Sixth Circuit Remands for Resentencing Based on Erroneous Application of Stolen-Firearm Enhancement

 

In an unpublished, per curiam opinion, a panel of the Sixth Circuit rejected the appellant’s Second Amendment challenge to his § 922(g)(1) conviction, but reversed the sentence on the grounds that the district court erred in applying the stolen-firearm enhancement because it relied on quadruple hearsay in a police report. This opinion is potentially helpful when challenging sentencing enhancements where the government’s proof in support of the enhancement consists solely of police reports, particularly reports containing hearsay statements.

Curtis Euge-Darnell Black was charged with a single count of possessing a firearm as a felon. He unsuccessfully moved to dismiss on the ground that 18 U.S.C. § 922(g)(1) violated the Second Amendment in all its applications and then entered a conditional guilty plea preserving his right to appeal the denial of the motion to dismiss. On appeal, Mr. Black argued that § 922(g)(1) violates the Second Amendment as applied to him. He relied on the Sixth Circuit’s decision in United States v. Williams, 113 F.4^th 637 (6th Cir. 2024), where the court suggested that § 922(g)(1) might be susceptible to an as-applied challenge where the defendant can demonstrate that he is not dangerous. The court held that Mr. Black’s claim failed under plain-error review, citing his past convictions for violent offenses.

The Sixth Circuit held, however, that the government had failed to prove by a preponderance of the evidence that the gun was stolen. At sentencing, the government introduced a police report documenting an interview with the registered owner of the gun at issue in Mr. Black’s case. The owner stated that, three years earlier, he lent the gun to a friend. He later attempted to contact the friend to ask for the gun back but received no response. The owner then contacted a family member of the friend, who told the owner that the gun had been stolen. This police report was the only evidence that the gun was stolen. Over Mr. Black’s objection, the district court applied U.S.S.G. § 2K2.1(b)(4)(A)’s 2-level stolen-firearm enhancement. This produced a guidelines range of 37 to 46 months’ imprisonment. The court imposed a 42-month sentence.

The court held that, in applying the enhancement, the district court violated Sixth Circuit precedents limiting the use of police reports at sentencing. It quoted United States v. Jones, 815 F. App’x 870, 878 (6th Cir. 2020) (“We do not endorse the regular use of police reports as evidence in sentencing determinations.”), and its holding that a district court may rely on information in a police report – including hearsay statements – only if the information has a “minimal indicium of reliability.” The court held that “[t]he unreliable nature of this police report is evident from its multiple layers of hearsay.”

Judge Murphy filed a separate opinion concurring as to the Second Amendment issue but dissenting as to the sentencing issue. He wrote that Mr. Black had forfeited the issue because, despite arguing at sentencing and on appeal that the government had presented insufficient evidence that the gun was stolen, he did not specifically cite the government’s reliance on hearsay evidence as the basis for challenging the enhancement.

Sixth Circuit Holds District Court Went Too Far in Admitting FRE 404(b) Evidence.

Cheyenne Witt tragically died of a morphine overdose after Appellant Jay Sadrinia, her dentist, prescribed her morphine twice in three days, leading her to have almost triple the fatal amount in her blood. A federal grand jury subsequently charged Sadrinia with four counts of illegally distributing controlled substances to Witt without a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and one count of illegally distributing morphine to her resulting her death in violation of 21 U.S.C. § 841(b)(1)(C).

Just twelve days before Sadrinia's trial, the Government filed a notice of "inextricably intertwined and/or Rule 404(b) evidence." Specifically, the Government indicated it intended to introduce testimony from several of his former employees about some of his prior "bad acts," including testimony that he once used another dentist's prescription pad to prescribe opioids while the dentist was out of the office. Although the District Court ruled that the Government's notice was untimely, it ultimately allowed the Government to present testimony from the same former employees during Sadrinia's trial, over his objection. Such evidence included testimony from: (a) Sadrinia's former assistant that he used foul language when he fired her and after she had threatened to report him for malpractice; (b) one of Sadrinia's former colleagues that he had used her prescription pad while she was outside the United States; and (c) his former officer manager that he had used the same colleague's prescription pad and that, when she quit, she warned him he would "kill someone." The District Court overruled Sadrinia's objection, finding that such testimony was "intrinsic" evidence of the crimes charged relevant to his "knowledge and intent." In addition, it did not provide a limiting instruction to the jury for such evidence.

