United States v. Marcus Fleming
894 F.3d 764
6th Cir.2018Background
- Fleming pleaded guilty to possession with intent to distribute ~989g of cocaine; Guidelines offense level 21, CHC II, yielding a Guidelines range of 41–51 months but statutory minimum of 60 months applied.
- At sentencing, the district court handed counsel a two-day-old Cleveland.com article summarizing an Ohio report on rising overdose deaths—mostly from fentanyl/carfentanil—and noted high rates of cocaine deaths involving opioids.
- The article (and the underlying state report) were not provided in advance; the court did not explain its intended use of the article until after counsel’s arguments and Fleming’s allocution.
- The district court relied heavily on the article’s opioid-related statistics to impose a five-year upward variance, doubling Fleming’s sentence to 120 months.
- Fleming objected at sentencing to the basis for the upward variance and lack of advance notice; on appeal he argued the sentence was procedurally (and alternatively substantively) unreasonable.
- The Sixth Circuit vacated and remanded, holding the district court’s surprise reliance on the article deprived Fleming of a meaningful opportunity to contest information central to an increased sentence.
Issues
| Issue | Plaintiff's Argument (Fleming) | Defendant's Argument (Gov’t) | Held |
|---|---|---|---|
| Whether the district court’s reliance on a late-provided news summary of an Ohio report (about opioid-related overdose deaths) to justify an upward variance was procedurally unreasonable | The article was a surprise, prejudiced defense by denying meaningful opportunity to challenge accuracy/relevance, and so the variance was procedurally improper | Court gave notice at start; Fleming could have sought continuance; Irizarry permits variances without prior notice that a variance is possible | Vacated and remanded: reliance on unexpected, central information without adequate notice was procedurally unreasonable (plain error standard met) |
| Whether defense preserved objection or plain-error review applies | Counsel made objections to variance basis, issuance, and lack of advance notice — arguably preserved | Appellee urges plain-error review because objection was not specific | Court found resolution unnecessary — Fleming prevails under either plain-error or abuse-of-discretion review |
| Whether opioid-related community-harm evidence was a foreseeable, garden-variety sentencing consideration | Fleming: opioids were not implicated in his offense; article’s opioid focus was unexpected and not inherently relevant to cocaine-only conviction | Gov’t: district courts may consider community harm and could rely on the article | Held: community harm can be relevant, but opioid-specific data here were not an anticipated consideration and thus were a surprise when heavily relied upon |
| Whether reassignment on remand was warranted | Fleming: judge’s comments suggest predisposition favoring harsher sentence, justify reassignment | Gov’t: no basis for extraordinary reassignment | Held: reassignment denied — record does not show judge unable to set aside prior views or that reassignment is required to preserve appearance of justice |
Key Cases Cited
- United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015) (surprise reliance on unexpected materials at sentencing can make a variance procedurally unreasonable)
- United States v. Bostic, 371 F.3d 865 (6th Cir. 2004) (describing preservation questions and benefit of asking the district court for rulings to preserve plain-error review)
- Irizarry v. United States, 553 U.S. 708 (2008) (district court need not give advance notice that a variance is possible, but does not excuse surprise about specific issues relied upon)
- United States v. Wilson, 614 F.3d 219 (6th Cir. 2010) (plain-error test for sentencing review)
- United States v. Robinson, 892 F.3d 209 (6th Cir. 2018) (district court may consider opioid-specific harms where the offense involves opioids)