United States of America v. Smith

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA, 	)
) 	CASE NO. 1:25-cr-33
Plaintiff, 	)
)
v. 	) 	JUDGE BENITA Y. PEARSON
)
DEANGELO O. SMITH, 	)
) 	MEMORANDUM OF OPINION
Defendant. 	) 	AND ORDER
I. 	INTRODUCTION
Defendant Deangelo Smith pled guilty to being a Felon in Possession of a Firearm and/or
Ammunition, in violation of 18 U.S.C. § 922(g)(1), pursuant to a written plea agreement. ECF
No. 12. Because the Government claims that Defendant breached the plea agreement by
committing additional crimes while in pretrial detention, the Government asks to be released
from its obligations under the plea agreement. ECF No. 24 [SEALED]; ECF No. 26. In
response, Defendant does not contest his involvement in an incident that resulted in the death of
a detainee. ECF No. 28. He argues, however, that his conduct was justified self-defense.
The Court heard argument at the sentencing hearing, conducted on November 20, 2025,
and concluded that Defendant breached the plea agreement without justification, that he was not
entitled to a reduction for acceptance of responsibility, and that 18 U.S.C. § 3553(a) factors
supported an upward variance. Below, the Court further explains why it imposed a 96-month
term of incarceration.
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 1 of 26. PageID #: <pageID>

(1:25CR33)
2
II. 	BACKGROUND
A. Offense Conduct
On June 4, 2024, Defendant began a three-year term of supervised release after
completing a 120-month sentence for armed robbery. See Case No. 1:16CR204-JRA. About
five months later, on November 29, 2024, Defendant was arrested by agents from the Ohio
Investigation Unit who were investigating activities near Mookies Beverage, a liquor store in
North Randall, Ohio, when they observed four men leave a parked Jeep and enter the liquor
store. Gov’t Sent’g Memorandum, ECF No. 26 at PageID #: 172; Present’g Investigation Rep.
[SEALED], ECF No. 16, ⁋ 7. The agents ran the Jeeps’ license plate and discovered the driver
had outstanding warrants for his arrest. ECF No. 16, ⁋ 7. After the men had re-entered the Jeep
and left the parking lot, agents executed a traffic stop. Defendant was seated in the back on the
driver’s side. ECF No. 16, ⁋ 7.
Approaching the vehicle, agents observed open containers of what they suspected was
alcohol. When asked they if the occupants had any weapons, the other back-seat passenger
stated no. Defendant did not respond. ECF No. 16, ⁋ 8. After asking Defendant and the other
back-seat passenger to exit the vehicle, the agents observed a firearm at the feet of the other
back-seat passenger. ECF No. 16, ⁋ 8; ECF No. 26 at PageID #: 173. Having secured the loaded
firearm, the agents returned to Defendant (who was still sitting in the Jeep) and asked if he had a
weapon. This time Defendant replied that he had a gun in his waistband. Agents seized a loaded
SCCY CPX-2 9mm handgun from Defendant’s waistband. ECF No. 16, ⁋ 8. They also seized a
green pill from Defendant’s pocket that later tested positive for methamphetamine. ECF No. 16,
⁋⁋ 9–10.
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 2 of 26. PageID #: <pageID>

(1:25CR33)
3
At all relevant times, Defendant was prohibited from possessing a firearm and
ammunition.
On January 23, 202, Defendant was indicted for violating 18 U.S.C. § 922(g)(1). ECF
No. 1. Defendant waived his right to a detention hearing and was held in pretrial detention at the
Northeast Ohio Corrections Center (“NEOCC”). Min. of Procs. [non-document] Initial
Appearance/Arraignment (Jan. 28, 2025).
B. Plea Agreement
On April 8, 2025, Defendant entered a plea agreement with the Government. Because
the plea agreement was pursuant to Fed. R. Crim. P. 11(c)(1)(B), it also correctly stated that
“recommendations of the parties [would] not be binding upon the Court.” ECF No. 12, ⁋ 15.
See also Fed. R. Crim. P. 11(c)(1)(B) (“…such a recommendation or request does not bind the
court”).
The parties agreed that Defendant’s offense level would be 20 under U.S.S.G. §
2K2.1(a)(4)(A). The plea agreement provides that “[t]he USAO has no reason to believe at this
time that Defendant has not clearly and affirmatively accepted personal responsibility for [his]
criminal conduct.” ECF No. 12, ⁋ 18. Against that backdrop, the Government agreed that it
would recommend a three-level reduction for acceptance of responsibility, “provided
Defendant’s conduct continues to reflect [] acceptance of responsibility.” See U.S.S.G. §
3E1.1(a) – (b). This three-level downward adjustment would have resulted in a stipulated final
offense level of 17. ECF No. 12, ⁋ 18.
While the plea agreement makes it clear that there is no agreement as to Defendant’s
criminal history, the parties anticipated that Defendant would be Criminal History Category III
and that his advisory guidelines range would be 30–37 months. The parties agreed that
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 3 of 26. PageID #: <pageID>

