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Sixth Circuit Reverses 60-Month Upward Variance Sentence Based on News Article Provided to Parties by Court at Beginning of Sentencing Hearing

by Matt Clarke 

The U.S. Court of Appeals for the Sixth Circuit held that an Ohio federal district court erred when it doubled a defendant’s cocaine-possession sentence from the recommended 60 months to 120 months based on an online news article on the increase in drug overdose deaths in Ohio, primarily due to the introduction of powerful opiates such as fentanyl and carfentanil. 

Marcus Fleming pleaded guilty to possessing about 2 pounds of cocaine with intent to distribute. The U.S. Sentencing Guidelines prescribe a range of 41 to 51 months, but the statutory minimum for the offense is 60 months. As a result, both his pre-sentence report and the defense’s sentencing memorandum recommended and requested a 60-month sentence. The Government did not file a sentencing memorandum. 

At the beginning of the sentencing hearing, the court provided the parties with a copy of a local news article published on Cleveland.com two days earlier. The article was a little over 200 words and summarized the findings of a report by the state documenting an increase in drug overdose deaths in Ohio, focusing on deaths caused by potent opioids. The article mentioned that cocaine overdose deaths were increasing, but that there were indications that it was “increasingly being used with fentanyl and other opioids” and “80.2% of all cocaine overdose deaths in 2016 also involved an opiate.” 

As the hearing started, the judge announced the article would be considered in imposing Fleming’s sentence but did not mention an upward variance. After defense counsel presented his argument and Fleming allocuted, the Government presented arguments and recommended a within-Guidelines 60-month sentence. Neither the defense nor the Government discussed the article. 

The court then imposed a 120-month sentence, explicitly stating it did so largely due to concerns about the increase in drug overdose deaths reported in the article. Fleming’s attorney objected to the basis for the variance and lack of advance notice that an upward variance was being considered. The objections were overruled, and Fleming appealed, aided by Cleveland attorney Eric C. Nemecek. 

The Sixth Circuit framed the legal question at issue in this case as follows: “whether a district court must provide notice of the specific issues it plans to consider in imposing a variance if those issues will come as a surprise to the parties.” It ruled that notice is required.

The Court noted that the district court’s reliance on the mixed cocaine-opioid overdose deaths reported in the article was a surprise because defense counsel had no way of knowing, prior to the sentencing hearing, that opioids were relevant to the case. Providing a copy of the article at the outset of the hearing “did not allow counsel time to digest the information in the article—let alone 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.” Furthermore, the court didn’t begin to discuss the issues raised in the article until after defense counsel presented its argument and Fleming completed his allocution, thereby making it even less likely that Fleming and his counsel would address the information on which the upward variance was based. 

This, the Court held, “was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.” 

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

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