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Sixth Circuit Vacates Sentence Because District Court Relied on Uncharged Shooting Allegation for Upward Departure from Sentencing Guidelines Range

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit vacated the sentence of Andre D. Hatcher, Jr. because the district court relied on an uncharged shooting allegation as a reason for imposing a sentence that was an upward departure from the Sentencing Guidelines range.

In March 2017, Hatcher escaped from the Oriana House Residential Reentry Center (“Oriana”) where he was serving a 46-month sentence for felon in possession of a firearm. On April 13, 2017, Hatcher was shot in the head. While administering CPR, an officer observed a gun in Hatcher’s waistband. Hatcher was transported to a hospital, but he left soon afterward and was not apprehended until he was shot again in May 2018.

Hatcher later pleaded guilty to one count of escape and one count of felon in possession of a firearm and ammunition.

Approximately two weeks before the sentencing hearing, the district court gave notice of a possible upward departure from the advisory Sentencing Guidelines range. The court’s notice made no mention of a shooting incident involving Hatcher as being a factor for increasing his sentence.

At sentencing, defense counsel objected to any upward variance from the Guidelines range of 41 to 51 months’ imprisonment. Counsel argued that Hatcher possessed the firearm for protection due, in part, to multiple incidents of being shot and stabbed. The Government countered that shell casings discovered from a shooting that occurred on April 10, 2017 — three days before Hatcher was shot on April 13th — matched those in the firearm Hatcher possessed. The prosecutor stated, “I don’t know the specifics of what happened,” but it “suggest[s] a possibility that the defendant was involved in a shooting three days prior and perhaps his victimization on the day of the offense was in retaliation for that. I don’t know.”

Prior to imposing sentence, the district court said that “almost immediately” after Hatcher escaped from Oriana, he got “involved again in violent conduct either on his own behalf or in interaction with others resulting in his own injury.” The district court then stated “for those reasons,” the upward variance was necessary and imposed a sentence of 72 months in prison.

On appeal, Hatcher argued, inter alia, that the district court’s reliance on his alleged involvement in the April 10th shooting was surprising and prejudicial and that a preponderance of the evidence did not support the district court’s reliance on his alleged involvement in the shooting. Because Hatcher’s counsel made only a general objection to the upward departure, the Sixth Circuit reviewed for plain error. United States v. Simmons, 587 F.3d 348 (6th Cir. 2009). A plain error is an error that was obvious and affected the defendant’s substantial rights, and it should be corrected if it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Olano, 507 U.S. 725 (1993).

If a sentencing court bases its sentence on erroneous information, an error occurs. United States v. Fleming, 894 F.3d 764 (6th Cir. 2018). If a defendant is not provided this information before sentencing and given an opportunity to contest it, he is “surprised and prejudiced.” Id. A sentencing error affects substantial rights if there is a reasonable probability that, absent the error, the defendant would have received a more lenient sentence. United States v. Wilson, 614 F.3d 219 (6th Cir. 2010). While a sentencing court may consider a defendant’s conduct when fashioning a sentence — even conduct for an offense of which he was acquitted — the conduct must be supported by a preponderance of the evidence. United States v. Watts, 519 U.S. 148 (1997).

The Sixth Circuit concluded that, based on the district court’s statement, the sentence imposed was based on erroneous information. Consequently, a clear error occurred. And it affected Hatcher’s substantial rights because the district court imposed a sentence that was an upward departure of 21 months from the highest end of his Guidelines range, i.e., there was a reasonable probability that, but for the error, Hatcher would have received a more lenient sentence. Furthermore, because Hatcher was not permitted to challenge the Government’s assertion that he was involved in the April 10 shooting, he was surprised and prejudiced. Finally, because the Government’s comments revealed it lacked evidence to tie Hatcher to the April 10th shooting, the district court’s reliance was not based on a preponderance of evidence.

Accordingly, the Court vacated Hatcher’s sentence and remanded for resentencing consistent with the Court’s opinion. See: United States v. Hatcher, 947 F.3d 383 (6th Cir. 2020). 

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United States v. Hatcher



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