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Sixth Circuit: Procedural Error and Plain Error for Judge to ‘Surprise’ Defendant and Impose an Upward Variance

This drug sentencing case is noted for its holding that a sentence imposed by the district court (Judge John Adams of the N.D.Ohio) was procedurally unreasonable because the sentence had been doubled above the Guideline Sentencing Range (GSR) based in large part on the district court’s reliance on a local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids. The article was presented to the parties by Judge Adams for the very first time at the sentencing hearing; and the defendant was not notified before the hearing that the district court planned to consider the article or the issues it addressed. Because that procedure denied the defendant a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was deemed to be both procedurally unreasonable and plain error.

Marcus Fleming was arrested in Ohio during a 2016 traffic stop after the police found 989 grams of cocaine in a knapsack on the rear floorboard of his car. Fleming subsequently pled guilty to one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Fleming’s plea agreement stipulated that his base offense level would be 24; and his resulting GSR was 41-51 months imprisonment. However, because the statutory minimum for Fleming’s offense was 60 months, the final presentence report calculated his Guidelines term of imprisonment as 60 months. Fleming filed a sentencing memorandum in which he asked for a within-Guidelines sentence of 60 months’ imprisonment. The Government did not file a sentencing memorandum.

At his ensuing sentencing hearing, the district court sua sponte provided the parties with copies of a local news article that had been published online two days earlier, which was a little over 200 words in length. The article purported to summarize the findings of a recent Ohio state report documenting an increase in drug overdose deaths in the state. The bulk of the article focused on overdoses due to potent opioids. The article mentioned cocaine only briefly and, even then, in connection with opioids. The article observed that cocaine overdoses were on the rise, but also that “[t]here are indications that cocaine is increasingly being used with fentanyl and other opiates,” and that 80.2% of all cocaine overdose deaths in 2016 also involved an opiate.

Before the sentencing hearing, there had been no suggestion that an upward variance was under consideration. As the hearing began, the district court informed the parties that it would consider the recently provided article in imposing Fleming’s sentence, but the court did not expressly state that the article would be considered for the purpose of imposing an upward variance. Fleming’s counsel then presented argument, after which Fleming was permitted to allocute. The Government made its own argument, during which it recommended a within-Guidelines sentence of 60 months. Neither of the parties discussed the article, or the community harm caused by cocaine or opioids.

After considering the 18 U.S.C. § 3553(a) sentencing factors, the district court varied upward and imposed a sentence of 120 months’ imprisonment. The district court did so in large part based on its concern about the increase in overdose deaths reflected in the article. In the court’s view, the Guidelines were not “sufficient to address the kind of issues that we’re now having with this type of trafficking in these large amounts of cocaine.” After quoting extensively from the article, the district court explained that, “on its face, one kilogram of cocaine in the face of the numerous deaths that we are dealing with in the state, in this country, makes it certain in my mind that long prison times are appropriate.” The district court explicitly said that its decision to double Fleming’s sentence was based on the article, explaining that the article was
“[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.

After announcing Fleming’s ten-year sentence, the district court asked whether the parties had any additional arguments or objections. Fleming’s counsel responded: “Defense counsel would just make a general objection to the basis for the upward variance, the issuance of the upward variance itself, and the fact that counsel didn’t receive any advance notice as to the Court’s intention to consider a variance upward.” The district court responded that advance notice of the court’s intent to vary is not required, and that the court otherwise stood by its earlier recitation of the § 3553(a) factors.

On appeal, Fleming argued that his sentence was both procedurally and substantively unreasonable. In particular, he contended that the district court varied upward based on extraneous information about opioid overdose fatalities in the online news article, without providing advance notice of the court’s intent to do so, such that Fleming was subjected to an unfair surprise and denied a meaningful opportunity to address that information at sentencing.

The Sixth Circuit agreed and held Fleming’s sentence “was rendered in a procedurally unreasonable manner.” It wrote in part:

“A sentence is procedurally unreasonable when ‘the facts or issues on which the district court relied to impose a variance came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.’ Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation.

“The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids. Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

“Fleming was prejudiced by this surprise because his counsel did not have a meaningful opportunity to contest the veracity or relevance of the information contained in the Cleveland.com article. The court provided the article to counsel only at the outset of the hearing. This did not allow counsel time to digest the information in the article—let alone to review the underlying state report on which the article was based, and which was never provided to the parties—so as to be able to contest meaningfully its conclusions and relevance during the hearing.”

Based on those findings, Fleming’s sentence was vacated, and the case was remanded for resentencing consistent with the Court’s opinion. See: United States v. Fleming, 894 F.3d 764 (6th Cir. 2018).

This article originally appeared in the June 2018 issue of Punch & Jurists and is reprinted with permission, with minor edits. Copyright, Punch & Jurists.

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