United States of America v. Kendrick Brown

NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0304n.06
No. 25-5908
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENDRICK BROWN,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
OPINION
Before: CLAY, GIBBONS, and BLOOMEKATZ, Circuit Judges.
CLAY, Circuit Judge. Defendant Kendrick Brown was sentenced to 33 months’
imprisonment on bank fraud charges and twelve months’ imprisonment for violating the terms of
his supervised release relating to a previous conviction. The district court ordered the two
sentences to be served consecutively. Defendant appealed, challenging the procedural and
substantive reasonableness of his twelve-month supervised release revocation sentence. For the
reasons explained below, we AFFIRM the district court.
I. BACKGROUND
In October 2020, Kendrick Brown was convicted of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) and sentenced to 40 months’ imprisonment followed
by three years of supervised release. In June 2022, Brown was released from federal prison and
began his term of supervised release.
In June 2023, Brown’s probation officer petitioned a district court in the Eastern District
of Kentucky to revoke Brown’s supervised release. By Brown’s own admission, he had violated

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the conditions of his supervised release in four ways: (1) failing to report out-of-district travel;
(2) failing to attend mandatory counseling sessions; (3) failing to report a conversation with law
enforcement to his probation officer; and (4) engaging in a conspiracy to commit bank fraud.
Although the government was aware of the bank fraud allegations, the probation officer’s petition
cited only the first three technical violations as grounds to revoke Brown’s supervised release. The
district court found that Brown had violated his supervised release based on the three technical
violations and sentenced him to eight additional months in prison. He was released in February
2024.
In May 2024, a federal grand jury in the Western District of Michigan charged Brown and
his girlfriend with bank fraud and conspiracy to commit bank fraud in violation of 18 U.S.C.
§§ 1344, 1349. Brown’s probation officer again petitioned for revocation of Brown’s supervised
release in the Eastern District of Kentucky, this time for committing bank fraud and for associating
with an individual, Brown’s girlfriend, who was also committing bank fraud. Per the request of
the district court handling the bank fraud case, this second petition was transferred to the Western
District of Kentucky so the court could dispose of the supervised release issue as part of the plea
agreement in the bank fraud case.
The parties filed their first plea agreement on May 1, 2025, and on July 24, 2025, the district
court held a plea hearing. That agreement stated (1) that Brown would receive a sentence of
33 months’ imprisonment on the bank fraud charges, and (2) that the “United States will
recommend that this sentence run concurrently to any time imposed in” the supervised release
revocation case. United States v. Brown, 3:24-CR-57-CHB-CHL (W.D. Ky.), First Plea, R.56,
PageID #204. The district court determined that the “plea . . . [did] not bind the Court on a
concurrent sentence” for the supervised release violation because it merely stated that the

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government would “recommend” a concurrent sentence. Hearing Tr., R.26, PageID #171. The
court then stated that it was inclined to “sentence [Brown] to twelve months and one day” to “run
consecutively” to the bank fraud sentence. Id. at PageID #176. Brown expressed that he had
assumed that the concurrent sentence language would be binding on the court, and Brown then
decided to withdraw his plea so that the parties could negotiate a new agreement.
On September 25, 2025, the district court held a hearing on the revised second plea
agreement proposed by the parties. The second plea stated that the parties agreed (1) that Brown
would receive a sentence of 33 months’ imprisonment on the bank fraud charges, and (2) that “a
sentence of no more than twelve months imprisonment [was] the appropriate disposition of” the
revocation case. United States v. Brown, 3:24-CR-57-CHB-CHL (W.D. Ky.), Second Plea
Agreement, R.88, PageID #425. The district court accepted the plea agreement. On the fraud
case, the district court sentenced Brown to 33 months in prison, consistent with the plea agreement.
The court then proceeded to sentencing in the revocation case. Brown stipulated that by
committing the fraud offenses, he had violated the terms of his supervised release. Nonetheless,
Brown objected to being subjected to a second revocation proceeding on the bank fraud charges
when the government could have raised the bank fraud at the original 2023 revocation proceeding.
He argued that “it was essentially unfair for . . . the [g]overnment not to proceed and deal with [the
bank fraud] issue at” the time of the prior revocation proceeding and that “it was further unfair that
he would . . . have a revocation proceeding regarding a second violation of supervised release
based on actions that took place during the time of his first revocation.” Hearing Tr., R.23, PageID
#72-73. The district court was unmoved by Brown’s objection, noting that “this isn’t a situation
where Mr. Brown is being punished twice for the same conduct.” Id. at PageID #75.

