And, at the risk of belaboring the point, we note that many of the unpublished cases on which the dissent and the government rely employ this reasoning as well. See, e.g. , United States v. Wade , 744 F. App'x 265, 266 (6th Cir. 2018) (upholding an upward variance for check fraud because the case marked the defendant's "sixth total conviction for check fraud" and his guidelines range "failed to reflect that his two prior federal convictions were for the same misconduct, showing Wade was ‘very likely to reoffend’ "); United States v. Heard , 749 F. App'x 367, 375 (6th Cir. 2018) (upholding an upward variance because the defendant "had previously served a nine-year sentence for violent firearms offenses, which had injured two people and threatened two more" and "his prior sentences had done nothing to deter Heard from once again returning to the streets with a gun and firing it"); United States v. Martinez-Rendon , 454 F. App'x 503, 504 (6th Cir. 2012) (upholding an upward variance for illegal reentry based in part on the defendant's "repetition of the instant offense" where the defendant already "had been deported on two separate occasions"). Our dissenting colleague refuses to apply the consistent reasoning that we have employed in these cases to the present case.
Besides, we've repeatedly rejected the argument that a sentence is substantively unreasonable just because the district court justified an upward variance by citing conduct used to calculate the Guidelines range. United States v. Lanning, 633 F.3d 469, 477-79 (6th Cir. 2011); see United States v. Heard, 749 F. App'x 367, 372 (6th Cir. 2018) (collecting cases). Generally, before a district court can consider uncharged or dismissed conduct in sentencing, the court must find that it happened by a preponderance of the evidence.
But "[t]his court has consistently rejected [this] general argument: that a sentence is substantively unreasonable whenever a district court considers conduct in imposing a variance that was already used to calculate the Guidelines range." United States v. Heard, 749 F. App'x 367, 372 (6th Cir. 2018) (collecting cases); see also id. at 381 ("Double-counting is not, in and of itself, a problem.") (Moore, J., dissenting). So, Mr. Drake's argument that the variance was unreasonable simply because the district court double-counted must fail.
Put simply, "the district court was imputing some nefarious conduct to [Hatcher] that the record simply does not support." United States v. Heard , 749 F. App'x 367, 384 (6th Cir. 2018) (Moore, J., dissenting). To rely on such an inference based on a complete absence of record evidence was plain error.
The district court chose to "[impute] some nefarious conduct to [Parrish] that the record simply does not support," which is unreasonable. United States v. Heard , 749 Fed.Appx. 367, 384 (6th Cir. 2018) (J. Moore, dissenting). Additionally, the majority makes several inferential leaps in attempts to interpret the meaning of Parrish’s statements at sentencing and to characterize the district court’s assumptions as reasonable.
In the early morning hours of March 27, 2016, Heard and his codefendant, Milton Sherrod, drove to a gas station in East Cleveland, Ohio, after leaving a night club. United States v. Heard, 749 Fed.Appx. 367, 369 (6th Cir. 2018).