Beyond the “Heartland”: Sixth Circuit Affirms Robust Discretion for Upward Variances, Upholds §2D1.1(b)(13) “Fake Percs” Enhancement, and Permits Supervised-Release Payment of Prior Restitution

Beyond the “Heartland”: Sixth Circuit Affirms Robust Discretion for Upward Variances, Upholds §2D1.1(b)(13) “Fake Percs” Enhancement, and Permits Supervised-Release Payment of Prior Restitution

Introduction

In a consolidated, unpublished decision arising out of a large-scale methamphetamine and fentanyl manufacturing and distribution conspiracy in Akron, Ohio, the U.S. Court of Appeals for the Sixth Circuit affirmed six separate sentencing decisions for six different defendants: Ronnie Radovic, Corey Wright, Algyn Kerney, Idris Jackson, Alfred Sanders, and Nasser Kahook. The panel (Judges Batchelder, Clay, and Bloomekatz) addressed a range of recurring federal sentencing issues, from the scope of a district court’s discretion to impose upward variances based on criminal history and unscored conduct, to the sufficiency of circumstantial evidence for the fentanyl “misrepresentation/marketing” enhancement in U.S.S.G. § 2D1.1(b)(13), to the permissibility of a supervised-release condition requiring payment toward a prior federal restitution obligation.

The core themes are familiar but consequential: (1) district courts may vary upward when the criminal history and offense conduct show heightened risks of recidivism and danger to the public, even if those histories are already reflected in the Guidelines; (2) no advance “notice” is required for variances (as opposed to departures), provided the factual basis does not surprise the defendant and appears in the PSR or record; (3) leadership and drug-premises enhancements will be upheld when supported by the record, notwithstanding plea negotiations that did not contemplate them; (4) § 2D1.1(b)(13) applies where fentanyl pills are marketed as legitimate prescription pills, and circumstantial evidence—including the defendant’s own admissions—can suffice; and (5) as a special condition of supervised release, a court may require payments toward an earlier, valid restitution order.

Although the opinion is “Not Recommended for Publication,” it consolidates and applies well-established Sixth Circuit and Supreme Court principles with practical guidance for practitioners on both sides of the aisle.

Summary of the Opinion

  • Radovic (No. 24-3308): Guidelines range 30–37 months (OL 13, CHC V). Upward variance to 57 months and 8 years’ supervised release affirmed. The court emphasized violent, persistent criminal history, uncounted conduct, offending while on state supervision, and specific/general deterrence. Double-counting concerns did not preclude reliance on criminal history.
  • Wright (No. 24-3309): Guidelines range 30–37 months (OL 15, CHC IV). Upward variance to 57 months affirmed. Procedural challenges failed: (i) no prior notice of a variance is required so long as there is no “surprise” and the basis appears in the PSR; (ii) plea stipulations do not bind the court. Substantive reasonableness challenge failed given Wright’s violent criminal history (including a homicide at age 17) and ineffectiveness of prior sentences to deter.
  • Kerney (No. 24-3364): Four-level enhancement under U.S.S.G. § 2D1.1(b)(13) for knowingly misrepresenting/marketing fentanyl as another substance (fake Percocet) affirmed. The court found sufficient evidence by a preponderance, including defendant’s own admissions (“fake percs”), M-30 stamping, and cutting fentanyl with powdered sugar to mimic color. Total sentence 211 months (including mandatory consecutive 60 months under § 924(c)) affirmed.
  • Jackson (No. 24-3389): Guidelines range 37–46 months (OL 19, CHC IV). Upward variance to 51 months affirmed. No notice required; argument inadequately developed and, in all events, contradicted by law. Substantive variance justified by unique criminal history (multiple DUIs—including a hit-and-run shortly after another DUI arrest—drug possession, failures to pay child support) evidencing danger and recidivism.
  • Sanders (No. 24-3400): Plea valid and appellate waiver enforceable. Two-level drug-premises enhancement barred from appeal by waiver. Four-level leadership enhancement under § 3B1.1(a) upheld based on control, record-keeping of debts, resupply at “the office,” direction to cook crack, and subordinates referring to themselves as his “soldiers.” Sentence of 168 months (Counts 1–7) plus consecutive 60 months (Count 8, § 924(c)) affirmed.
  • Kahook (No. 24-3438): Guidelines range 46–57 months (OL 21, CHC III). Upward variance to 78 months affirmed. The court emphasized two prior federal sentences that failed to deter, extensive uncounted conduct, and unpaid restitution on a prior federal case. Special condition of supervised release requiring monthly payments toward the prior restitution judgment upheld as reasonably related to deterrence and public protection and consistent with Sixth Circuit and sister-circuit authority.

