United States v. Fleming, 17-3954

• Decision Date: 29 June 2018
• Docket Number: No. 17-3954,17-3954
• Citation: 894 F.3d 764
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marcus D. FLEMING, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

894 F.3d 764

UNITED STATES of America, Plaintiff–Appellee,

v.Marcus D. FLEMING, Defendant–Appellant.

No. 17-3954

United States Court of Appeals, Sixth Circuit.

Argued: June 13, 2018

Decided and Filed: June 29, 2018

ARGUED: Eric C. Nemecek, FRIEDMAN & NEMECEK, L.L.C., Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Eric C. Nemecek, FRIEDMAN & NEMECEK, L.L.C., Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: KEITH, ROGERS, and KETHLEDGE, Circuit Judges.

ROGERS, Circuit Judge.

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment. At his sentencing hearing, the district court doubled that. It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl. Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing. Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed. Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

During a July 2016 traffic stop in Canton, Ohio, police found 989 grams of cocaine in a knapsack on the rear floorboard of Fleming’s car. Fleming subsequently pleaded 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, the applicable offense level for possession of at least 500 grams but less than 2 kilograms of cocaine. See USSG § 2D1.1(c)(8). The Government agreed to a three-level reduction for acceptance of responsibility, see USSG § 3E1.1(a), (b), bringing his offense level down to 21.

Initially, there was some thought that Fleming might qualify for the career-offender enhancement. See USSG § 4B1.1. His presentence report listed nine prior convictions, two of which might have counted as career-offender predicates. Had Fleming been classified as a career offender, his Guidelines range would have been 188 to 235 months’ imprisonment (roughly 15 to 20 years). However, he was ultimately determined not to be a career offender. As it turned out, the two potential predicate convictions constituted a single sentence for Guidelines purposes, because they were not separated by an intervening arrest and Fleming was sentenced for both offenses on the same day. See USSG § 4A1.2(a)(2).

Without the career-offender enhancement, Fleming had a total offense level of 21 and a criminal history category of II. For an offender with these characteristics, the Guidelines prescribe a sentencing range of 41 to 51 months’ imprisonment. However, because the statutory minimum for Fleming’s offense is 60 months, see 21 U.S.C. § 841(b)(1)(B)(ii)(II), the final presentence report calculated his Guidelines term of imprisonment as 60 months (5 years). See USSG § 5G1.1(b). 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.

Fleming’s sentencing hearing took place on September 1, 2017. At the beginning of the hearing, the district court provided the parties with copies of a local news article that had been published online on Cleveland.com two days before the sentencing hearing. The article, which was a little over 200 words in length, 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. In particular, it noted that state officials were "attributing the surge [in overdose deaths] to stronger drugs, including fentanyl and the emergence of a similar drug, carfentanil." 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. The district court was also careful to observe that it could not—and did not—take into account Fleming’s close brush with career-offender status in its decision to vary upward.

After announcing Fleming’s ten-year sentence, the district court asked whether the parties had any additional arguments or objections, the question necessary to obtain the benefit of plain-error review of unraised objections under United States v. Bostic , 371 F.3d 865, 872–73 (6th Cir. 2004). 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.

Fleming now appeals, arguing that his sentence was both procedurally and substantively unreasonable. See generally United States v. Bolds , 511 F.3d 568, 578–81 (6th Cir. 2007) (explaining procedural and substantive reasonableness review). In particular, he contends that his sentence was procedurally unreasonable because the district court varied upward based on extraneous information about opioid overdose fatalities in the Cleveland.com 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. This argument has merit.

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." United States v. Coppenger , 775 F.3d 799, 804 (6th Cir. 2015) (quoting United States v. Rossi , 422 F. App’x 425, 432 (6th Cir. 2011) ); see also United States v. Bunkley , No. 17-3318, ––– F.3d ––––, ––––, 2018 WL 1960503, at *3 (6th Cir. Apr. 26, 2018). 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. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

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.

Additionally, we have noted that "the weight the court ultimately assigned to [unexpected] considerations" may contribute to the surprise. Coppenger , 775 F.3d at 805. Here, Fleming must have been surprised by the weight the district court gave the Cleveland.com article in the sentencing decision. The district court was quite clear that information in the article was crucial to its decision to vary upward by five years. In particular, the court emphasized that the article was "[i]n large part ... some indication of why long, lengthy sentences are necessary to try and deter this type of activity." The district court’s consideration of statistics regarding mixed cocaine-opioid overdose...