The jury subsequently acquitted Sadrinia on Counts One through Three, but convicted him on Count Four (the initial morphine prescription) and Count 5 (the two morphine prescriptions that resulted in Witt's death. The District Court denied Sadrinia's motion for acquittal or a new trial and sentenced him to 240 months' imprisonment - the mandatory minimum.

On appeal, Sadrinia challenged the sufficiency of the evidence against him, and he alleged the District Court erred in overruling his objection to the introduction of the referenced prior bad acts evidence. In a published opinion, the Sixth Circuit held that the Government presented sufficient evidence to support his convictions on both counts. Citing Sadrinia's 30 years of experience in dentistry, expert testimony that the amount of morphine he prescribed was rarely, if ever, appropriate for pain management in dental patients, and that his prescriptions exceeded the amount permitted by Kentucky regulations, the Court held that a rational jury could have concluded that Sadrinia knew the last prescription he wrote for Witt lacked a legitimate medical purpose. 

Although it found the evidence sufficient to support his convictions, the Court reversed them and remanded his case for a new trial. In doing so, it held that the District Court abused its discretion in admitting intrinsic evidence testimony from his former colleague and employees. It held that, regardless of whether such evidence was relevant, it was not "intrinsically intertwined" with Sadrinia's actions because they were too temporally removed from Witt's death. 

The Court also rejected the Government's argument that the District Court's error was harmless. It noted that the evidence was not sufficiently "overwhelming"  to overcome the error and that the District Court failed to provide a limiting instruction. Additionally, it held that the Government's use of such testimony in its closing arguments only made the error more prejudicial.

FRE 404(b) evidence always poses a risk to the fairness of a defendant's trial. In this case, the Sixth Circuit found that such evidence went too far.  

 

 

Jury’s question was an inquiry about scheduling and not about substantive elements of offenses

         A jury convicted Dwayne Robinson of being a felon in possession of firearms that were found in a car that he had been driving. United States v. Robinson, --- F4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0086p-06.pdf On appeal, he argued that the district court acted improperly by answering a question from the jury without consulting counsel. The court informed the parties about the question before it brought the jury back into the courtroom to announce its verdict. There was no objection to the question and no objection in a post-trial motion, so the plain error test was applied on appeal. Slip Op. at 4.

         The Sixth Circuit determined that Mr. Robinson’s reliance on Fed.R.Crim.Proc. 51 did not provide a path around the plain error test because the Rule requires a party to make an objection even if the claim of error is to some action of the trial court that has already taken place. Since the parties disputed what the note said and the Sixth Circuit had “no idea what the original note said,” the failure to object prevented the district court from taking any remedial action and making an “appropriate record.” Slip Op. at 6.

         The Sixth Circuit viewed the jury’s question as an inquiry about “scheduling information” and not about “substantive elements” of the offenses being tried. Slip Op at 8. In the Court’s words, “When the jurors asked about the next steps if they did not reach a verdict that night, the court simply told them that they would return the next morning to continue deliberating.” Id. Since the inquiry concerned “a mere scheduling matter,” the district court “had no duty to seek counsel’s input.” Id.

        Several other issues were discussed in the opinion. One issue arose when a detective was asked on cross-examination to concede that no eyewitness saw Mr. Robinson with the guns. The detective responded that an eyewitness “saw him with a handgun the day before, but that’s on a different case.” Slip. Op. at 8.

        Prior to trial, the government agreed not to use any evidence about an “ongoing homicide investigation” into Mr. Robinson. Slip Op. at 10. The investigation involved an eyewitness who saw him with a gun. The Sixth Circuit upheld the district court’s ruling that the defense’s cross-examination “opened the door” to the detective’s response. As the Sixth Circuit saw it, the cross-examination “implicated” the ongoing investigation and “would have left a false impression” that no one ever saw Mr. Robinson in possession of a gun. Id. The Court relied on precedent that allows a party to admit evidence in response to a misleading impression created by the other party. Id.    