(1:25CR33)
4
Defendant could request—without objection from the Government—a 30-month sentence, the
low end of the expected under the sentencing guidelines. ECF No. 12, ⁋⁋ 14, 17.
The plea agreement cautioned Defendant that he does not have the right to withdraw his
guilty plea if the Court rejects the parties’ sentencing recommendations or if he is dissatisfied
with his sentence. ECF No. 12, ⁋ 15. The agreement also explained the consequences Defendant
would face if he breached the plea agreement. The agreement states:
Defendant understands that if Defendant breaches any promise in
this 	agreement, 	commits 	additional 	crimes, 	obstructs 	justice,
attempts to withdraw [his] guilty plea, or if [his] guilty plea is
rejected by the Court or is vacated or set aside, the USAO will be
released from all of its obligations under this agreement and may
institute 	or 	maintain 	any 	charges 	and 	may 	make 	any
recommendations with respect to sentencing that otherwise would
be 	prohibited 	under 	the 	terms 	of 	the 	agreement. 	Defendant
understands, however, that a breach of the agreement by Defendant
will 	not 	entitle 	Defendant 	to 	withdraw, 	vacate, 	or 	set 	aside
Defendant’s guilty plea or conviction. Defendant understands that
the USAO has the right to use any statement Defendant gives under
oath in a prosecution for perjury or false statement.
ECF No. 12, ⁋ 26 (emphasis added).
While the plea agreement did not leave much to Defendant’s imagination, during the plea
colloquy, after placing Defendant under oath and finding him to be competent to plead guilty and
understand the consequences of having done so, the Court carefully reviewed the plea
agreement, including the sections above, with Defendant. Min. of Procs. [non-document]
Change of Plea Hr’g (May 13, 2025). Several times during the plea colloquy, the Court
painstakingly explained that it was not promising or obligated to impose a 30-month sentence.
In fact, the Court advised Defendant to bring his “A game” to the sentencing hearing because it
was hard for the Court to imagine why a 30-month term of imprisonment would be appropriate
given how soon Defendant committed a new crime after completing a ten-year sentence.
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 4 of 26. PageID #: <pageID>

(1:25CR33)
5
Because Defendant was in violation of an active term of supervised release, the Court advised
him that it could impose his sentence consecutively to any new term of incarceration given for
the violation of his supervised release. Ultimately, the Court only promised to keep an open
mind regarding whether a 30-month term would be sufficient. And, of equal importance, more
than once during the plea colloquy, the Court emphasized to Defendant that his breach of the
plea agreement would mean that he would lose its benefits and protections. Knowing and
understanding these things, Defendant pled guilty of his own free will and without unwritten
inducements or promises and without threats or coercion. On May 13, 2025, the Court accepted
Defendant’s plea of guilty and approved his plea agreement.
C. Presentence Investigation Report
The Presentence Investigation Report (“PSR”) agreed with the guidelines calculation
recommended by the plea agreement. ECF No. 16. The PSR calculated Defendant’s offense
level at 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A). A two-level reduction was applied because
Defendant “clearly demonstrated acceptance of responsibility for the offense.” Another level
reduction was applied because Defendant assisted authorities in investigating his conduct by
timely notifying authorities of his desire to plead guilty. ECF No. 16, ⁋⁋ 23–24. Defendant’s
total offense level is calculated at 17. ECF No. 16, ⁋⁋ 23–24.
Defendant’s criminal history score was calculated as six points, placing him in Criminal
History Category III. The PSR noted three prior convictions that contributed to this score: (1) a
2014 state-court conviction for attempted carrying a concealed weapon contributed one point; (2)
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 5 of 26. PageID #: <pageID>

(1:25CR33)
6
a 2016 municipal-court conviction for theft and falsification contributed two points; and (3) a
2016 federal conviction for armed robbery contributed three points.1 ECF No. 16, ⁋⁋ 28–30.
Based on the PSR’s calculation, Defendant’s advisory sentencing guidelines range for an
offense level of 17 with a Criminal History Category III was indeed 30–37 months. Without a
three-level reduction for acceptance of responsibility, however, Defendant’s Sentencing
Guideline range for an offense level of 20 with a Criminal History Category III is 41–51 months.
The average length of imprisonment for defendants whose primary guideline was § 2K2.1 with a
final offense level 20 and a Criminal History Category III was 45 months, with a median length
of imprisonment imposed being 41 months.2
D. Additional Crimes
About three and one-half months after he pled guilty to being a felon in possession of a
loaded firearm, and while still in pretrial detention, Defendant committed two additional crimes:
(1) he possessed an illegal weapon (i.e., a jail-made shiv); (2) which he used (in concert with
three other armed detainees) to assault Detainee Isaiha Waulk, resulting in Waulk’s death. ECF
No. 24-3. Surveillance video shows what occurred in Defendant’s dormitory in under two and a
half minutes resulting in the death of Detainee Waulk:3
• 	The A-6 General Housing Unit is a square room with a large, open common area
lined with cells on the first and second floor. Second floor cells are accessible by
1 Although Defendant committed the current offense while under a criminal justice
sentence, because his criminal history score was less than seven points, no additional points were
added. ECF No. 16, ⁋ 32 (citing U.S.S.G. § 4A1.1(e)).
2 The average and median length of imprisonment had Defendant remained a total
offense level of 17 would have been 29 and 30 months, respectively.
3 The surveillance video is without sound.
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 6 of 26. PageID #: <pageID>

