship between § 3583(e) and § 3553(a). Its function in this opinion is to support attention to the statutory framework governing revocation sentencing, including the express incorporation of the defendant’s history and characteristics. The analysis does not assume that every factor applicable to an ordinary criminal sentence also applies to revocation.

• United States v. Matute-Argueta, 817 F. App’x 152 (6th Cir. 2020). This unpublished decision is the closest circuit analogue. It rejected a double-counting challenge where an upward revocation variance rested on conduct already accounted for in a separate criminal sentence. The Smith panel used it to show that a prior sentence’s consideration of misconduct does not exhaust that misconduct’s relevance to a distinct revocation proceeding.

• United States v. Roe, 9 F.4th 754 (8th Cir. 2021). This out-of-circuit authority similarly found no impermissible double counting when the same conduct informed both a felon-in-possession sentence and a supervised-release revocation sentence. It reinforces the Sixth Circuit’s conclusion with a closely comparable application elsewhere.

Substantive reasonableness and the size of a variance

• United States v. Lee, 974 F.3d 670 (6th Cir. 2020). This case supplies abuse-of-discretion review for substantive reasonableness. It frames Smith’s excessive-weight argument as a challenge to the district court’s overall sentencing judgment rather than an invitation to reweigh the evidence from scratch.

• United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020). This decision requires consideration of the extent of an upward variance and states that a greater variance demands a more compelling justification. It provides an important constraint on deference: doubling the top of Smith’s advisory range required substantial, individualized reasons.

Consecutive imprisonment and adequate explanation

• United States v. Johnson, 640 F.3d 195 (6th Cir. 2011). This authority explains that U.S.S.G. § 7B1.3(f), although advisory, must be considered when applicable. A district court may then exercise its discretion to impose consecutive imprisonment. The Smith panel relied on this distinction between considering the policy statement and mistakenly treating it as binding.

• United States v. King, 914 F.3d 1021 (6th Cir. 2019). The court cites this decision when assessing the district judge’s explanation of the applicable § 3553(a) factors. It supports the conclusion that the upward variance and consecutive sentence were justified through an individualized account of deterrence and protection, rather than through an unexplained sentencing preference.

B. Legal Reasoning

1. Statutory overlap made the misconduct relevant in both proceedings

The court began with the relationship between 18 U.S.C. §§ 3553(a) and 3583(e). Section 3553(a)(1) directs consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant.” Section 3583(e), governing revocation, expressly incorporates that factor.

The fatal assault therefore remained relevant to Smith’s history and characteristics even after the firearm sentencing judge considered it. Its relevance was not confined to determining the punishment for a possible assault prosecution. It also informed an assessment of Smith’s conduct, dangerousness, and response to legal supervision.

The court treated this statutory overlap as deliberate. Congress’s authorization to consider the same category of information in both settings defeated the proposition that the information became unavailable after its first sentencing use.

2. Separate wrongs justified separate sentencing judgments

The panel also distinguished duplication within a single sentencing calculation from the use of relevant information across separate cases. As the opinion put it, “discrete wrongs receive discrete penalties.” Possessing a firearm as a felon violated a criminal statute; violating supervised release constituted a separate wrong arising from Smith’s existing sentence and conditions of supervision.

Importantly, the challenged detention misconduct was not itself the basis for either underlying adjudication described in this appeal. It was information informing the appropriate sentence in each proceeding. Reusing that information did not merge the two proceedings into a single punishment for the assault.

The court described the same-proceeding limitation as a general rule, not an absolute proposition that any repeated use of conduct across different cases is necessarily lawful. Each sentencing decision must still rest on permissible factors and satisfy ordinary reasonableness requirements.

3. The magnitude of the variance required—and received—substantial justification

The revocation judge imposed 24 months against an advisory range of six to twelve months. The appellate court expressly acknowledged that this doubled the range’s upper limit. It nevertheless found the explanation sufficiently compelling.

Smith’s argument depended on portraying the fatal assault as the dominant or exclusive reason for the increase. The record showed a broader assessment:

• Three prior armed robberies involving firearms directed at victims;
• Repeated marijuana-related supervised-release violations;
• A new firearm offense during supervision;
• Possession and use of a homemade weapon while detained;
• Other assaults, disobedience, and attempted drug smuggling; and
• Participation in the fatal group assault.

These circumstances supported the district court’s concern about what Smith might do after returning to the community. His continued misconduct in custody also supported the conclusion that a lower sentence would not provide adequate deterrence.

4. Consecutive imprisonment reflected discretion, not automatic application

U.S.S.G. § 7B1.3(f) recommends consecutive imprisonment following revocation. Although its wording uses “shall,” its status as a policy statement makes it nonbinding.

The district court understood that distinction. It exercised discretion and connected the additional, consecutive term to deterrence and protection of the public and those near Smith. The appellate court therefore upheld both the length of the sentence and its relationship to the firearm sentence.

The result did not depend on declaring every § 3553(a) consideration available at revocation. The court relied on incorporated considerations, particularly history and characteristics, deterrence, and public protection.

C. Potential Impact and Limits

For future sentencing proceedings: The opinion supports independent consideration of relevant misconduct when a defendant faces both prosecution for a new offense and revocation. A defendant cannot establish impermissible double counting merely by showing that another sentencing judge already considered the same facts.

For sentencing judges: The decision underscores the value of identifying distinct sentencing purposes, considering the applicable statutory factors, and explaining why the advisory range is inadequate. A substantial variance remains subject to meaningful justification, even where the underlying misconduct is exceptionally serious.

For defense arguments: The opinion suggests the importance of distinguishing prohibited duplication within a sentencing calculation from permissible overlap between proceedings. Challenges concerning factual reliability, legally excluded considerations, or inadequate explanation remain analytically different from Smith’s unsuccessful objection.

Limits: The opinion does not authorize unlimited cumulative punishment, decide a constitutional double-jeopardy claim, or resolve the consequences of a later assault prosecution. It also does not separately analyze the legality of the renewed five-year supervision term. Its principal significance is its application of existing law to overlapping sentencing information, with persuasive rather than new binding precedential force.

5. Complex Concepts Simplified

Supervised release

A period of court-ordered supervision after imprisonment. Violating its conditions can result in revocation and additional imprisonment.

Upward variance

A sentence above the advisory Guidelines range based on applicable statutory sentencing considerations. Unlike a Guidelines enhancement, it does not change the calculation of that range.

Impermissible double counting

Improperly giving the same aspect of conduct duplicative sentencing consequences. Repeated consideration is not automatically improper, especially when authorized by the governing framework or used in separate proceedings addressing distinct wrongs.

Procedural reasonableness

Whether the court used a legally sound sentencing process, including correct calculations, permissible considerations, reliable factual findings, and an adequate explanation.

Substantive reasonableness

Whether the resulting sentence is justified in light of the relevant circumstances and statutory purposes.

Abuse-of-discretion review

Appellate review that respects the sentencing judge’s permissible choices while allowing correction of legal errors and unreasonable judgments.

Consecutive and concurrent sentences

Consecutive prison terms are served one after another; concurrent terms overlap. Here, the two prison terms were consecutive, while the supervision terms were ordered to run concurrently.

6. Conclusion

United States v. Deangelo Smith confirms that misconduct does not lose its sentencing relevance merely because another court has already considered it. Separate proceedings for a new crime and a supervised-release violation may independently account for the same history and characteristics.

The opinion also preserves an important limitation: a substantial upward variance requires a substantial explanation. Smith’s sentence survived because the district court connected an extensive pattern of violence and noncompliance to the permissible objectives of deterrence and protection, rather than relying solely on the gravity of one incident.