       Another issue stemmed from a jury instruction. The parties proposed an instruction that Mr. Robinson did not need to own the firearms to possess them. The district court, however, instructed that: “Ownership is irrelevant to the issue of possession.” The Sixth Circuit held there was no plain error under current law and pointed out that Pattern Criminal Jury Instruction 12.01(2)(A) recommends an instruction that the defendant does not have to own the firearm to possess it.

        Mr. Robinson also challenged his 15-year mandatory minimum sentence under the Armed Career Criminal Act. The sentence was based on convictions in 1991, 2013, and 2017. Mr. Robinson argued that the jury had to make the finding that he committed the three crimes on different occasions. While the case was on appeal, Erlinger v. United States, 602 U.S. 821 (2024) was decided. The Sixth Circuit reiterated its earlier conclusion that Erlinger error can be harmless. See United States v. Campbell, 122 F.4th, 630-33 (6th Cir. 2024). In doing so, the Court found that the error was not harmful merely because the statutory maximum of 10 years was increased to 15 years.

 

 

United States v. Simmons - Warrant to Search Drug Trafficker's Home Upheld Under "Continual and Ongoing Operations" Theory

In United States v. Simmons, --- F.4th --- (6th Cir. 2025), the Sixth Circuit upheld the denial of a motion to supress evidence found in a drug trafficker's home.

In April 2022, Grand Rapids police began investigating Lamon Simmons after a confidential informant, who had previously conducted reliable drug buys, identified him as a cocaine dealer.  Over several months, officers arranged controlled buys confirming his drug sales and observed him often traveling between two locations: a suspected stash house on Holly Street and his primary residence on Weatherwood Drive, where he parked his cars and listed his address with federal probation. 

In December 2022, police obtained search warrants for both locations, citing Simmons’s movements and the likelihood that evidence of drug trafficking—such as cash, records, or paraphernalia—would be found in his home.  The searches uncovered guns, ammunition, cash, and various drugs, leading to his indictment on multiple drug and firearm charges. 

Simmons moved to suppress the evidence from his residence, arguing that the warrant lacked probable cause because it failed to establish a direct link between his drug sales and his home.  The district court denied the motion, applying the “continual-and-ongoing-operations” theory, which recognizes that drug traffickers often keep evidence at home, even when sales occur elsewhere.  The court found that the extended surveillance, controlled buys, and officer experience made it reasonable to infer that Simmons’s residence contained evidence of his crimes.  Additionally, even if probable cause was debatable, suppression was unwarranted under the good faith exception.

On appeal, Simmons argued that the warrant lacked probable cause.  The Sixth Circuit disagreed, reaffirming the “continual and ongoing operations” theory.  The Court held that a warrant can be valid even without direct evidence of drug sales at a residence, as long as there is strong evidence linking the home to a trafficker’s ongoing activities.  While simply being a dealer is not enough to justify a search, the Court explained that traffickers running sustained operations are likely to keep drugs, money, or records at home.

The Court found that this connection was supported by multiple controlled buys, Simmons’s frequent travel between locations, and his history as a trafficker.  Citing United States v. Sanders, 106 F.4th 455, 461 (6th Cir. 2024), the Court reiterated that officers do not need to witness drug sales at a residence to establish probable cause.  Instead, a pattern of trafficking activity, combined with a reasonable inference that evidence would be found at home, is sufficient.  Given the controlled buys, informant reports, surveillance, and officer expertise, the Court concluded that the affidavit established a strong enough link to Simmons’s home to justify the search.

Judge Ritz, in a concurring opinion, stated he would have upheld the search solely under the good-faith exception.  While he acknowledged the affidavit may not have been the strongest, he found it detailed enough to justify officers relying on it.  He rejected Simmons’s claim that the affidavit was “bare bones,” noting that it included a reliable informant’s firsthand observations, multiple controlled buys, and an experienced officer’s analysis. 