(1:25CR33)
7
ascending one of two stairways situated on either side of the unit, to an open-air
balcony area.
• 	5:00:18 p.m.: Walking along the second floor balcony, Corrections Officer Michael
Bently begins to unlock cell doors, (ECF No. 24-3). Waulk is the first to exit his cell.
Almost immediately after exiting his cell, Waulk attacked another detainee who had
exited his cell, Michael Robinson-Brown, with a knife-like weapon called a shiv.
Waulk struck Robinson-Brown in the chest area. Robinson-Brown escaped further
attack by moving to the other side of the balcony.
(Surveillance Video, ECF No. 24-1, at 5:00:18 p.m.).
• 	5:00:21 p.m.: Waulk attempts to open two cell doors, but the detainees inside held the
doors closed, preventing Waulk from entering.
(Surveillance Video, ECF No. 24-1, at 5:00:21 p.m.).
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 7 of 26. PageID #: <pageID>

(1:25CR33)
8
• 	5:00:26 p.m.: Waulk shoves past CO Bentley and walks towards the stairs. At that
time, Defendant (circled in red) opens his cell door and begins walking out into the
common area.
(Surveillance Video, ECF No. 24-1, at 5:00:26 p.m.).
• 	5:00:36 p.m.: Waulk runs down the stairs and, apparently unprovoked, attacks
Defendant with his shiv.
(Surveillance Video, ECF No. 24-1, at 5:00:36 p.m.).
• 	5:00:38 p.m.: Defendant evades Waulk by running and moves towards his cell. The
door to Defendant’s cell is open (circled in red), making it possible for Defendant to
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 8 of 26. PageID #: <pageID>

(1:25CR33)
9
re-enter his cell and fully retreat from harm.
(Surveillance Video, ECF No. 24-1, at 5:00:37 p.m.).
(Surveillance Video, ECF No. 24-1, at 5:00:38 p.m.).
• 	5:00:47–5:00:49 p.m.: For approximately 27 seconds, Defendant stands in the
open doorway of his cell, touches his back, and appears to realize that he is
bleeding.
(Surveillance Video, ECF No. 24-1, at 5:00:47 p.m.).
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 9 of 26. PageID #: <pageID>

(1:25CR33)
10
(Surveillance Video, ECF No. 24-1, at 5:00:48 p.m.).
(Surveillance Video, ECF No. 24-1, at 5:00:49 p.m.).
• 	5:01:04 p.m.: After standing in the doorway of his cell for 27 seconds, Defendant
leaves his cell and walks up the stairs to the balcony area, away from Waulk (who is
pacing the first floor of the common area).
(Surveillance Video, ECF No. 24-1, at 5:01:04 p.m.)
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 10 of 26. PageID #: <pageID>

(1:25CR33)
11
(Surveillance Video, ECF No. 24-1, at 5:01:06 p.m.).
• 	5:01:39 p.m.: Defendant stayed on the second-floor balcony for approximately 50
seconds. While there, Defendant (circled in red) ties up his long hair and walks
toward the stairs going down into the common area.
(Surveillance Video, ECF No. 24-1, at 5:01:38 p.m.).
• 	5:02:01 p.m.: Defendant descends the stairs and walks past his open cell door
(circled in red), towards Waulk, who is still pacing the common area.
(Surveillance Video, ECF No. 24-1, at 5:02:01 p.m.).
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 11 of 26. PageID #: <pageID>

(1:25CR33)
12
• 	5:02:10 p.m.: Although he is bleeding from his injury, Defendant along with three
other detainees (including Robinson-Brown) begin circling and chasing Waulk
around the common area. Each is armed with a shiv—knife-like weapons.
(Surveillance Video, ECF No. 24-1, at 5:02:10 p.m.).
• 	5:02:19 p.m.: Defendant and the other detainees chase Waulk towards the
showers, where he falls. Defendant and the other detainees stab and beat Waulk.
They move Waulk to underneath the stairwell, where they continue to assault him
viciously.
(Surveillance Video, ECF No. 24-1, at 5:02:19 p.m.).
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 12 of 26. PageID #: <pageID>

