“Involves Possession” Does Not Require Personal Possession: Sixth Circuit Clarifies Grade A Violations Under USSG §7B1.1 in United States v. Keno Lane

Introduction

This commentary examines the Sixth Circuit’s unpublished decision in United States v. Keno Lane (No. 24-6083, Nov. 12, 2025), affirming a 24‑month revocation sentence following multiple supervised-release violations. The core legal question was whether a supervised-release violation qualifies as a Grade A violation under USSG §7B1.1(a)(1)(A)(iii) because the offense “involves possession of a firearm,” even when the defendant did not personally possess the firearm. The panel held that it does. The court further underscored that, in grading revocation violations, the focus is on the defendant’s “actual conduct,” not the formal title of the state conviction, and that within-Guidelines (policy-statement) revocation sentences receive a presumption of reasonableness on appeal.

Defendant-Appellant Keno Lane, originally convicted in federal court for firearm and obstruction offenses, repeatedly violated supervised release, culminating in a new set of violations tied to a deadly 2021 robbery in Tennessee for which he later pleaded guilty to reckless homicide in state court. On revocation, the district court classified the conduct as a Grade A violation, set the advisory range at 24–30 months (capped by statute at 24 months), and imposed a 24‑month term. Lane challenged both procedural and substantive reasonableness. The Sixth Circuit affirmed.

Summary of the Opinion

• The panel affirmed the district court’s Grade A classification under USSG §7B1.1(a)(1)(A), holding that an offense “involves possession of a firearm” even if the defendant did not personally handle the gun, where the actual conduct included a co-participant’s firearm use in a deadly robbery and the defendant drove the getaway car.
• The court emphasized that the Guidelines’ Chapter 7 grading looks to actual conduct, not necessarily the charged or convicted offense. Lane’s plea to reckless homicide did not prevent the court from finding his conduct involved firearms and constituted a crime of violence (robbery/aiding and abetting).
• The sentence was procedurally reasonable: the district court correctly calculated the advisory policy-statement range, treated it as advisory, considered the § 3553(a) factors, relied on facts not clearly erroneous, and adequately explained the sentence.
• The sentence was substantively reasonable: it fell at the bottom of the advisory range and was supported by factors including Lane’s history, the seriousness of the conduct, public safety, and deterrence. Lane did not rebut the presumption of reasonableness for within-range sentences.
• Preservation and waiver mattered: Lane did not challenge the “crime of violence” basis in his opening brief and did not request plain-error review for an argument raised for the first time on appeal regarding timing/delay; those issues were deemed waived or not reviewable under plain error absent a request.

Background

Lane’s federal criminal history began with a 2017 sentence (60 months’ imprisonment, three years’ supervised release) after a guilty plea to firearms possession as an unlawful drug user (18 U.S.C. § 922(g)(3)), false declarations before a grand jury (18 U.S.C. § 1623), and obstructing a grand jury proceeding (18 U.S.C. § 1503). After release in 2020, he repeatedly violated supervision, resulting in revocation in early 2022, a six‑month custodial term, and 15 months of renewed supervision.

The violations at issue arose after his release in May 2022. In September 2022, probation alleged (i) a slate of state felonies from a November 2021 home-invasion robbery turned deadly, and (ii) multiple failures to appear for drug testing. In state court, Lane later pleaded guilty to reckless homicide, with the remaining counts dismissed. The federal district court relied on the state plea transcript establishing that co-defendants entered the home armed; a shootout left multiple victims shot and three dead; a surviving gunman fled carrying a rifle and entered Lane’s Honda Civic; Lane drove away. The district court found two violations, classified the core conduct as Grade A based on “crime of violence” and “involves possession of a firearm,” calculated an advisory range of 24–30 months (capped at 24 by 18 U.S.C. § 3583(e)(3) because the underlying federal offense was a Class C felony), and imposed 24 months.