Split Decision Upholds Conviction for Hobbes Act Extortion and Federal-Program Bribery

In United States v. Sittenfeld, -- F.4th -- (6th Cir. 2025), the Court of Appeals upheld the conviction of Alexander "P.G." Sittenfeld for Hobbes Act extortion and federal-program bribery. Sittenfeld was a candidate for mayor of Cincinnati, running from his seat on the city council. He solicited donations to fund his campaign. One set of donations he solicited from a local developer, Chinedum Ndukwe, seeking create a mixed-use development project at 435 Elm Street in Downtown Cincinnati. The case proceeded to trial. A jury convicted Sittenfeld of counts 3 and 4 of the indictment for Hobbes Act extortion and federal-program bribery. Ndukwe became the target of a separate investigation into public corruption. The FBI then turned Ndukwe into a source used in this case. Through Ndukwe and other undercover agents, many conversations with Sittenfeld referencing the Elm Street property and campaign donations were recorded. The indictment specified one of the undercover agents as the payor of the alleged bribes. When it came time to charge the jury, the parties agreed on jury instructions that broadened the language of the charge to "another person" instead of the named agent.

Sittenfeld challenged his convictions on sufficiency of evidence and constructive amendment of the indictment grounds. The Court of Appeals rejected these challenges. 

Turning to McCormick v. United States, 500 U.S. 257 (1991), and Evans v. United States, 504 U.S. 255
(1992), the Court of Appeals evaluated the sufficiency of evidence supporting Sittenfeld's conviction. To support a conviction, the government must convince a jury beyond reasonable doubt that the elected official received campaign donations in return for an explicit promise or undertaking. An explicit promise need not be reduced to writing or discussed in exact terms expressing "if this then that." Rather, the quid pro quo can be proved by inference as long as an objective observe could surmise that an agreement exists and what the terms of that agreement require. See fn. 8.  The Court of Appeals found the evidence presented at trial supported the jury's finding of an explicit agreement.

Sittenfeld also challenged his conviction for constructive amendment of the indictment by the jury instructions. A constructive amendment is possible "where jury instructions differ from an indictment, even in the absence of varied evidence," such that the effect was to charge the jury on a "separate offense that was not listed in [the] indictment." United States v. Kuehne, 547 F.3d 667, 685 (6th Cir. 2008) (citing United States v. Combs, 369 F.3d 925 (6th Cir. 2004)). But if the instructions differ only in terms of the means for committing the same crime, a defendant must demonstrate prejudice by the jury instructions to prove constructive amendment of the indictment. 

Sittenfeld failed to preserve the issue of constructive amendment for review. The time to object and raise constructive amendment grounds was at the jury instruction conference, before agreeing to the langue the district court would use to instruct the jury. Raising the issue in a post-trial motion was too late. The agreement to the instruction's language did not prevent review under the invited error doctrine because the government also proposed the same language. The Court of Appeals felt this made both parties equally responsible for any potential error. 

The Court of Appeals found that the to-wit clause in Sittenfeld's indictment limited the charges of his conviction to the specific named undercover agent in that clause. The Court went on to state that the instructions were broadened, but no variance in evidence occurred. The Court of Appeals found that the government introduced evidence of up to three separate explicit agreements at trial that involved the named undercover agent in the to-wit clause. 

The ultimate question became whether it is plain error to allow broader jury instructions where the evidence introduced at trial points to multiple distinct corrupt counterparties or if this is a constructive amendment. Based on lack of precedent on this issue related to Hobbes Act extortion and bribery, the Court of Appeals held that no plain error occurred. 

Court Rejects Challenge ACCA Sentence Based on Challenge to Plea Agreement's Factual Basis

In United States v. Short, -- F.4th -- (6th Cir. 2025), the Court of Appeals upheld the district court's finding of guilty and sentencing the defendant under the Armed Career Criminal Act (ACCA). Short was indicted for being a felon in possession of a firearm. "The government then modified the indictment." Short, at page 2. The new indictment included allegations that on four separate occasions Short committed four separate crimes of violence.