(1:25CR33)
13
• 	5:02:39 p.m.: As Waulk is lying motionless beneath the stairwell, Defendant lifts
his leg and stomps on Waulk’s head with such force that Waulk’s head bounces
off the concrete floor.
(Surveillance Video, ECF No. 24-1, at 5:02:39 p.m.).
• 	5:02:45 p.m.: Defendant walks away from Waulk, tucking his shiv into his
waistband (circled in red).
(Surveillance Video, ECF No. 24-1, at 5:02:45 p.m.).
Several minutes later, NEOCC personnel arrived and attempted to administer aid to
Waulk who was pronounced dead when he reached the hospital. The jail-made weapons used in
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 13 of 26. PageID #: <pageID>

(1:25CR33)
14
the attack were later confiscated and surrendered to Youngstown, Ohio Police for investigation.
ECF No. 24-3.
III. 	DISCUSSION
A. The Government Satisfied its Burden to Prove by a Preponderance of the Evidence
That Defendant Breached the Plea Agreement Without Justification.
1. 	Defendant breached the plea agreement.
The Sixth Circuit has long treated plea agreements as contracts subject to general
principles of contract interpretation. United States v. Estrada-Gonzalez, 32 F.4th 607, 610–11
(6th Cir. 2022); United States v. Wells, 211 F.3d 988, 995 (6th Cir. 2000) (citing United States v.
Robison, 924 F.2d 612, 613 (6th Cir. 1991)). Because plea agreements also implicate
constitutional protections, the Government is held to a meticulous standard of performance and
ambiguities are construed in the defendant’s favor. Estrada-Gonzalez, 32 F.4th at 611; United
States v. Moncivais, 492 F.3d 652, 662 (6th Cir. 2007). Defendants who breach plea agreements
forfeit the right to enforce any provision therein. United States v. Ellis, 470 F.3d 275, 284 (6th
Cir. 2006) (quoting Wells, 211 F.3d at 995). The Government bears the burden to prove that
Defendant breached the plea agreement by a preponderance of the evidence. Adkins v. United
States, 131 F. App’x 456, 458 (6th Cir. 2005) (citing United States v. Benjamin, 138 F.3d 1069,
1073 (6th Cir. 1998)). It need not prove Defendant’s guilt (or that he was not acting in self-
defense) beyond a reasonable double. See id.
By entering the plea agreement, Defendant acknowledged that he understood that
committing additional crimes constituted a breach that would release the Government from its
obligations under the agreement. ECF No. 12, ⁋ 26. As indicated above, during the plea
colloquy, the Court explained the consequences of a breach and Defendant attested that he
understood them. Because the breach provision is unambiguous, the Court gives the text its
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 14 of 26. PageID #: <pageID>

(1:25CR33)
15
plain and usual meaning. United States v. Rodriguez, 797 F. App’x 933, 942 (6th Cir. 2019)
(citing 17 Am. Jur. 2d Contracts § 325 (“unambiguous contractual language is conclusive upon
the parties and the courts.”)).
Killing another human being is indisputably a crime.4 The Government produced
evidence (e.g., a surveillance video, incident report, etc.) showing Defendant and others illegally
possessed and used jail-made, knife-like weapons to assault Waulk. ECF No. 24-3. When
Waulk was lying motionless beneath the stairwell, Defendant kicked him and then stomped
Waulk’s head so violently that it bounced off the concrete floor. ECF No. 24-1. Waulk died
because of the assault. This evidence satisfies the Government’s burden to prove by a
preponderance that Defendant committed two new crimes after pleading guilty.
2. 	Defendant’s self-defense argument fails.
Defendant does not contest his involvement in the assault that resulted in Waulk’s death.
See ECF No. 28. Instead, he argues he acted in self-defense.5 As explained above, the
Government need only prove by a preponderance of the evidence that Defendant did not act in
self-defense. See Adkins, 131 F. App’x at 458. During the sentencing hearing, Defendant
4 Under Ohio law, it is unlawful to: (a) purposefully or knowingly cause the death of
another; or (b) cause the death of another person as a proximate result of committing or
attempting to commit a felony. Ohio Rev. Code § 2903.02 (murder). It is also unlawful to
knowingly cause the death of another or do so while under the influence of sudden passion or
sudden fit of rage provoked by the victim. Ohio Rev. Code § 2903.03 (voluntary manslaughter).
5 Under Ohio law, a defendant claiming self-defense bears the burden to prove by a
preponderance of the evidence that he acted in self-defense. Ohio Rev. Code § 2901.05(A). If
that burden is satisfied, the burden shifts to the state to prove beyond a reasonable doubt that the
defendant did not act in self-defense. Ohio Rev. Code § 2901.05(B)(1).
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 15 of 26. PageID #: <pageID>