Analysis

Precedents Cited and Their Influence

  • Gall v. United States, 552 U.S. 38 (2007): Establishes abuse-of-discretion review for sentences and rejects any presumption of unreasonableness for outside-Guidelines sentences, while requiring a “sufficiently compelling” justification for substantial variances. Heavily informs the variance analysis across all six appeals.
  • Kimbrough v. United States, 552 U.S. 85 (2007): Introduces the “heartland” concept—when a case falls outside the mine-run of cases contemplated by the Guidelines, variance can be appropriate. The panel repeatedly invokes this to uphold upward variances where criminal history and uncounted conduct signal elevated risks.
  • United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020): Clarifies that outside-Guidelines sentences require compelling reasons and warrant closer review, yet appellate courts still defer to reasoned discretion. Applied in upholding the variances for Radovic, Jackson, and Kahook.
  • United States v. Lee, 974 F.3d 670 (6th Cir. 2020): Permits reliance on criminal history both within the Guidelines calculation and again under § 3553(a) (sometimes called “double counting”) where justified by deterrence and protection-of-the-public concerns. Central to Radovic, Jackson, and Kahook.
  • United States v. Morris, 71 F.4th 475 (6th Cir. 2023); United States v. Sanbria-Bueno, 549 F. App’x 434 (6th Cir. 2013): Affirm that courts may give significant weight to criminal history in applying § 3553(a), even when history influenced the Guidelines range. Supports the upward variances.
  • United States v. Boucher, 937 F.3d 702 (6th Cir. 2019): When a district court explains why a case is not mine-run, its assessment “attracts greatest respect.” Reinforces deference to the variances here.
  • United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015): No prior notice is required for variances (as distinct from departures), but a court may not spring genuine factual surprises. Used to reject notice challenges by Wright and Jackson; reliance on PSR material avoided any surprise.
  • United States v. Axline, 93 F.4th 1002 (6th Cir. 2024); United States v. Parrish, 915 F.3d 1043 (6th Cir. 2019); United States v. Vowell, 516 F.3d 503 (6th Cir. 2008): Recite substantive reasonableness standards (proportionality, sufficiency, § 3553(a) purposes) alongside abuse-of-discretion review—bedrock for all six appeals.
  • United States v. Smith, 474 F.3d 888 (6th Cir. 2007); United States v. Bridgewater, 479 F.3d 439 (6th Cir. 2007); United States v. Martin, 751 F. App’x 873 (6th Cir. 2018); United States v. Sexton, 512 F.3d 326 (6th Cir. 2008): District courts need not give equal weight to all § 3553(a) factors and need only explain the chosen sentence. Applied throughout to sustain the district court’s weighing.
  • United States v. Bolds, 511 F.3d 568 (6th Cir. 2007): Frames procedural reasonableness review; informs Wright’s and Jackson’s procedural challenges.
  • United States v. Simpson, 138 F.4th 438 (6th Cir. 2025): States the plain-error standard where no contemporaneous objection is made (applied to Wright’s notice argument).
  • United States v. Hinton, 2021 WL 5505498 (6th Cir. Nov. 24, 2021) (unpublished); United States v. Rossi, 422 F. App’x 425 (6th Cir. 2011): No surprise exists where the basis for a variance comes from the PSR and the defendant had a chance to respond; supports the notice rulings for Wright and Jackson.