 Short challenged his sentence under ACCA by arguing there was no factual basis to accept his plea. His argument relied on the joint factual basis presented to the district court. The joint factual basis did not mention any of his prior convictions for crimes of violence. However, the district court informed Short at his change of plea hearing that he faced the ACCA enhancement to his sentence. Under the ACCA enhancement, Short faced 15 years to life. Without it, he faced a maximum sentence of 10 years. Short acknowledged the ACCA enhancement and stood by his plea. 

At the time of the sentence, Sixth Circuit precedent permitted district courts to find separate occasions on its own. See, e.g., United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022). Not long after Short was sentenced, the Supreme Court of the United States ruled that separate occasions must be found by a jury or admitted by the defendant. Erlinger v. United States, 602 U.S. 821, 834–35 (2024).

At sentencing, the district court had the new indictment alleging the four separate prior crimes of violence, the presentence investigation report chronicling Short's criminal history, and Short's acknowledgment of the enhanced penalties at the plea colloquy to form the factual basis.

The Court of Appeals applied United States v. McCreary–Redd, 475 F.3d 718, reiterating that the written statement of factual basis is not the only way to establish factual basis.

Court Upholds Denial of Motion to Reduce Sentence

 In United States v. Davis-Malone, -- F.4th -- (6th Cir. 2025), the Sixth Circuit upheld the district court's denial of the defendant's motion to reduce his sentence based on retroactive guidelines changes after Amendment 821 took effect. The district court rejected the defendant's petition, which was supported by the government, to reduce his sentence using a form order and including only 3 sentences explaining the decision. The same judge presided over the sentencing and the motion to reduce sentence.

After the defendant twice sold oxycodone pills to an undercover agent while on probation for credit card fraud, the government obtained a warrant to search the defendant's car. "Inside the car, they found a handgun that he had made fully automatic and loaded with 23 rounds. The agents also uncovered over 100 oxycodone pills and 200 grams of marijuana hidden in a secret compartment." Davis-Malone, at page 2. The defendant pleaded guilty to possessing a firearm as a felon. His recommended sentencing guideline range was calculated to be 70 to 87 months. The defendant received a sentence of only 60 months--10 months below the guideline range. 

Davis-Malone filed a motion to reduce his sentence pursuant to Amendment 821. After applying the amendment, his sentencing range would be 57 to 71 months. The district court rejected the joint recommendation to reduce Davis-Malone's sentence to 57 months because the original sentence falls within the low end of the new guideline range. 

The Court of Appeals upheld this decision, in part, because the same judge that sentenced Davis-Malone ruled on the motion to reduce sentence. The Court of Appeals found that the district court adequately explained its reasoning to impose a below-guidelines sentence initially, the district court--in particular the same judge as before--does not need to conduct an exhaustive analysis of the same sentencing factors as before. The Court of Appeals followed United States v. Brim, 661 F. App’x 879 (6th Cir. 2016), where the underlying facts are materially similar.

Gun & Drug Convictions Reversed Based on Erroneous Admission of Defendant’s Proffer Statements.

In United States v. Grogan, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reversed the defendant’s convictions for possession with intent to distribute fentanyl, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of a firearm due to the erroneous admission of various inculpatory statements made by the defendant during a proffer.

Law enforcement suspected that Juan Grogan was involved in a shooting and a kidnapping. When they tried to arrest him, he fled. Agents impounded the car he had been driving and found a gun and fentanyl. He was arrested shortly thereafter and agreed to speak with investigators. He signed a proffer agreement allowing the government to use his statements to cross-examine him if he gave inconsistent testimony at trial.

The case ultimately went to trial and, against the advice of counsel, Mr. Grogan testified. Much of his testimony consisted of arguments about the insufficiency of the government’s evidence. He repeatedly invoked the Fifth Amendment during his cross-examination. Then, over defense objections, the government presented testimony about various inculpatory statements Mr. Grogan made during the proffer.