(1:25CR33)
16
claimed he had “no choice” but to arm himself and participate in the assault against Waulk, who
attacked him first without provocation. Defendant’s argument elides the truth.
According to the Ohio Supreme Court, a defendant asserting self-defense must
demonstrate that:
(1) he was not at fault in creating the situation that led to the affray,
(2) had a “bona fide belief” that he was “in imminent danger of death
or great bodily harm” and his only way to escape was by using force,
and (3) he did not violate a duty to retreat.
State v. Palmer, 174 Ohio St.3d 561, 2024-Ohio-539, ⁋ 23 (Ohio 2024) (internal citation
omitted). A person has no duty to retreat, if that person is in a place that he has a lawful right to
occupy. Id. (citing Ohio Rev. Code § 2901.09(B)).
The surveillance video makes clear that Defendant may have had an argument for self-
defense at 5:00:36 p.m., when Waulk, apparently unprovoked, charged at him with a weapon and
chased Defendant around the common area. ECF No. 24-1. Defendant likely had a bona fide
belief that he was in imminent danger of death or great bodily harm because Waulk lunged at
him with a shiv. Waulk stabbed or struck Defendant in the back, causing Defendant to bleed
through his shirt. ECF No. 24-1, at 5:00:36 p.m. Defendant did not violate his duty to retreat
when attacked by Waulk. Rather, he ran back to his cell, evading further injury. ECF No. 24-1,
at 5:00:37 p.m. Defendant’s self-defense argument fails after his safe return to his cell at 5:00:38
p.m. where he remained undisturbed for 27 seconds.
Once Defendant escaped Waulk’s attack and returned to his cell, Defendant could have
stayed there. He could have entered his cell and secured the door, as other detainees had done
when Waulk approached them wielding a weapon. See ECF No. 24-1, at 5:00:21 p.m. (showing
Waulk attempt to open two second-floor cell doors while those inside held the doors shut,
denying Waulk entry). Rather than avoiding further interaction with Waulk, Defendant, after
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 16 of 26. PageID #: <pageID>

(1:25CR33)
17
standing in the doorway of his cell for 27 seconds, made a decision. He left the safety of his cell
and walked up the stairs to the balcony, where he remained for 50 seconds. ECF No. 24-1, at
5:00:37 p.m.–5:01:04 p.m. and 5:01:04 p.m.–5:01:54 p.m. Waulk did not chase or even appear
to notice Defendant’s ascent. For the second time, after having been attacked by Waulk,
Defendant was safe. He could have remained on the balcony, out of the fray.
In just under one minute from Waulk’s initial attack on him, Defendant made another
decision. This one was life-changing for himself and Waulk. Defendant restrained his hair but
not his passion and descended the stairs to the common area, illegal weapon in hand. He walked
past his open cell directly towards Waulk who was being flanked by three other detainees
approaching from the opposite stairwell. ECF No. 24-1, at 5:02:01 p.m. and 5:02:10 p.m.
Defendant became the aggressor. He assumed a fighting stance and attacked and chased
Waulk around the common area. ECF No. 24-1, at 5:02:10 p.m. Defendant ignored every
opportunity to retreat (again) from the situation and return to safety. Instead, Defendant
participated in initiating the assault that resulted in Waulk’s death. Moreover, when Waulk was
lying motionless under the stairs and no longer posing a threat, Defendant stomped on Waulk’s
head so violently that Waulk’s head bounced off the concrete floor. ECF No. 24-1, at 5:02:39
p.m. Walking away and leaving an unmoving Waulk under the stairwell, Defendant hid his
illegal weapon in his waistband. ECF No. 24-1, at 5:02:45 p.m.
Based on this record, only one conclusion is reasonable. Therefore, the Court concludes
that a preponderance of the evidence demonstrates that Defendant was not acting in self-defense
when he assaulted Waulk. Defendant’s assault and use of an illegal weapon are additional
crimes. By committing those additional crimes after having entered the plea agreement,
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 17 of 26. PageID #: <pageID>

(1:25CR33)
18
Defendant breached the plea agreement. The Government’s motion to be released from its
obligations is granted.
B. Defendant is not Entitled to an Acceptance of Responsibility Reduction Under
U.S.S.G. § 3E1.1.
Under the advisory sentencing guidelines, a district court may apply a two-level
reduction if “the defendant clearly demonstrates acceptance of responsibility for his offense.”
United States v. Merritt, 102 F.4th 375, 378 (6th Cir. 2024) (citing U.S.S.G. § 3E1.1(a)). The
defendant bears the burden of showing by a preponderance of the evidence that he has accepted
responsibility for the crime charged. United States v. Williams, 940 F.2d 176, 181 (6th Cir.
1991). Whether a defendant has accepted responsibility is a question of fact within the sound
discretion of the district court. United States v. Watkins, 86 F. App’x 934, 937–38 (6th Cir.
2004); Merritt, 102 F.4th at 382 (noting that a defendant must offer evidence beyond the fact that
they plead guilty).
Evidence of a defendant’s acceptance of responsibility “may be outweighed by conduct
of the defendant that is inconsistent with such acceptance.” U.S.S.G. § 3E1.1, App. Note 3.
Application Note 1 lists seven, non-exhaustive factors that district courts may consider when
determining whether a defendant has accepted responsibility, including “voluntary cessation of
criminal conduct or associations.” U.S.S.G. § 3E1.1, App. Note 1. Continued criminal conduct
is inconsistent with the acceptance of responsibility. See United States v. Webb, 335 F.3d 534,
538 (6th Cir. 2003) (holding a § 3E1.1 reduction denial was appropriate because defendant
continued drug trafficking after the initial search warrants were executed); United States v.
Castillo-Garcia, 205 F.3d 887, 889 (6th Cir. 2000) (denying the § 3E1.1 reduction is
“particularly appropriate” when the “defendant is a repeat offender of the same statute.”).
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 18 of 26. PageID #: <pageID>

