The Sixth Circuit on Friday, in United States v. Fleming, condemned a sentencing court's decision to "surprise" the parties by varying upward by five years based on a short Cleveland.com newspaper article published a couple days before sentencing.
Here's what happened:
• Both sides walk into sentencing, expecting a 60-month sentence for a cocaine crime.
• On counsel’s table is a very short (just over 200-word) Cleveland.com article summarizing an Ohio state report about overdose deaths from cocaine mixed with opioids.
• At the start of the hearing, the court says it plans to consider the newspaper article, but doesn’t say how.
• Both sides recommend a 60-month guideline sentence. Neither discusses the article.
• District court varies upward by 5 years, to 120 months, based on the newspaper article.
The Sixth Circuit reverses.
Notably, the defendant’s crime dealt with cocaine alone, not cocaine mixed with opioids. The defendant also contested on appeal the way the newspaper article summarized the state report.
The Sixth Circuit found that it was procedural error – and “plain error” at that – for the judge to base its upward variance on the article without giving the defendant notice. The newspaper article was littered with potential errors, and the court’s procedure deprived the parties of a meaningful way to challenge it as unreliable.
This district judge has a recent history of being reversed and removed from cases, which led to some discussion at oral argument, and in the opinion, about whether this case should be re-assigned to a different judge. Ultimately, the court concluded that the judge will be able to follow its instructions on remand.