  • Brady v. United States, 397 U.S. 742 (1970): Guilty pleas must be knowing, intelligent, and voluntary. Applied to uphold Sanders’s plea.
  • United States v. Mitchell, 135 F.4th 507 (6th Cir. 2025): Rule 11 canvassing of rights; used to assess (and reject) Sanders’s argument about plea withdrawal advisements.
  • United States v. Smith, 960 F.3d 883 (6th Cir. 2020): Enforces appellate waivers when knowingly and voluntarily made; used to bar Sanders’s challenge to the drug-premises enhancement.
  • Enhancement standards: United States v. Taylor, 85 F.4th 386 (6th Cir. 2023); United States v. Terry, 83 F.4th 1039 (6th Cir. 2023); United States v. House, 872 F.3d 748 (6th Cir. 2017); United States v. Yagar, 404 F.3d 967 (6th Cir. 2005); United States v. Stubblefield, 682 F.3d 502 (6th Cir. 2012): Clear-error review of facts, de novo for legal questions; government’s preponderance burden. Applied to the § 2D1.1(b)(13) issue (Kerney) and § 3B1.1 leadership (Sanders).
  • United States v. Allen, 2022 WL 7980905 (6th Cir. Oct. 14, 2022) (unpublished): Circumstantial evidence can establish the mens rea for § 2D1.1(b)(13). Central to Kerney.
  • Anderson v. City of Bessemer City, 470 U.S. 564 (1985): Where two permissible views of the evidence exist, the factfinder’s choice cannot be clearly erroneous. Applied to affirm Kerney’s enhancement.
  • Leadership standards: U.S.S.G. § 3B1.1(a) & cmt. 4; United States v. Shanklin, 924 F.3d 905 (6th Cir. 2019); United States v. Castilla-Lugo, 699 F.3d 454 (6th Cir. 2012): The court considers a non-exhaustive list of factors; not all need be present. Applied to Sanders.
  • Supervised release conditions: 18 U.S.C. § 3583(d); United States v. Carter, 463 F.3d 526 (6th Cir. 2006); United States v. Barcus, 892 F.3d 228 (6th Cir. 2018): Two-dimensional review (procedural and substantive); conditions must be reasonably related to § 3553(a)(1), (a)(2)(B)-(D), involve no greater deprivation than necessary, and be consistent with policy statements. Applied to sustain the prior-restitution payment condition for Kahook.
  • United States v. May, 568 F.3d 597 (6th Cir. 2009): Upholds a special condition requiring payments on a pre-existing financial obligation as reasonably related to protecting the public and discouraging recidivism. Anchors the affirmance of the restitution-payment condition here.
  • Sister-circuit support: United States v. Gill, 523 F.3d 107 (2d Cir. 2008); United States v. Love, 431 F.3d 477 (5th Cir. 2005); United States v. Mitchell, 429 F.3d 952 (10th Cir. 2005): A special condition may require payments toward an existing restitution judgment so long as it does not impose a new restitution obligation. Cited to reinforce the supervised-release condition for Kahook.
  • Other useful citations: United States v. Gates, 48 F.4th 463 (6th Cir. 2022) (courts need not weigh factors equally); United States v. Houston, 529 F.3d 743 (6th Cir. 2008) (appellate courts do not reweigh § 3553(a) factors); Doe v. Michigan State Univ., 989 F.3d 418 (6th Cir. 2021) (waiver by underdeveloped argument); United States v. Hensel, 220 F. App’x 428 (6th Cir. 2007) (failure to develop argument).