(1:25CR33)
19
The Sixth Circuit requires post-plea agreement criminal conduct to be relevant or
connected to the charged crime before a defendant loses the acceptance of responsibility
reduction under § 3E1.1. United States v. Jett, 154 F.4th 459, 467 (6th Cir. 2025) (citing United
States v. Banks, 252 F.3d 801, 806–07 (6th Cir. 2001)) (holding that a defendant attempting to
smuggle synthetic drugs into prison during pretrial detention was sufficiently connected to his
charged drug trafficking offenses to deny the § 3E1.1 reduction). New criminal conduct is
relevant to the charged offense if it is: (1) the same type as the underlying offense; (2) the
motivating force behind the underlying offense; (3) related to actions towards a government
witness; or (4) strongly linked with the underlying offense. United States v. Finch, 764 F. App’x
533, 536 (6th Cir. 2019) (quoting United States v. Morrison, 983 F.2d 730, 735 (6th Cir. 1993)).
In Finch, the defendant had been charged with bank robbery and his prison fight was associated
with an attempt to rob a fellow inmate. Id. at 536. The Sixth Circuit affirmed the district court’s
decision not to apply the acceptance of responsibility reduction, concluding that Finch’s pretrial
detention conduct was sufficiently connected to his underlying indictment. Id.
At the sentencing hearing in this case, both Defendant and the Government argued that
Defendant’s new crime was unrelated to the underlying conviction and that Defendant was still
entitled to a two-level acceptance of responsibility reduction under § 3E1.1(a). The Court
disagrees.
Defendant was indicted under § 922(g)(1) because he unlawfully possessed a firearm and
ammunition. ECF No. 1. In assessing a different section of 922(g), § 922(g)(8), the Supreme
Court held that an “individual found by a court to pose a credible threat to the physical safety of
another may be temporarily disarmed consistent with the Second Amendment.” United States v.
Rahimi, 602 U.S. 680, 702 (2024) (citing District of Columbia v. Heller, 554 U.S. 570, 626–27
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 19 of 26. PageID #: <pageID>

(1:25CR33)
20
(2008)). Similarly, federal and state law prohibits inmates from possessing “prohibited
object[s],” which includes “a firearm or destructive device or . . . a weapon . . . or an object that
is designed or intended to be used as a weapon.” 18 U.S.C. § 1791(d)(1)(A); see Ohio Admin.
Code § 5120-9-06(C)(42) (prohibiting possession of a weapon). Both statutes seek to keep
weapons from dangerous individuals to ensure community safety. The incident report in this
case also makes clear that the weapons used by Defendant and the others were contraband
illegally possessed during detention. See ECF No. 24-3 at PageID #: 159 (reporting that all four
detainees who attacked Waulk were armed with illegal, jail-made shivs); ECF No. 24-1, at
5:02:45 p.m.
There is no reasonable distinction between § 922(g)’s goal of prohibiting a felon
convicted of armed robbery from possessing an illegal firearm and rules or statutes prohibiting a
detainee awaiting sentencing from possessing an illegal shiv. In both the underlying offense and
during the NEOCC incident, Defendant had a weapon he was prohibited from possessing
because of the risk of harm to others. That Defendant used a prohibited weapon while at
NEOCC, resulting in the death of another detainee, only underscores this commonality. His
failure to comply with the weapons prohibition during pretrial detention is consistent with his
offense conduct in violation of § 922(g) and inconsistent with acceptance of responsibility.
Consequently, Defendant is not entitled to a two-level reduction under § 3E1.1(a), nor is he
permitted to seek a third level reduction under § 3E1.1(b).6 Accordingly, Defendant’s final
6 Defendant may only receive a one-level reduction under § 3E1.1(b) if he first qualifies
for the two-level reduction under § 3E1.1(a). As explained herein, Defendant’s conduct is
inconsistent with acceptance of responsibility and, therefore, he is not entitled to any reduction.
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 20 of 26. PageID #: <pageID>