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After additional arguments from the parties, the district court noted that it had considered
the relevant 18 U.S.C. § 3553(a) sentencing factors, mitigating factors, and counsel’s arguments,
before sentencing Brown to twelve months in prison for his supervised release violation, to be
served consecutively to the bank fraud sentence. The district court further clarified that, with the
revocation sentence, it was “not punishing [Brown] for the fraud case” or “for technical violations
on the [2023] revocation case,” but was instead “punishing [him] for and revoking [his] sentence
because [he] committed another felony offense while [he was] on supervised release.” Id. at
PageID #134-35.
Brown now appeals the reasonableness of his twelve-month consecutive sentence on the
supervised release violation.
II. DISCUSSION
A. Standard of Review
We review sentences for violating supervised release “under a deferential abuse of
discretion standard for reasonableness.” United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007)
(citation and internal quotation marks omitted). “[W]e review the district court's factual findings
for clear error and its legal conclusions de novo.” United States v. Parrish, 915 F.3d 1043, 1047
(6th Cir. 2019).
B. Analysis
1. Procedural Reasonableness
Defendant first challenges the procedural reasonableness of the district court’s consecutive
sentencing determination. A sentence is procedurally unreasonable if it is marked by “significant
procedural error.” Gall v. United States, 552 U.S. 38, 51 (2007). Examples of procedural error
include erroneously calculating the sentencing Guidelines range, “treating the Guidelines as

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mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.
Defendant’s primary argument appears to be that the revocation sentence is procedurally
unreasonable because it was unfair to give him a consecutive sentence based on the bank fraud
charges when the government knew about, but did not raise, the bank fraud at his original 2023
revocation proceeding. According to the Defendant, it would have been more fair to run his
revocation sentence concurrently, ostensibly to account for the fact that he had already served eight
months for his 2023 supervised release violations. Defendant is correct that the government knew
about the bank fraud allegations at the time of the 2023 revocation hearing: at the July 2025
sentencing hearing, the government acknowledged that it knew about Defendant’s fraud crime in
2023 and asserted that it would be unfair to penalize Defendant for “something that he did before”
his supervised release “was revoked the first time.” Hearing Tr., R.26, PageID #183. The
government explicitly stated that “Mr. Brown should get credited with the eight months that he's
already served in being revoked the first time.” Id.
However, Defendant’s belief that the sentence was unfair is not enough to find that it was
procedurally unreasonable. Defendant cites no cases indicating that the district court erred in
sentencing him to additional time in prison for the bank fraud-related supervised release violation
when the government knew about the bank fraud at the 2023 hearing. To the contrary, our caselaw
indicates that the court’s actions were appropriate. In United States v. Cross, we held that a district
court committed no error in revoking a defendant’s “supervised release a second time based on
conduct occurring before the first revocation.” 846 F.3d 188, 189 (6th Cir. 2017). Cross was
serving a term of supervised release when he committed drug possession and theft offenses. Id.
The district court learned about the drug possession in 2013 and revoked Cross’s supervised