Legal Reasoning: Defendant-by-Defendant

I. Radovic — Upward variance and “double counting” of criminal history

The district court calculated a correct advisory range (30–37 months) and varied upward to 57 months, relying on § 3553(a) factors: the violent and persistent nature of Radovic’s criminal history; recidivism while on state supervision; unscored conduct not reflected in his criminal history; and the seriousness of the drug-conspiracy offense. The Sixth Circuit applied abuse-of-discretion review, starting with the Guidelines and asking whether the degree of variance was supported by a “sufficiently compelling” justification (Gall; Perez-Rodriguez).

Two pillars sustain the variance. First, the court may revisit criminal history under § 3553(a) even if the Guidelines already incorporate it (Morris; Sanbria-Bueno; Lee). Second, the case fell outside the “heartland” given the risk profile, inviting deference (Kimbrough; Boucher). The panel also rejected the argument that the violent history had no meaningful tie to the drug offense, noting multiple prior drug convictions (including trafficking) and the broader principle that a uniquely problematic history warrants enhanced deterrence (Lee).

II. Wright — No notice required for variances; plea stipulations are non-binding

Wright launched procedural and substantive challenges. On notice, the panel reviewed for plain error (Simpson) and rejected the claim because (i) Sixth Circuit law does not require prior notice of an upward variance (Coppenger), and (ii) there was no “surprise”; the court relied on PSR facts Wright had reviewed (Hinton; Rossi). Wright’s argument that varying beyond the stipulated range “negated” the plea also failed: sentencing stipulations do not bind the court absent a Rule 11(c)(1)(C) agreement—here, the court explicitly warned Wright that it could impose a higher sentence (Robbins; general Rule 11 principles).

Substantively, the variance to 57 months was justified by Wright’s violent and persistent record (including a homicide at 17), the ineffectiveness of prior incarceration to deter, and public-safety needs. The district court was not required to weigh all § 3553(a) factors equally (Gates), and the appellate court declined to reweigh them (Houston). A supposed “implicit promise” of leniency if he stayed out of trouble pre-sentencing was correctly characterized as a caution, not a commitment (Robbins).

III. Kerney — The § 2D1.1(b)(13) “fake pills” enhancement and circumstantial proof

The four-level enhancement for knowingly misrepresenting or marketing fentanyl as another substance (here, counterfeit Percocet) turned on whether the record established the requisite mens rea. Applying clear-error review to facts and de novo to legal conclusions (Terry; Taylor; House), with a preponderance burden on the government (Yagar; Stubblefield), the panel affirmed the enhancement because:

  • Kerney admitted the pills were “fake percs,”
  • they were stamped “M-30,” mimicking legitimate Percocet,
  • he “cut” fentanyl with powdered sugar to produce the desired color, and
  • he admitted he was selling the pills.

Direct evidence of completed sales of the specific pills was unnecessary; circumstantial evidence can establish intent to market or represent fentanyl as another drug (Allen). Under Anderson v. Bessemer City, where two views are permissible, the district court’s choice cannot be deemed clearly erroneous.

With the enhancement and other components in place, the 151-month term on the grouped counts plus the mandatory consecutive 60 months under § 924(c) (Count 20) yielded a 211-month total—affirmed as procedurally sound and substantively justified by history, deterrence, and the risks created by fentanyl and firearms.

IV. Jackson — A modest upward variance tied to unique risk profile

Jackson’s one-level variance (to 51 months from a 37–46-month range) was affirmed. The notice argument was waived for inadequate development (Hensel; Doe v. MSU) and would fail anyway under Coppenger. On substance, the district court reasonably found Jackson’s combination of DUI-related conduct (including a hit-and-run two weeks after a prior DUI arrest), a 2022 drug possession, multiple failures to pay child support, and juvenile history to be outside the “heartland” for a mine-run drug case (Kimbrough; Boucher), justifying an increase to protect the public and deter recidivism (Lee; Perez-Rodriguez).

