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United States v. Fleming

United States Court of Appeals, Sixth Circuit

June 29, 2018

United States of America, Plaintiff-Appellee,
v.
Marcus D. Fleming, Defendant-Appellant.

          Argued: June 13, 2018

          Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:17-cr-00081-1-John R. Adams, District Judge.

         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.

          OPINION

          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 ยง 5G1.1(b). Fleming filed a sentencing ...


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