United States v. Marcus Fleming
Opinion
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 *767 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
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
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 *768 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
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
,
Fleming now appeals, arguing that his sentence was both procedurally and substantively unreasonable.
See generally
United States v. Bolds
,
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
,
The district court's consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, *769 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
,
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.
As to the accuracy of the article's conclusions, Fleming argues that the article contains false and misleading statements. He contends that the article misconstrued the findings of the underlying state report, and that the state report does not fairly permit the conclusion, drawn by the article, that every person who had cocaine detected in their system when they overdosed died
of a cocaine overdose
(as opposed to an opioid overdose that occurred while cocaine was also present). He further notes that he was unable to point out these issues to the district court, both because there was not enough time to review the article, and, more fundamentally, because the district court did not provide copies of the report itself. Additionally, Fleming argues that if he had been given an opportunity to review the article in advance, he might have been able to convince the district court that it was of limited relevance, given that it mostly dealt with an increase in overdose deaths caused by fentanyl and carfentanil (exceptionally potent opioids), and noted only secondarily that more people were dying from mixed use of cocaine plus those powerful opioids. We need not resolve these questions regarding the article's accuracy and relevance. The point here is that these questions should be directed to the district court in the first instance, but the district court's failure to provide Fleming with notice of its intent to rely on the article, as in
Coppenger
,
Moreover, although the article was distributed to the parties at the start of the hearing, Fleming's counsel did not know
*770
for certain how the district court planned to use it until after counsel had already made his argument. Indeed, the court's entire discussion of the issues raised in the article came after Fleming's argument and allocution were complete. By waiting until after Fleming's opportunity to speak had passed, the district court made it even more likely that Fleming would never address this key information on which the five-year upward variance was based. A sentencing hearing is meant to provide an opportunity for "full adversary testing of the issues relevant to a Guidelines sentence."
United States v. Christman
,
Of course, a district court's consideration of the community harm caused by drug offenses will not necessarily come as a surprise. The harm that a drug causes to the public may be a relevant and expected consideration in a sentencing hearing for a conviction related to that drug.
See, e.g.
,
United States v. Johnson
,
It is true that, while a district court must give notice before it can impose a
departure
,
see
Fed. R. Crim. P. 32(h), the same is not true for a
variance
under
Irizarry
,
The Government contends that Fleming should have asked for a continuance once he realized the district court intended to rely on information he was not prepared to address. As a general matter, it is good practice for defense counsel to request a continuance once it becomes evident that the district court plans to consider unexpected information, and district courts should "consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial."
Irizarry
,
The Government further argues that we should review Fleming's procedural-unreasonableness claim only for plain error. Fleming disputes this contention, arguing instead that the abuse-of-discretion standard applies. In response to the district court's Bostic question, Fleming's counsel stated three objections: (1) "a general objection to the basis for the upward variance"; (2) an objection to "the issuance of the upward variance itself"; and (3) an objection to "the fact that counsel didn't receive any advance notice as to the Court's intention to consider a variance upward." These objections were arguably sufficient to preserve Fleming's procedural-unreasonableness claim for appellate review. Ultimately, however, we need not resolve this dispute, because Fleming prevails under either standard of review.
This is because his claim succeeds even under the more restrictive plain-error review, and thus necessarily meets the abuse-of-discretion standard. To demonstrate plain error, Fleming must show "(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings."
See
United States v. Wilson
,
Fleming also contends that his sentence was substantively unreasonable. However, "an appellate court is required to assess the substantive reasonableness of a sentence only if the sentence is procedurally sound."
Wilson
,
Finally, Fleming asks that his case be reassigned to a different judge on remand, but the record here does not justify that. We consider three factors to determine whether reassignment is warranted:
(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;
(2) whether reassignment is advisable to preserve the appearance of justice; and
(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Solomon v. United States
,
For these reasons, we vacate Fleming's sentence and remand for resentencing consistent with this opinion.
In a citation of supplemental authority pursuant to Federal Rule of Appellate Procedure 28(j), the Government argues that
Robinson
compels a different result here. But
Robinson
is clearly distinguishable, because there the defendant challenged only the substantive reasonableness of his sentence, not its procedural reasonableness, and the
Robinson
defendant pleaded guilty to possession of fentanyl with intent to distribute, making opioid overdoses a foreseeable issue there (unlike in this cocaine case). The Government's citation of
United States v. Ford
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Marcus D. FLEMING, Defendant-Appellant.
- Cited By
- 10 cases
- Status
- Published