Analysis

Precedents Cited and Their Influence

• USSG §7B1.1; Application Note 1: The Chapter 7 policy statements instruct courts to grade violations by the defendant’s “actual conduct,” not merely the conviction label. This foundational principle permitted the district court to look beyond the reckless-homicide label and focus on the armed-robbery facts revealed in the plea colloquy.
• United States v. Montgomery, 893 F.3d 935 (6th Cir. 2018): Reiterated that revocation grading focuses on conduct rather than specific convictions, and courts may consider “hypothetical punishments” applicable to the conduct. This cleared the path for the Grade A designation regardless of the particular state plea outcome.
• United States v. McCullough, 173 F.3d 430 (6th Cir. 1999) (table) and United States v. Brownlee, 297 F. App’x 479 (6th Cir. 2008): Both decisions reinforce that courts may find a Grade A violation based on actual conduct even absent a corresponding charge or conviction, underscoring the non-formalistic approach in revocation practice.
• United States v. Morrison, 594 F.3d 543 (6th Cir. 2010): While addressing constructive possession in a different context, Morrison illustrates how possession can be inferred from control and proximity. The Lane panel highlighted that Lane cited no authority requiring personal possession for §7B1.1(a)(1)(A)(iii), reinforcing that “involves possession” sweeps more broadly than “the defendant possessed.”
• USSG §4B1.2; §7B1.1 cmt. 2: For “crime of violence” determinations, the court looked to §4B1.2, which lists robbery as a crime of violence and includes inchoate forms like aiding and abetting. This gave the panel an independent basis to uphold Grade A status even apart from the firearm-involvement rationale.
• United States v. Webster, 426 F. App’x 406 (6th Cir. 2011): Affirmed Grade A treatment for a getaway driver in a deadly armed robbery attempt. Webster directly analogized to Lane’s role as the driver facilitating the armed, violent conduct, supporting both the “crime of violence” and “involves possession of a firearm” analyses.
• Reasonableness review line:
  • United States v. Adams, 873 F.3d 512 (6th Cir. 2017), and United States v. Adams, 124 F.4th 432 (6th Cir. 2024): Revocation sentences are reviewed for procedural and substantive reasonableness under an abuse-of-discretion standard, and consideration of impermissible factors constitutes procedural error.
  • United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018): Clarifies procedural reasonableness requirements: correct range, advisory treatment, §3553(a) consideration, factual support, and adequate explanation. Also emphasizes deferential review and that weighing factors is not “math.”
  • Gall v. United States, 552 U.S. 38 (2007), and United States v. Robinson, 778 F.3d 515 (6th Cir. 2015): Guidelines are the starting point; substantive reasonableness asks whether the sentence is sufficient but not greater than necessary.
  • United States v. Perez‑Rodriguez, 960 F.3d 748 (6th Cir. 2020); United States v. Parrish, 915 F.3d 1043 (6th Cir. 2019); United States v. Jones, 81 F.4th 591 (6th Cir. 2023): Deferential review and presumption of reasonableness for within-guidelines sentences, focusing on whether the court over- or under-weighted §3553(a) factors.
  • United States v. Jackson, 627 F. App’x 460 (6th Cir. 2015): Appellant bears the burden to rebut the presumption of reasonableness for a within-range sentence.
  • United States v. Musgrave, 761 F.3d 602 (6th Cir. 2014); United States v. Davis, 537 F.3d 611 (6th Cir. 2008): Appellate courts do not second-guess reasoned district court weighing of §3553(a) factors.
  • United States v. Adkins, 794 F. App’x 514 (6th Cir. 2020): District courts need not respond to every argument; failure to raise a specific argument below undercuts a later appellate attack.
  • Holguin‑Hernandez v. United States, 589 U.S. 169 (2020): Clarifies preservation related to reasonableness arguments; cited to frame the substantive review focus.
  • United States v. Inman, 666 F.3d 1001 (6th Cir. 2012) (per curiam); United States v. Williams, 641 F.3d 758 (6th Cir. 2011); United States v. Blackie, 548 F.3d 395 (6th Cir. 2008) (Sutton, J., concurring); Bickel v. Korean Air Lines Co., 96 F.3d 151 (6th Cir. 1996); Thaddeus‑X v. Blatter, 175 F.3d 378 (6th Cir. 1999): Preservation/waiver principles and the Sixth Circuit’s practice of not applying plain error unless a party requests it; failure to raise an issue in the opening brief waives it.