(1:25CR33)
21
offense level is 20 with a Criminal History Category III, resulting in a Sentencing Guideline
range of 41–51 months. U.S.S.G. § 5A.
C. The § 3553(a) Factors Support an Upward Variance.
Even if Defendant were entitled to an acceptance of responsibility reduction under §
3E1.1, the factors under 18 U.S.C. § 3553(a) support an upward variance as imposed. The
sentencing guidelines are advisory, and district courts need only consider the recommended
sentence ranges. United States v. Booker, 543 U.S. 220, 264 (2005). Courts must also balance
the factors set forth in § 3553(a) and impose a sentence “sufficient, but not greater than
necessary” to fulfill the purposes of sentencing. United States v. Lanning, 633 F.3d 469, 474
(6th Cir. 2011); 18 U.S.C. § 3553(a).
The § 3553(a) factors pertinent to Defendant’s case include the following:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed 	educational or
vocational training, medical care, or other correctional treatment
in the most effective manner;
. . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 21 of 26. PageID #: <pageID>

(1:25CR33)
22
18 U.S.C. § 3553(a). The Court’s obligation to balance applicable factors necessarily implies
that the Court cannot attribute unreasonable weight to any one of the pertinent factors, including
punishment. See United States v. Johnson, 680 F. App’x 451, 455 (6th Cir. 2017). Still, the §
3553(a) factors are not intended to shelter abhorrent, anti-social behavior. “No limitation shall
be placed on the information concerning the background, character, and conduct of a person
convicted of an offense which a court . . . may receive and consider for the purpose of imposing
an appropriate sentence.” 18 U.S.C. § 3661; Concepcion v. United States, 597 U.S. 481, 492
(2022) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)) (“a federal judge in deciding
to impose a sentence ‘may appropriately conduct an inquiry broad in scope, largely unlimited
either as to the kind of information he may consider, or the source from which it may come.’”).
First, regarding § 3553(a)(1), the Court considers the nature and circumstances of the
offense. Defendant pleaded guilty to being a felon in possession of a firearm. ECF No. 1. As
explained above, when an individual is found to pose a danger to others and the community,
Congress has seen fit to limit such an individual’s access to firearms. See Rahimi, 602 U.S. at
702; 18 U.S.C. § 922(g)(1). Defendant was previously convicted for robbing two banks and a
gas station at gun point. United States v. Smith, 1:16-cr-204, ECF No. 12 (N.D. Ohio Sept. 19,
2016) (Adams, J.). That he unlawfully possessed a firearm less than six months into his
supervised release for that crime is troubling.
Next, when considering Defendant’s character and background, there are some mitigating
circumstances. Defendant never met his father. ECF No. 16, ⁋ 38. Although he is not close
with his siblings, he claims he was close with his mother. ECF No. 16, ⁋⁋ 41–43. While battling
cancer, his mother turned to self-medicating with street drugs and overdosed on fentanyl in 2023,
leaving her unable to speak and reliant on a feeding tube. ECF No. 16, ⁋ 41. He earned his GED
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 22 of 26. PageID #: <pageID>

(1:25CR33)
23
in 2020 while incarcerated (ECF No. 16, ⁋ 56) and is still relatively young at only 29 years old.
Defendant was diagnosed with, and began taking medication for, a major depressive disorder and
unspecified psychosis in 2024. ECF No. 16, ⁋⁋ 47–48. Except for working at Chipotle for a
brief period, Defendant was unemployed since his release from federal prison, though during the
sentencing hearing he claimed to have submitted 180 job applications. His effort to become
employed is commendable
Mitigating circumstances aside, Defendant’s criminal history and pretrial behavior weigh
in favor of an upward variance. In contrast to his sparce employment record, Defendant’s
criminal history is extensive and demonstrates escalating severity, beginning with criminal
trespass at age 15, to armed robbery at age 20, to an assault resulting in death at age 29. See ECF
No. 16, ⁋⁋ 27–30. Less than six months into a three-year term of supervised release, Defendant
was arrested for unlawfully possessing a firearm. He also possessed methamphetamine when
arrested. ECF No. 16, ⁋⁋ 7–11. See Smith v. United States, 508 U.S. 223, 240 (1993) (“drugs
and guns are a dangerous combination.”). Moreover, and in further violation of his supervised
release conditions (see Smith, No. 1:16-cr-204, ECF No. 74 (Jan. 17, 2017), Standard Condition
of Supervision No. 8), he was in a vehicle with open containers of alcohol. ECF No. 16, ⁋⁋ 7–
11. At the sentencing hearing, the Court acknowledged Defendant’s mental health conditions
but concluded there was no indication he was under diminished capacity when he sat, armed and
possessing narcotics, in the back seat of the Jeep next to another armed felon.
Although Defendant agreed to plead guilty in this case, his statement accepting
responsibility was brief: “I acknowledge the facts in the plea agreement. I made a bad decision.
I was at the wrong place at the wrong time with the wrong people.” ECF No. 16, ⁋ 14.
Defendant’s contrition falls flat against his continued criminality. Less than four months after
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 23 of 26. PageID #: <pageID>

