United States of America v. Davion J. Shepherd

NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0267n.06
No. 25-3751
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVION J. SHEPHERD,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO
OPINION
Before: KETHLEDGE, NALBANDIAN, and HERMANDORFER, Circuit Judges.
KETHLEDGE, Circuit Judge. Davion Shepherd pled guilty to federal drug charges, and
the district court sentenced him to 167 months in prison. On appeal, Shepherd argues that his
sentence is unreasonable. We reject his arguments and affirm.
I.
In 2023, Davion Shepherd repeatedly sold drugs to a confidential informant. Law-
enforcement officers obtained a warrant to search Shepherd’s apartment and car, where they found
fentanyl, a fentanyl analogue, methamphetamine, crack cocaine, and drug paraphernalia. A federal
grand jury then indicted Shepherd on four counts of possession with intent to distribute a controlled
substance and one count of conspiracy to distribute and possess with intent to distribute a
controlled substance. See 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C); § 846. Shepherd pled guilty
to the conspiracy and three counts of possession.

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Before sentencing, the probation department prepared a presentence investigation report.
The PSR stated that Shepherd had possessed or sold 644.87 grams of a fentanyl analogue, 36.87
grams of methamphetamine, and 5.92 grams of crack cocaine. Notably, the PSR listed a quantity
for the fentanyl analogue that differed from the quantity in the written plea agreement. (In his plea
agreement, Shepherd acknowledged that he had possessed 462.15 grams of a fentanyl analogue,
178.19 grams of fentanyl, and a 4.53-gram mixture of the two.) The probation department,
applying the conversion ratios set forth in the sentencing guidelines, calculated that Shepherd was
responsible for a converted drug weight of 6,543 kilograms, and ultimately recommended a
sentencing range of 151 to 188 months in prison.
At sentencing, the district court confirmed that Shepherd had reviewed the PSR with his
attorney and had no objections to it. The court then allowed the parties to speak. Shepherd’s
attorney identified Shepherd’s children as a mitigating factor, stating that Shepherd had “a 10-
year-old son that is struggling” without him, and that Shepherd “now realizes that he wants to be
there for that child, to make sure that [] child doesn’t go down the path that he’s gone down.” R.
46, PageID 312–13. During his colloquy, Shepherd said, “I want to be a more responsible person.
This situation affected my family, kids, because I need to be there for my kids so I can keep them
on the right path[.]” Id. at 314–15. In response, the prosecutor cast doubt on Shepherd’s sincerity,
pointing out that he owed $5,108 in child support, despite having “more money in his house than
he needed” to cover that obligation. Id. at 316–17.
The court then summarized the PSR and adopted its calculations, without objection from
the parties. The court also reviewed Shepherd’s criminal history, including his prior convictions
for drug abuse, drug possession, attempted domestic violence, attempted felonious assault, and
illegal possession of weapons.

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The court then considered the § 3553(a) factors, explaining that dealing fentanyl is a serious
offense. The court was also “frustrate[d]” by Shepherd’s disregard for his children, asking, “did
you ever think, if I get caught, what happens to my kids?” Id. at 332. The court told Shepherd
that the money he had hidden away “should go to your kids, not be stashed in your house as drug
proceeds.” Id. at 334. The court then imposed a within-guidelines sentence of 167 months in
prison. This appeal followed.
II.
Shepherd challenges the substantive reasonableness of his sentence, which we review for
an abuse of discretion. United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). A sentence is
substantively unreasonable when the district court puts “too much weight” on some § 3553(a)
factors and “too little on others.” Id. Shepherd received a within-guidelines sentence, so we
presume that his sentence is reasonable. See United States v. Vonner, 516 F.3d 382, 389–90 (6th
Cir. 2008) (en banc).
Shepherd emphasizes that his sentence is 26 months longer than the national average for
similar offenders. See generally 18 U.S.C. § 3553(a)(6). By properly calculating Shepherd’s
guidelines range, however, the court “necessarily gave significant weight and consideration to the
need to avoid unwarranted disparities.” United States v. Hills, 27 F.4th 1155, 1201 (6th Cir. 2022)
(quotation omitted). And the court otherwise described in detail the particular facts relevant to
Shepherd’s sentence. That his sentence exceeded the national average does not make it
unreasonable. See United States v. Hymes, 19 F.4th 928, 937 (6th Cir. 2021).
Nor, suffice it to say, has Shepherd otherwise come close to showing that his within-
guidelines sentence is substantively unreasonable. Shepherd’s remaining arguments instead
“boil[] down to an assertion that the district court should have balanced the § 3553(a) factors

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differently,” which is “beyond the scope of our appellate review.” United States v. Sexton, 512
F.3d 326, 332 (6th Cir. 2008) (citation omitted).
Shepherd also challenges the procedural reasonableness of his sentence. But Shepherd in
the district court made none of the arguments that he raises here, so we review only for plain error.
See United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). Under plain-error review,
Shepherd must show “obvious or clear” error that affected his “substantial rights” and “the
fairness, integrity, or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386
(quotation omitted).
Shepherd argues the court should not have considered his overdue child-support payments
at sentencing. But a sentencing court may consider almost any information about a defendant’s
history and characteristics, including family circumstances. See Pepper v. United States, 562 U.S.
476, 488 (2011); United States v. Lapsins, 570 F.3d 758, 773–74 (6th Cir. 2009). And Shepherd
put his relationship with his children at issue by offering it as a mitigating factor. So we reject this
argument.
Shepherd also argues that the district court miscalculated the amount of drugs he possessed.
Indeed, the court did so, because the PSR did so; on those points the parties agree. But that mistake
had no effect on Shepherd’s guidelines range. And Shepherd has not shown that this mistake
affected his substantial rights. We therefore reject this argument too.
The district court’s judgment is affirmed.

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