Legal Reasoning

• Textual reading of §7B1.1(a)(1)(A)(iii): The phrase “involves possession of a firearm” does not include the word “defendant.” Where the Guidelines intend to require the defendant’s personal possession, they say so expressly (e.g., USSG §2K2.5; §4C1.1(a)(7)). The Lane panel read “involves” broadly to cover the offense conduct as a whole. Because the underlying event featured a co-participant armed with a rifle and an exchange of gunfire, Lane’s offense conduct “involved” firearm possession.
• “Actual conduct” governs, not the state conviction label: Application Note 1 to §7B1.1 and cases like Montgomery, McCullough, and Brownlee allowed the court to look at what occurred factually, even though Lane’s state conviction was for reckless homicide and other charges were dismissed. The district court permissibly relied on the state plea transcript to establish the conduct by a preponderance of the evidence.
• Independent “crime of violence” basis: Even aside from firearms involvement, the court held Lane’s conduct constituted a crime of violence under §4B1.2 because robbery is enumerated and aiding and abetting is expressly included. As the getaway driver for an armed robbery turned deadly, Lane’s “actual conduct” independently supported a Grade A designation (see Webster). Although Lane did not challenge this basis in his opening brief (waiver), the panel noted the record supported it.
• Procedural reasonableness:
  • Correct calculation: Grade A violation plus criminal history category IV and the Class C underlying federal offense yielded a 24–30 month advisory policy-statement range (§7B1.4). Because 18 U.S.C. §3583(e)(3) caps the custodial revocation term at two years for a Class C felony, the maximum available term was 24 months.
  • Advisory treatment and §3553(a): The district court treated the range as advisory, discussed Lane’s record, the seriousness of the violation, dangerousness/public protection, and deterrence, and explained its sentence.
  • Fact-finding: The court’s reliance on the state plea colloquy and probation testimony provided a sufficient factual basis under the preponderance standard.
• Substantive reasonableness:
  • Presumption: A within-range revocation sentence receives a presumption of reasonableness in the Sixth Circuit. Lane did not rebut it.
  • Balancing §3553(a): The court emphasized Lane’s repeated violations, drug-related noncompliance, and the grave nature of the armed-robbery conduct ending in multiple deaths. It concluded a 24‑month term was necessary to protect the public and deter further violations.
  • Timing argument rejected: Lane’s assertion that the lapse of time between the conduct and revocation undercut public-safety/deterrence rationales was neither raised below nor framed on appeal under plain-error review; in any event, the record did not establish probation’s precise knowledge at the earlier revocation, and the district court’s analysis remained balanced.

Impact and Practical Implications

• Key holding for Chapter 7 practice: In the Sixth Circuit, §7B1.1(a)(1)(A)(iii)’s “involves possession of a firearm” does not require personal possession by the supervisee. Conduct that includes a co-participant’s firearm possession—especially in a jointly undertaken, violent felony such as robbery—can justify Grade A classification.
• Conduct-over-label approach reaffirmed: Courts may look beyond the conviction title (e.g., reckless homicide) to the actual facts (armed robbery with a shooting) in grading violations. Policy-statement ranges thus turn on what happened, not what was charged or how a plea was structured.
• Two independent routes to Grade A:
  • “Involves possession of a firearm” (no personal-possession requirement), and
  • “Crime of violence” via robbery or aiding/abetting under §4B1.2.
  Defendants whose conduct includes either path face the higher Grade A ranges, often near or at statutory caps.
• Evidence sources at revocation: Reliable state plea transcripts can carry the government’s preponderance burden. Defense counsel should anticipate the use of colloquy narratives and be prepared to contest factual inferences and reliability.
• Sentencing caps and ranges: When the Chapter 7 range exceeds the statutory maximum for the class of the original offense, the statutory cap controls. Courts commonly impose the cap where the range straddles it (as here, 24–30 months capped at 24).
• Appellate strategy and preservation:
  • Raise all alternative challenges (e.g., “crime of violence” and firearm-involvement theories) in the opening brief; failure to do so risks waiver.
  • If an argument was not made below, request plain-error review expressly in the Sixth Circuit; otherwise, the court may decline to apply it.
  • To rebut the presumption of reasonableness for a within-range sentence, articulate concrete reasons showing disproportion or misweighting of §3553(a) factors.
• Probation and government practice: Expect increased reliance on “involves possession” as an independent basis for Grade A where co-participant firearms are in play, particularly in robberies and burglaries, even when the supervisee’s personal possession is not provable.