V. Sanders — Enforcing appeal waivers; leadership enhancement under § 3B1.1(a)

Sanders’s plea was knowingly and voluntarily entered (Brady; Mitchell), and the appellate waiver barred a challenge to the agreed drug-premises enhancement (Smith 2020). However, the waiver did not foreclose review of a four-level leadership enhancement not contemplated by the plea and litigated below. The court assessed the non-exhaustive § 3B1.1(a) factors (Shanklin; Castilla-Lugo) and found ample evidence that Sanders organized/led an “otherwise extensive” conspiracy with five or more participants:

  • He kept ledgers of amounts owed, demanded payments, and resupplied at his residence (“the office”),
  • directed at least one co-conspirator to manufacture crack cocaine, and
  • his subordinates referred to themselves as his “soldiers.”

Even without proof of recruitment or a larger personal profit share—factors the court is not required to find in every case—the record supported the enhancement. The ultimate sentence (168 months on Counts 1–7 plus the mandatory 60 months on § 924(c), Count 8) reflected additional reductions for acceptance and substantial assistance and was affirmed.

VI. Kahook — Substantial upward variance; supervised-release condition to pay prior restitution

The district court varied upward (from 46–57 months to 63–78 months) and imposed 78 months based on (1) two prior within-Guidelines federal sentences (46 and 51 months) that did not deter, (2) substantial uncounted conduct, and (3) long-standing nonpayment of more than $300,000 in restitution from a prior money laundering conviction—reflecting a pattern of disregarding legal obligations. The panel deemed the case outside the Guidelines “heartland” and upheld the variance under Gall, Perez-Rodriguez, Kimbrough, and Lee. While the opinion once references a “four-level” variance, the described range shift reflects a three-level increase; either way, the justification was “sufficiently compelling.”

On conditions of supervised release, the court reviewed for abuse of discretion under § 3583(d), Carter, and Barcus. The requirement that Kahook pay a minimum monthly amount toward his extant restitution judgment was:

  • reasonably related to deterrence and public protection (§ 3553(a)(2)(B)–(D)),
  • no greater deprivation than necessary, and
  • consistent with policy statements and Sixth Circuit precedent (May).

The condition did not impose a new restitution obligation for the instant offense; it leveraged supervised release to promote compliance with a preexisting judgment. Sister-circuit authority (Gill, Love, Mitchell) aligned with this approach. The challenge under Church failed because that case addressed a different question (restitution to third-party payers in the instant case).

Impact and Practical Implications

  • Upward variances remain highly defensible when grounded in recidivism and public-safety concerns. This opinion underscores that district courts may give heavy weight to criminal history—even “double counting” it—where specific/general deterrence and protection of the public are paramount. Defense counsel should prepare robust mitigation on history, post-offense rehabilitation, and tailored reentry plans to counter recidivism narratives.
  • No notice is required for variances; the PSR is the fulcrum. If the factual basis appears in the PSR, defendants cannot claim “surprise.” Timely factual objections and clarifications to the PSR are essential to preserve issues.
  • “Fake pill” prosecutions face meaningful exposure under § 2D1.1(b)(13). Admissions (e.g., “fake percs”), pill stamping (M-30), and cosmetic manipulation (e.g., sugar to color fentanyl) can satisfy the enhancement’s “marketed/misrepresented” element by circumstantial proof. Sellers should expect the enhancement even without documented completed sales of the specific pills.
  • Leadership findings do not require every factor. Organizational control, decision-making authority, and directing others can suffice without proof of recruitment or a bigger profit share. Government should develop the record on ledgers, directives, resupply patterns, and language of subordination (“soldiers”).
  • Plea stipulations and joint recommendations do not bind the court. Even when both parties oppose an enhancement (as with Sanders’s leadership role), the court retains independent authority to find and apply it based on the record. Appellate waivers will be enforced to their terms.
  • Supervised release may be used to enforce prior restitution obligations. Courts can require payments toward an existing restitution judgment as a special condition, advancing deterrence and public protection, so long as they do not impose a new restitution award in the new case.
  • Unpublished but instructive. While not precedential, the opinion synthesizes settled Sixth Circuit law into a practical map for litigating upward variances, enhancements, and supervised-release conditions.