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release, ordering him to serve eight months in prison, followed by another 24 months of supervised
release. Id. The district court then learned about the theft charge in 2015, after Cross pled guilty
to the charge in state court, held another revocation hearing, and sentenced Cross to a single day
of incarceration and 60 months of supervised release. Id. at 189-90. We held that “[t]he district
court . . . had authority . . . to revoke Cross’s supervised release a second time based upon its
discovery that Cross had committed a second violation.” Id. at 190.
Cross is not squarely on point: the issue there was whether the district court had
jurisdiction to revoke supervised release a second time, not the procedural reasonableness of the
revocation sentence, and the Cross Court did not analyze whether the government knew about the
theft violation at the time of the first revocation hearing (although it stands to reason that it did
know, or at least should have known about, about the state law charge). But the basic upshot of
Cross is relevant: a district court may impose a second supervised release sentence based on
conduct that occurred prior to the first revocation hearing if the district court was not aware of that
conduct at the time of the first hearing. Here, there is no indication that the Eastern District of
Kentucky district court in the 2023 revocation hearing knew about the bank fraud allegations, and
the Western District court in the instant proceeding certainly did not. Accordingly, there was
nothing inappropriate about the district court’s decision to revoke Defendant’s supervised release
at the 2025 hearing based on conduct that occurred before the 2023 hearing.
Defendant also argues that the twelve-month revocation sentence was procedurally
unreasonable because the district court erroneously concluded that the government did not raise
the bank fraud at the 2023 hearing due to the fact the investigation was not far enough long at that
time to merit a revocation petition. According to Defendant, this conclusion was improperly
speculative because “there is nothing in the record to show that, by the time [Brown’s] release was

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revoked in August 2023, the fraud investigation was incomplete,” meaning that the government
could and should have raised the fraud at the first revocation hearing. Appellant Br. at 6. There
are several problems with this argument. First, even assuming that the government did have all
the relevant information to allow it to bring a revocation petition based on the fraud allegations,
Defendant points to no caselaw indicating that the revocation sentence was unreasonable. Second,
the record in this case does indicate that the government did not have all of the relevant facts
relating to the bank fraud allegation at the 2023 revocation hearing. The government told the
district court that, in 2023, “[t]he FBI just didn’t have” all of the evidence relating to the bank
fraud and that it “took a long time and many grand jury subpoenas to gather all of the records
necessary to be able to prove it beyond a reasonable doubt.” Hearing Tr., R.26, PageID #183.1
Based on this information, it was permissible for the district court to make the “reasonable
inference[]” that the government did not seek revocation based on the fraud violation in 2023
because it did not have enough information to do so. Parrish, 915 F.3d at 1048 (the sentencing
court “was free to make reasonable inferences from facts in the record”). Accordingly, there was
nothing procedurally unreasonable about the district court concluding that the government could
not have sought revocation based on the bank fraud allegation in 2023.
In short, we find no error with the district court’s decision to sentence Defendant to twelve
months’ imprisonment for his supervised release violation, to be served consecutively to his bank
fraud sentence. The district court generally has “discretion to select whether the sentences they
impose will run concurrently or consecutively with respect to other sentences that they impose, or
that have been imposed in other proceedings.” See Setser v. United States, 566 U.S. 231, 236
1 Indeed, the bank fraud indictment ultimately included one event that occurred after Defendant’s 2023 revocation
hearing. See United States v. Brown, 3:24-CR-57-CHB-CHL (W.D. Ky.), Indictment, R.1, PageID #11.

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(2012). And for all of the reasons described above, Defendant identifies no procedural infirmities
with the district court’s determination that Defendant merited a consecutive sentence.
Accordingly, we conclude that the district court’s sentence was not procedurally unreasonable.
2. Substantive Reasonableness
Defendant also challenges the substantive reasonableness of his revocation sentence.
Sentences are substantively unreasonable when “the district court selects a sentence arbitrarily,
bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives
an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d
508, 520 (6th Cir. 2008). “In essence, a ‘sentence is substantively unreasonable if it is too long.’”
United States v. Gates, 48 F.4th 463, 477 (6th Cir. 2022) (quoting United States v. Lee, 974 F.3d
670, 676 (6th Cir. 2020)).
Defendant’s primary substantive reasonableness argument is that the district court made its
mind up that it would sentence him to the twelve-month consecutive sentence before hearing all
of the parties’ arguments and weighing all of the factors.2 He takes issue with two statements the
district court made at the first sentencing hearing: (1) “I’m not going to run [the revocation
sentence] concurrently because of the multiple federal supervised release violations”; and
(2) “I would likely sentence him to twelve months and one day[, and] it would be run
consecutively, not concurrently.” Hearing Tr., R.26, PageID #174, 176. Defendant insists that
2 Some of our cases have construed these “early decision” arguments as going to substantive reasonableness, and
others as going to procedural reasonableness. Compare United States v. Glass, 749 F.App’x 434, 440-41 (6th Cir.
2018) (substantive reasonableness) with United States v. Epps, 655 F.App’x 444, 448-49 (6th Cir. 2016) (procedural
reasonableness); see also United States v. Barton, 174 F.4th 1007, 1014-15 (6th Cir. 2026) (“[A] district court’s
sentence-in-advance method straddles the often-hazy line between these two aspects of reasonableness.”). If we
construed this as a procedural reasonableness argument, we would apply plain error review, because Defendant did
not raise this issue before the district court. United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). Analyzing
this as a substantive reasonableness argument, we apply abuse of discretion review. Without deciding whether this
type of argument is more appropriately characterized as procedural or substantive reasonableness, we will analyze
Defendants’ argument under substantive reasonableness.