Complex Concepts Simplified

• Supervised release: A term of court supervision after prison. Violations can lead to revocation and a new custodial term, subject to statutory caps tied to the class of the original offense (e.g., two years for Class C under 18 U.S.C. §3583(e)(3)).
• Revocation grading (USSG §7B1.1):
  • Grade A: Involves a crime of violence, a controlled substance offense, or involves possession of certain firearms/devices; or any offense punishable by over 20 years.
  • Grade B: Other felonies (punishable by more than one year) not rising to Grade A.
  • Grade C: Lesser offenses/technical violations.
  • Grading uses the defendant’s actual conduct, not merely the statutory label.
• “Involves possession of a firearm”: Under §7B1.1(a)(1)(A)(iii), this does not require proof that the supervisee personally held or constructively possessed the firearm; it suffices that the underlying conduct included firearm possession (e.g., by a co-participant) in a way integral to the offense event.
• “Crime of violence” (USSG §4B1.2): Includes enumerated offenses like robbery and extends to aiding and abetting, attempt, and conspiracy. This definition informs Grade A determinations under §7B1.1 (see comment 2).
• Standards of proof and review:
  • Revocation fact-finding: preponderance of the evidence (more likely than not).
  • Appeal standards: abuse-of-discretion review for both procedural and substantive reasonableness.
  • Presumption of reasonableness: within-range revocation sentences are presumed reasonable; the defendant must rebut this on appeal.
  • Waiver/forfeiture: Issues not raised in the opening brief are typically waived; unpreserved issues generally require an explicit request for plain-error review in the Sixth Circuit.
• Procedural vs. substantive reasonableness:
  • Procedural: correct range; advisory treatment; consideration of §3553(a); no impermissible factors; reliance on non-clearly-erroneous facts; explanation of the sentence.
  • Substantive: whether the length is proportionate to the offense and offender in light of §3553(a), and not greater than necessary.

Conclusion

United States v. Keno Lane clarifies that for Grade A violations under USSG §7B1.1(a)(1)(A)(iii), an offense “involves possession of a firearm” even absent the defendant’s personal possession where the actual conduct includes a co-participant’s firearm use—particularly in violent, jointly undertaken crimes like armed robbery with a getaway driver. The decision also reinforces the conduct-based nature of revocation grading and provides a second, independent basis for Grade A where the conduct constitutes a “crime of violence” under §4B1.2, including aiding and abetting robbery. On appellate review, the Sixth Circuit’s deferential posture—presuming the reasonableness of within-range revocation sentences and insisting on issue preservation—proved decisive.

Practitioners should anticipate more frequent Grade A classifications in cases involving co-participant firearms and should prepare to challenge or bolster the “actual conduct” narrative through reliable records. Defense counsel must preserve alternative legal theories (e.g., crime-of-violence challenges) in the district court and opening appellate briefs and explicitly request plain-error review when necessary. Although not precedential, Lane offers a clear and practical roadmap for revocation litigation in the Sixth Circuit, aligning textual interpretation, policy-statement practice, and deferential appellate review in a way likely to influence future supervised-release cases.