Clarifying the Fentanyl “Misrepresentation/Marketing” Enhancement: Sixth Circuit Defines “Knowingly Misrepresented” and “Knowingly Marketed” under U.S.S.G. § 2D1.1(b)(13)

Case: United States v. Daniel Matthews; United States v. Markel Levail Livingston (consolidated)
Court: U.S. Court of Appeals for the Sixth Circuit
Date: October 17, 2025 (Recommended for Publication)
Panel: Judges Nalbandian, Mathis (author), and Ritz

Introduction

In this published decision, the Sixth Circuit affirms sentences imposed on two defendants—Daniel Matthews and Markel Livingston—who participated in a fentanyl and methamphetamine distribution network in the Lexington, Kentucky area. The opinion breaks new ground in the Circuit by construing, in detail, the language of the Sentencing Guidelines’ four-level enhancement for fentanyl disguised as another drug, U.S.S.G. § 2D1.1(b)(13)(A). Specifically, the court defines the scope of two key phrases—“knowingly misrepresented” and “knowingly marketed”—and explains the mens rea and conduct necessary to trigger the enhancement.

The core issues on appeal were:

Whether the district court correctly applied § 2D1.1(b)(13)(A) to enhance each defendant’s offense level based on disguised fentanyl pills;
For Livingston only: whether his counsel rendered ineffective assistance at sentencing; whether the district court erred in denying a downward departure for diminished capacity under § 5K2.13; and whether the court improperly imposed a supervised-release condition requiring random searches of electronic devices.

The court affirms across the board, using traditional interpretive tools to clarify what “knowingly misrepresented” and “knowingly marketed” mean in this Guideline, and applying familiar standards of review to reject the defendants’ additional challenges.

Summary of the Opinion

The Sixth Circuit holds:

U.S.S.G. § 2D1.1(b)(13)(A) applies when a defendant either “knowingly misrepresents” fentanyl as another substance or “knowingly markets” fentanyl as another substance.
“Knowingly” requires awareness that the substance contains fentanyl (drawing on the Model Penal Code and Black’s Law definitions of knowledge).
“Misrepresentation” entails a false or misleading assertion, typically through spoken or written words, about the substance’s contents—mere silence will not do.
“Marketing” encompasses selling or advertising a product as something else; selling fentanyl pills that are pressed to look like oxycodone qualifies when the seller knows they contain fentanyl.
For Matthews, the court upholds application of the enhancement under the “misrepresented” prong, relying (under plain-error review) on a cooperating witness’s statement that Matthews described fentanyl pills to a buyer as “Percocet 30 milligram pills.”
For Livingston, the court upholds the enhancement under the “marketed” prong because he knowingly sold large volumes of fentanyl pills made to look like oxycodone, creating foreseeable risk to downstream buyers. The fact that an initial purchaser may have known the pills contained fentanyl does not defeat the enhancement.
Livingston’s ineffective-assistance claim is left for a § 2255 proceeding because the record is undeveloped as to counsel’s reasons and potential prejudice.
The denial of a downward departure under § 5K2.13 is unreviewable because the district court recognized its authority to depart but elected not to; in any event, the within-Guidelines sentence is presumptively reasonable.
The special supervised-release condition permitting random searches of Livingston’s electronic devices is affirmed under plain-error review; the district court’s stated public-protection concerns sufficed to justify the condition.