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these statements indicate that the court made a premature sentencing decision, but that position
misstates the record. The district court made both of these statements while discussing why it
would not accept the terms of the first plea agreement proposed by the parties (which asked for
the revocation sentence to run concurrently). In that context, the district court’s statements were
entirely appropriate—indeed, the district court was required “to articulate a sound reason for
rejecting [the] plea.” United States v. Moore, 916 F.2d 1131, 1136 (6th Cir. 1990).
In the same discussion about the plea rejection, the district court was careful to clarify that
it had not made up its mind about sentencing, stating: “I don’t like to say, ‘This is the sentence
I was going to impose on the supervised release,’ because I haven’t heard all those arguments yet,”
and “I can tell you in the ballpark of what I was thinking about imposing, and, again, I haven’t
heard all of the arguments. So . . . when I come into a sentencing, my mind is always open to being
persuaded.” Hearing Tr., R.26, PageID #175-76. In short, the court made no premature sentencing
determination, and to the extent the court expressed its likely approach to sentencing, that was
permissible. See United States v. Covington, 65 F.4th 726, 731 (4th Cir. 2023) (“[A] judge may
stop short of formal imposition and discuss an intended sentence at any point in the proceeding”).
Defendant also argues that the district court inappropriately focused on only one sentencing
factor, “retribution . . . for breaching the court’s trust,” in imposing the twelve-month supervised
release revocation sentence. Appellant Br. at 9. “When deciding whether to revoke a term of
supervised release, the court must consider . . . the factors set forth in [18 U.S.C. §§] 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” United States v. Hoyle, 148 F.4th
396, 406 (6th Cir. 2025) (internal quotation marks and citation omitted). Defendant correctly
points out that the district court may not, in deciding whether to revoke supervised release, consider
“the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for

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the law, and to provide just punishment for the offense”—this is also referred to as the “retribution”
factor under § 3553(a)(2)(A). 18 U.S.C. § 3553(a)(2)(A); Esteras v. United States, 606 U.S. 185,
195 (2025); Hoyle, 148 F.4th at 406. But contrary to Defendants’ assertion, the district court did
not actually consider the retribution factor in its sentencing decision. In fact, the court specifically
mentioned the Supreme Court’s decision in Esteras, which held that the district court could not
consider § 3553(a)(2)(A) at revocation sentencing. See Hearing Tr., R. 23, PageID #132. The
court did consider the fact that Defendant breached the court’s trust in violating the terms of his
supervised release, but that was entirely appropriate. See Esteras, 606 U.S. at 194 n.5 (confirming
that in a revocation proceeding, the court may sanction the defendant’s breach of trust).
The court also considered the other relevant § 3553 factors. See Hearing Tr., R.23, PageID
#132 (“[T]he Court has considered the relevant 3553(a) factors and the nature and circumstances,
the history and characteristics, the need for the deterrence, and the other relevant factors. I have
considered all of those.”). It also walked through the “mitigation factors,” stating that these
“counsel[ed] [the court] to accept the . . . plea agreement that provides . . . a 50 percent variance
from his guidelines range” of 24 months, including his “mental health issues and addiction.”
Hearing Tr., R.23, PageID #132. Still, the court determined that, because “there [had] been
multiple violations of supervised release” and a “breach of the [c]ourt’s trust,” it would run the
twelve-month sentence consecutively. Hearing Tr., R.26, PageID #176.
Accordingly, we hold that Defendant’s sentence was substantively reasonable.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court.

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