(1:25CR33)
24
pleading guilty, Defendant again obtained an illegal weapon. This time, he used that weapon to
attack and kill another detainee. ECF No. 24. Accordingly, the nature of the underlying offense
and Defendant’s history and characteristics justify an upward variance.
Next, the Court must balance these factors with the need to achieve the four enumerated
sentencing goals in § 3553(a)(2). As discussed at length herein, Defendant’s underlying crime in
this case is serious, in particular because his prior conviction for armed robbery also involved a
firearm. See Smith, 1:16-cr-204, ECF No. 43 (Sept. 19, 2016). Defendant’s conduct before,
during, and after his arrest demonstrates a lack of respect for the law. He violated federal law
and the terms of his supervised release by possessing a loaded firearm and narcotics and
associating with another engaged in criminal activity. See Smith, No. 1:16-cr-204, ECF No. 74
(Jan. 17, 2017), Standard Condition of Supervision No. 8. During the traffic stop, law
enforcement officers twice asked Defendant if he was armed before he admitted that he was
carrying a firearm. ECF No. 16, ⁋ 8–9. Such conduct does not demonstrate respect for the law.
The sentence must provide sufficient deterrence from criminal conduct, which is of
particular concern in this case because Defendant’s recidivism continued during pretrial
detention. Indeed, his violent behavior escalated, resulting in a man’s death. Defendant’s
recidivistic behavior is persistent and carries severe consequences for himself and others. He has
shown little respect for the law—even while in custody—and demonstrated a continuing safety
risk to others and the community.
In addition to the foregoing considerations, § 3553(a)(6) cautions district courts “to avoid
unwarranted sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” The average length of incarceration for similarly situated defendants
(individuals with an offense level 20 and a Criminal History Category III) is 45 months with a
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 24 of 26. PageID #: <pageID>

(1:25CR33)
25
median length of 41 months. But Defendant is not an average, median, or run-of-the-mill
offender. His recidivism, escalating violence, and noncompliance with the law even while in
custody demonstrates that the recommended 41–51 month sentencing guidelines range is
insufficient to fulfill the purposes of sentencing. If Defendant chose not to maintain lawful
behavior while detained and facing a two and a half year sentence, an upward variance is an
appropriate response. As the record reflects, the Court imposed a sentence well below the
statutory maximum. These circumstances provide compelling justification to vary upward, and
the Court concludes that a sufficient, not greater than necessary sentence is satisfied with a 96-
month term of incarceration.
The three-year term of supervised release with certain conditions were also thoughtfully
imposed. They will allow the Court to provided needed services and boundaries to promote
Defendant’s successful reentry.
Defendant’s sentence shall run consecutively to any sentence imposed relating to his
supervised release violation. This is consistent with U.S.S.G. § 5G1.3(d), which provides: “In
any other case involving an undischarged term of imprisonment, the sentence for the instant
offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.”
U.S.S.G. § 5G1.3(d). Furthermore, Application Note 4(C) recommends that sentences for
offenses committed while a defendant is on supervised release should “be imposed consecutively
to the sentence imposed for the revocation.” U.S.S.G. § 5G1.3(d) Application Note 4(C).
Accordingly, Defendant’s sentence shall run consecutively to any sentence imposed for his
supervised release violation relating to Case No. 1:16CR204-JRA
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 25 of 26. PageID #: <pageID>

(1:25CR33)
26
Finally, district courts have discretion to impose federal sentence consecutive to
anticipated state sentences that have not yet been imposed. See Setser v. United States, 566 U.S.
231, 236 (2012). Therefore, Defendant’s sentence shall run consecutively to any state sentence
imposed regarding charges that may be brought against Defendant for the August 31, 2025
assault resulting in Waulk’s death.
IV. 	CONCLUSION
For the reasons set forth on the record during the sentencing hearing and herein, the Court
exercises its discretion to vary upwards. Defendant is sentenced to a term of incarceration of 96
months. Upon release, Defendant shall serve a three-year term of supervised release as to Count
1 of the Indictment, with the mandatory, standard, and special conditions of supervision
imposed.
Defendant’s sentence shall run consecutively to any new term of incarceration imposed
for his supervised release violation in Case No. 1:16CR204-JRA.
The sentence shall also run consecutively to any sentence imposed resulting from charges
that may be brought against Defendant for the August 31, 2025 assault resulting in Waulk’s
death.
The Court waives a fine, concluding that Defendant cannot afford to pay it. A $100.00
special assessment is imposed, and is due immediately.
IT IS SO ORDERED.
December 6, 2025 	/s/ Benita Y. Pearson
Date 	Benita Y. Pearson
United States District Judge
Case: 1:25-cr-00033-BYP Doc #: 32 Filed: 12/06/25 26 of 26. PageID #: <pageID>