On appeal, the defense argued that the government could not introduce his proffers at trial because Mr. Grogan did not testify inconsistently or present evidence or arguments that contradicted his proffer. The Sixth Circuit held that Mr. Grogan’s invocation of the Fifth Amendment was not an inconsistent statement as contemplated by the proffer agreement, observing that no inferences can be legitimately drawn from invoking the Fifth Amendment and that “a defendant refusal to testify has no factual content that could contradict a purportedly different factual statement.”

The government argued that, questioning the credibility of government witnesses during his trial testimony, Mr. Grogan contradicted his earlier proffer statements where he admitted having a gun and selling drugs and that the inconsistent proffer statements were therefore admissible under the proffer agreement. The Sixth Circuit held that questioning whether the government can prove that you did something doesn’t amount to a denial that you did it and concluded the admission of all but one of the proffer statements was error.

The error was not harmless because, without Mr. Grogan’s admission that the drugs were his, the government’s evidence of constructive possession was not overwhelming. Mr. Grogan did not have exclusive control of the car where the drugs and gun were found, having lent the car to friends a week earlier. The drugs were not in plain view, and none of the government’s witnesses saw Mr. Grogan in actual possession of the contraband. The government’s emphasis of Mr. Grogan’s drug-ownership confession in its closing argument made it further unlikely that the error was harmless beyond a reasonable doubt.

Exceptional Conduct Not Required for Early Termination of Supervised Release.

 In United States v. Hale, --- F.4th --- (6th Cir. 2025), the Sixth Circuit vacated a denial of early termination of supervised release because the prior Sixth Circuit opinions relied on by the district court incorrectly held that early termination is only warranted upon a showing of exceptionally good behavior. Mr. Hale was on ten years’ supervised release in connection with his conviction for violating the Sex Offender Registration and Notification Act. About four-and-a-half years into his supervised release term, Mr. Hale moved for early termination with no opposition from the government. In support, he offered letters from his state probation officer, therapist, and long-time friend attesting to his compliance. Although the district court praised Mr. Hale for his “positive behavior,” it cited United States v. Atkin, 38 F. App’x 196, 198 (6th Cir. 2002) for the proposition that “[e]arly termination of supervised release is a discretionary decision that is only warranted in cases where the defendant shows changed circumstances – such as exceptionally good behavior,” and held that Mr. Hale’s conduct did not satisfy that high standard.

The Sixth Circuit agreed with Mr. Hale that Atkin and subsequent unpublished decisions misstated the standard set out in 18 U.S.C. § 3583(e)(1), which requires the district court to determine whether early termination “is warranted by the conduct of the defendant released and the interest of justice,” in addition to certain § 3553 factors, and does not require exceptional conduct as a prerequisite to early termination. It thus remanded the case for reconsideration under the proper legal standard.

A Prior Drug Conviction Constitutes a Career Offender Predicate if, Under the Categorical Approach, It Qualified as a “Controlled Substance Offense” at the Time of Conviction.

In United States v. Drake, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reaffirmed its holding from United States v. Clark, 46 F.4th 404 (6th Cir. 2022), that, when determining whether a prior drug conviction constitutes a “controlled substance offense” counting towards a defendant’s designation as a “career offender” under §§ 4B1.1 and 4B1.2 of the Sentencing Guidelines, a court must consult the drug schedules in place at the time of the prior conviction, rather that those in place at the time of the instant federal sentencing.

Clark involved a defendant sentenced for a drug crime as a career offender based on prior Tennessee marijuana convictions. In the time between the prior marijuana convictions and the federal drug offense, Tennessee and the federal government amended their respective drug schedules to narrow the definition of “marijuana” by excluding hemp. The Sixth Circuit held that Mr. Clark was properly sentenced as a “career offender” because hemp was classified as “marijuana” at the time of Mr. Clark’s prior convictions, and that the subsequent change in the law was irrelevant.

Drake involved essentially the same issue. He was sentenced as a “career offender” for possession with intent to distribute fentanyl, cocaine, and methamphetamine and received a 200-month prison term. One of the predicate convictions was an Ohio conviction for marijuana trafficking from 2016. In 2016, Ohio’s definition of “marijuana” included hemp, but that was no longer true at the time of his federal sentencing.