Complex Concepts Simplified

  • Substantive vs. Procedural Reasonableness: Procedural reasonableness concerns the steps the court took (correct Guidelines calculation, ruling on objections, explaining the sentence). Substantive reasonableness asks whether the length and type of sentence fit the defendant and offense, in light of § 3553(a), and are not greater than necessary.
  • Upward Variance: A sentence above the advisory Guidelines range based on statutory factors (e.g., deterrence, protection of the public). Not a “departure” under the Guidelines; no pre-sentencing “notice” is required in the Sixth Circuit if the basis is not a surprise.
  • “Double Counting” Criminal History: Considering criminal history in both the Guidelines and again under § 3553(a). Permissible when used to address deterrence and safety concerns not fully captured by the Guidelines.
  • “Mine-run” vs. “Heartland” Cases: “Mine-run” or “heartland” cases are those the Guidelines were designed to address in the ordinary course. Cases with unusual risk factors or history may fall outside this heartland, making variances more appropriate.
  • PSR (Presentence Investigation Report): A comprehensive report prepared by Probation that includes offense details, criminal history, and recommendations. Courts frequently rely on it; defendants must object to inaccuracies to avoid waiver and claims of “surprise.”
  • Safety Valve: A statutory/Guildelines mechanism allowing certain lower-level, non-violent drug offenders to receive reduced sentences if they meet specific criteria and truthfully provide information.
  • Leadership Enhancement (§ 3B1.1): Adds levels if the defendant organized/led a criminal activity with 5+ participants or “otherwise extensive.” Factors include decision-making authority, planning, control, recruitment, and scope.
  • Drug-Premises Enhancement (§ 2D1.1(b)(12)): Adds levels if premises were maintained for manufacturing or distributing drugs.
  • Fentanyl “Misrepresentation/Marketing” Enhancement (§ 2D1.1(b)(13)): Adds four levels if fentanyl is knowingly marketed or represented as another substance (e.g., counterfeit Percocet). Proof can be circumstantial and include defendant admissions and pill markings.
  • Plain Error: An appellate standard applied when an argument was not raised below. Requires showing (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
  • Special Conditions of Supervised Release: Tailored obligations (e.g., treatment, payment plans) that must be reasonably related to § 3553(a) goals, involve no greater liberty deprivation than necessary, and align with policy statements. They can require payments on existing restitution judgments.
  • Offense Level (OL) and Criminal History Category (CHC): Two axes of the Sentencing Table producing an advisory range. Courts may vary from that range based on § 3553(a).

Conclusion

The Sixth Circuit’s consolidated affirmance showcases the breadth of district courts’ discretion to tailor sentences above the advisory Guidelines when defendants’ records and conduct demonstrate elevated risks of recidivism and dangers to the community. Across six defendants, the panel sustained upward variances rooted in specific and general deterrence and public-protection rationales; validated application of the fentanyl “fake pills” enhancement based on circumstantial evidence and defendant admissions; reinforced that plea stipulations do not bind the sentencing court (and appellate waivers will be enforced to their terms); confirmed that leadership need not be proven with every § 3B1.1 factor; and approved a supervised-release condition requiring payments toward a prior restitution judgment.

The decision ultimately offers a practical blueprint: when the record shows a “uniquely problematic criminal history,” ineffective prior sentences, and unscored conduct, a sentence outside the “heartland” will generally command deference if the court explains its rationale with reference to § 3553(a). For defense counsel, the opinion underscores the importance of building a record—through PSR objections, mitigation, and targeted argument—to counteract recidivism narratives and to anticipate enhancements in counterfeit-pill and leadership cases. For prosecutors and probation, it affirms established pathways to justify variances and special supervised-release conditions that advance deterrence and protect the public.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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