United States v. Fleming, No. 17-3954

Fleming was convicted of possessing cocaine with intent to distribute.  His total offense level was 21, and his criminal history category was II.  He was thought to be a career offender, but his priors did not qualify. His range of punishment was 41 to 51 months, but his mandatory minimum was 60 months.  


At the beginning of the hearing the district court provided the parties with copies of a local news article that had been published on about an Ohio State report documenting an increase in overdose deaths in the state.  The article focused on opiod overdoses mainly, only mentioning cocaine briefly and only in connection with opioids. The article was a little over 200 words. The article observed that “ there 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.  


There was no suggestion that there would be a variance at the beginning of the hearing or that the court was considering one.  Both the government and the defense made arguments and asked a sentence of 60 months. Neither side mentioned the article or community harm by opioids.  


The court varied upward and imposed a sentence of 120 months in prison.  The court said that “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.’”  The district court said that the article was “[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.” The court made no reference to Fleming’s near-status as a career offender.  Fleming appealed stating that his sentence was procedurally and substantively unreasonable.


The court noted that a sentence can be 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.”  The court also said that the reliance on information from the article from was a surprise and prejudicial to Fleming’s sentencing presentation and as such the sentence was procedurally unreasonable. Fleming’s case was possession of cocaine, not the opioids that were discussed in the article.  Plus there was no evidence of opioids in his case.


The court also noted that “the weight the court ultimately assigned to [unexpected] considerations” may contribute to the surprise.  In this case, the court clearly stated that the article was important to the decision. Fleming’s inability to contest the veracity or relevance was part of the prejudice:  He was not able to test the veracity or relevance of the information in the article because it was given to him at the beginning of the hearing.


Further, although this was presented to the parties at the beginning of the sentencing hearing they didn’t know how it was going to be used until after counsel made his argument.  


The government claimed that the plain error doctrine applied to this case.  Plain error is “(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.”


The court stated that the case was error for the reasons already stated.  The court stated that it was obvious because he district court should have realized that the article contained information that the parties might reasonably not have anticipated would be relevant. The district court should also have been aware that the structure of the sentencing hearing—in which the parties were given the article only at the start of the hearing, the underlying state report was not provided at all, and the district court did not explain why the article was relevant until after the parties’ arguments—would prevent Fleming from commenting on that information in a meaningful way.”  


The court also said that Fleming’s substantial rights were affected.  “A sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, she would have received a more favorable sentence.”  If the judge had given notice of the court’s intent to use the, article then counsel would have been able to persuade that the article was unreliable.


The Court determined that the error “affected the fairness, integrity, or public reputation of the judicial proceedings.”  because “Fleming may serve an additional five years in prison based on potentially unreliable and extraneous information that was interjected into the proceedings in a way that ensured no meaningful adversarial testing.”  


Because the court determined that the case was procedurally unreasonable by a plain error standard the court determined that it was not necessary to consider substantive unreasonableness.  


Fleming also asked that the case be reassigned to a different judge on remand but the court indicated that was not justified in the record.  The court uses 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.


Fleming said that reassignment of the case to a different judge was necessary because the judge stated that Fleming had good fortune in avoiding career offender status and that showed that the judge was predisposed to giving Fleming a higher sentence.  However, the district judge also noted that he could not and would not consider Fleming’s “close call” in escaping the career offender enhancement against him. And while Fleming also points out that the Judge indicated the strong likelihood that Fleming would qualify as a career offender, that was before it was determined that he was not a career offender.  Thus the Circuit court declined to hold that Fleming’s case should be reassigned to a different Judge.


The Sixth Circuit vacated the sentence and remanded the case for resentencing.  No. 17-3954

In United States v. Evans, Nos. 16-10310, 16-10311, the Ninth Circuit vacated terms of supervised release handed down by the Northern District of California because they were unconstitutionally vague.

Evans was charged with a probation violation as well as felon in possession of a firearm and ammunition. Evans was sentenced to two years for the supervised release violation to be ran consecutively with 57 months of imprisonment for the felon in possession charge. This was in addition to three years of supervised release subject to both standard and special conditions of supervised release.

Evans argued on appeal that several conditions of supervised release were unconstitutionally vague. “A condition of supervised release violates due process ‘if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”

On appeal, Evans challenged a condition preventing him from associating with “any member of the Down Below Gang: “The defendant shall have no connection whatsoever with the Down Below Gang or any other gang. If he is found to be in the company of such individuals or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.”

The Ninth Circuit said that the district court did not abuse its discretion in imposing the condition as he had been linked to that gang and its members. His prior supervised release conditions prohibited him from entering the district where the Down Below Gang congregated.  The condition was found not to be procedurally unreasonable. Although the court did not explain its reasoning for this condition, there was enough information in the record as to what the Down Below Gang was and Evans’ connection to them for the condition to stand. Similarly, the requirement that he have “no connection whatsoever with the Down Below Gang or any other gang” is not vague and overbroad because the court construed there to be a mens rea requirement to that condition. However the condition also said “If [Evans] is found to be in the company of [gang members] or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.” The Ninth Circuit found this to be inappropriate because it removes the requirement that the government prove mens rea in a future revocation proceeding. As such, this sentence was found to be overbroad and was sent back to the district court to be removed.

Similarly, three standard conditions were also found to be vague. Standard Condition 4 requires Evans to “support his or her dependents and meet other family responsibilities.” Evans challenged this saying that “meet other family responsibilities” is too vague and does not alert him as to what he is supposed to be doing. The court noted that the United States Sentencing Guidelines Manual 5D1.3(d)(1) omitted the phrase “meet other family responsibilities.”

Standard Condition 5 requires Evans to “work regularly at a lawful occupation unless excused

by the probation officer for schooling, training, or other acceptable reasons.” Evans challenged the word “regularly,” arguing that it has no clear definition and renders the condition unconstitutionally vague. The Court found that there was no meaning for the word “regularly” in this context. The amended condition in 5D1.3(c)(7) requires thirty hours per week. Or it could mean the same amount each week or month. The court found that this did not give him enough information and he could end up finding what this means in a hearing. The court found it to be vague and remanded it.

Standard condition 13 requires Evans “[a]s directed by the probation officer,” to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics….” Again, Evans said that there was no indication of what “personal history,” “characteristics,” “risks” or “third parties” means. The government argued that he could talk to his probation officer, but the court noted that a vague condition of supervised release can’t be cured by giving the probation officer “unfettered power of interpretation.” Again, the Sentencing Commission amended the guideline to remove the phrase “personal history or characteristics” and “to clarify that a probation officer may only require a defendant to notify specific persons of specific risks that the defendant poses to those persons.”

The Ninth Circuit Reversed, 16-10310, 16-10311

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