Mr. Drake argued that the Clark opinion had been undermined by the U.S. Supreme Court’s recent decision in Brown v. United States, 602 U.S. 101 (2024). Although that case held that the definition of “serious drug offense” in the Armed Career Criminal Act incorporated the time-of-conviction approach, the Court also observed that changes in law are treated differently under the ACCA than under the Guidelines. In rejecting Mr. Brown’s argument that it should follow the ordinary practice of applying the most up-to-date version of the Guidelines Manual, the Court observed that, while 18 U.S.C. § 3553(a)(4)(A)(ii) requires courts to apply the Guidelines “in effect on the date the defendant is sentenced,” the ACCA contains no similar instruction.

The Sixth Circuit found, however, that Clark continues to apply after Brown because the requirement that courts use the current version of the Guidelines Manual doesn’t answer the question of what the term “controlled substance” in § 4B1.2 of that current manual means. It held that the text and purpose of § 4B1.2 supports a time-of-conviction approach and that the district court correctly treated Mr. Drake as a “career offender.”

 

An above guideline sentence in a revocation proceeding is upheld where it is based on the past conduct of a defendant who has significant mental health issues.  

Mario Adams was charged with being a felon in possession of a firearm. He had a long history of mental health issues and was twice found incompetent to stand trial on the firearm charge. He pleaded guilty to the charge after a third psychiatric evaluation determined he was competent. He was sentenced to 87 months imprisonment and a 36-month term of supervised release. United States v. Adams, --- F.4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0275p-06.pdf 

 Mr. Adams was alleged to have violated supervised release by missing drug tests. The violation report referred to his continuing struggles with mental health and substance abuse and it also noted that he met the criteria for multiple mental health conditions. Further violations resulted in a 4-month placement in a halfway house, but he was removed from it due to his behavior.

 Ongoing violations of supervised release caused the district court to impose a new 90-day stay at the halfway house and a new 30-month term of supervised release. Mr. Adams showed significant improvement at the halfway house but left the facility shortly before the end of the 90 days. Probation officers could not locate him and had no contact with him for about a year. During that time, he was convicted in state court of felony assault and breaking and entering but he was not sentenced to incarceration.

 The district court revoked his supervised release based on the state crimes, leaving the halfway house, and not checking in with probation officers. The guideline range was 8 – 14 months but he was sentenced to the statutory maximum of 24 months. On appeal, Mr. Adams argued that his sentence was procedurally unreasonable because the district court used his mental illness to justify an upward variance.  

 The Sixth Circuit concluded that it did not have to decide the “important questions” Mr. Adams raised about whether an upward variance can be imposed to account for the danger a defendant may pose because of his mental health issues. Slip Op. at 9. The Court found that the sentence could be affirmed based on Mr. Adams’s conduct, leaving the halfway house, absconding from supervision, and committing new offenses especially one that involved violence. Although “some of his conduct may have stemmed, at least in part, from mental illness … a district court may rely on a defendant’s past conduct in determining the appropriate sentence.” Id.

 The Sixth Circuit noted that the district court reviewed Mr. Adam’s past conduct including prior supervised release violations and attempted treatment interventions, and it previously treated his mental health issues as a mitigating factor. As the Sixth Circuit saw it, the district court was not treating Mr. Adams’s mental health issues as an aggravating factor. Instead, the district court concluded that his mental illness could no longer be treated as a mitigating factor because of his recent conduct. Slip Op. at 10. In the Sixth Circuit’s view, the district court believed that a longer sentence was necessary “despite [Mr.] Adams’s mental health, not because of it …” Id. at 11 (emphasis original).

    One other point is worth noting. At the revocation sentencing, the district court made “passing references” to the earlier competency evaluation which explained the multiple diagnoses of Mr. Adams. Slip Op. at 11. Although the Sixth Circuit did not consider those references to be the basis of the sentencing decision, the Court cautioned against “reliance on statements by medical professionals in a competency evaluation as a basis for a sentencing aggravator …” Id. The Court pointed out that “competency reports are generally not meant to assess dangerousness, or any § 3553(a) factor.” Id.