Analysis

Precedents Cited and How They Shaped the Decision

Gall v. United States, 552 U.S. 38 (2007): Framed the procedural reasonableness inquiry: proper Guidelines calculation, advisory treatment of Guidelines, consideration of § 3553(a) factors, reliance on non-clearly-erroneous facts, and adequate explanation. The Sixth Circuit applied the abuse-of-discretion framework announced in Gall.
United States v. Jones, 81 F.4th 591 (6th Cir. 2023): Confirmed de novo review for legal interpretations of the Guidelines and clear-error review for factual findings; reinforced the court’s textualist approach, resorting to other interpretive tools only if the text does not admit a conclusive answer.
United States v. Histed, 93 F.4th 948 (6th Cir. 2024): Restated the “definite and firm conviction” standard for clear error in factual findings.
Holguin-Hernandez v. United States, 589 U.S. 169 (2020) and Greer v. United States, 593 U.S. 503 (2021): Provided the structure for plain-error review of unpreserved arguments.
United States v. Ashrafkhan, 129 F.4th 980 (6th Cir. 2025): Confirmed that traditional statutory-interpretation tools apply to the Guidelines; the court leaned on ordinary meaning, textual context, and structure.
United States v. Nicolescu, 17 F.4th 706 (6th Cir. 2021) and United States v. Sands, 948 F.3d 709 (6th Cir. 2020): Supported reliance on ordinary meaning and dictionary definitions for undefined Guideline terms.
United States v. Georgia, 279 F.3d 384 (6th Cir. 2002): Endorsed use of the Model Penal Code to define “knowingly,” grounding the mens rea requirement in awareness of the nature of conduct or attendant circumstances.
Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995): Supplied the ordinary meaning of “marketing” as holding forth for sale and preparatory promotional activities; the court applied this meaning to § 2D1.1(b)(13).
Restatement (Second) of Contracts § 159 and related definitions in Black’s Law Dictionary and the Oxford English Dictionary: Informed the court’s conclusion that a “misrepresentation” is a false or misleading assertion—commonly spoken or written—about a fact.
United States v. Armstrong, 920 F.3d 395 (6th Cir. 2019): Established the low “indicia of reliability” threshold for reliance on hearsay at sentencing; corroboration is required only for unidentified informants. This supported the district court’s reliance on an identified cooperator’s statement regarding Matthews’s representations.
United States v. Wiley, 122 F.4th 725 (8th Cir. 2024): Parallel authority affirming application of the enhancement where the defendant advertised fentanyl-laced pills as Percocet; the Sixth Circuit’s analysis aligns with this inter-circuit understanding.
United States v. Radovic, 2025 WL 2622369 (6th Cir. Sept. 11, 2025): A recent Sixth Circuit decision, cited in support, where selling fentanyl pills made to resemble Percocet justified the enhancement.
United States v. Olano, 507 U.S. 725 (1993); United States v. Wells, 519 U.S. 482 (1997); United States v. Montgomery, 998 F.3d 693 (6th Cir. 2021); United States v. Akridge, 62 F.4th 258 (6th Cir. 2023): Together frame the doctrines of waiver and invited error—central to disposing of Livingston’s knowledge argument given counsel’s concession— and the limited, rare use of plain-error review to correct invited error.
United States v. Hynes, 467 F.3d 951 (6th Cir. 2006); United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006); United States v. Martinez, 430 F.3d 317 (6th Cir. 2005); Massaro v. United States, 538 U.S. 500 (2003): Set the default rule that ineffective-assistance claims should be raised in § 2255 proceedings, not on direct appeal, unless the record is adequately developed.
United States v. Madden, 515 F.3d 601 (6th Cir. 2008) and United States v. Muchow, 924 F.3d 272 (6th Cir. 2019): Madden: denials of downward departures are unreviewable absent a mistaken belief about authority; Muchow: within-Guidelines sentences are presumptively reasonable.
United States v. Zobel, 696 F.3d 558 (6th Cir. 2012): Requires the district court to state reasons for imposing special supervised-release conditions and recognizes that a court’s § 3553(a) discussion can suffice to justify such conditions. The panel used Zobel to uphold the electronic-device search condition for Livingston.
U.S.S.G. Supp. to App. C, amend. 807 (2018): The Guidelines amendment creating the enhancement explains its rationale: disguised fentanyl products pose acute risks to buyers who do not know they are purchasing fentanyl—a rationale the panel expressly invoked to reject the “initial buyer’s knowledge” argument.

Legal Reasoning and Application

The court begins with text and ordinary meaning. Because § 2D1.1(b)(13)(A) does not define “knowingly,” “misrepresented,” or “marketed,” the panel uses standard interpretive tools:

“Knowingly” is anchored in the Model Penal Code: awareness of the nature of conduct or attendant circumstances (i.e., that the substance contains fentanyl).
“Misrepresentation” is a false or misleading assertion about a fact, commonly communicated through words.
“Marketing” is the act of holding forth for sale, including sales and promotional activity.

Two doctrinal refinements flow from this analysis:

Misrepresentation requires words. The panel states that “without a false or misleading assertion—through written or spoken words—about the contents of the substance, there can be no misrepresentation.” This narrows the misrepresentation prong to situations involving explicit statements or communications, as opposed to mere silence or nonverbal cues.
Marketing is broader; sales of disguised fentanyl qualify. Knowing sales of fentanyl pills pressed to look like oxycodone constitute “marketing” fentanyl as another substance, even if the seller does not utter explicit false statements. This reading tracks the Supreme Court’s ordinary meaning of “marketing” and the Sentencing Commission’s stated purpose in Amendment 807.

The court then applies these definitions to the record for each defendant.

1) Matthews: “Knowingly misrepresented.” The government offered a statement from an identified cooperating witness that “Matthews always represented the fentanyl pills that he was selling to [the cooperator] as Percocet 30 milligram pills,” and that he never told the cooperator they contained fentanyl. Because Matthews did not object to the hearsay at sentencing, plain-error review applied. Under the Sixth Circuit’s sentencing-hearsay rule, the district court may rely on hearsay with minimal indicia of reliability; corroboration is only required for unidentified informants. Here, the cooperator was identified, had first-hand interactions with Matthews, and reported specific statements about pill identity. The panel finds no plain error and holds that Matthews’s conduct fits the “misrepresented” prong: he knew the pills were fentanyl yet communicated they were something else.

2) Livingston: “Knowingly marketed.” Livingston admitted he knew the pills contained fentanyl and also knew they were visually indistinguishable from oxycodone 30s. He sold substantial volumes (50, 100, and 1,000 pills on three sales within eight days), from which the district court inferred—and the panel endorsed—that downstream resale to unwitting buyers was foreseeable. The panel holds that these sales are “marketing” fentanyl as another substance. It also rejects the argument that the enhancement should not apply because the initial buyer may have known the pills were fentanyl. Relying on Amendment 807 and the Eighth Circuit’s Wiley decision, the court emphasizes the risk to downstream buyers and the core purpose of the enhancement: deterring deceptive fentanyl distribution and protecting public health. Because Livingston’s counsel conceded knowledge at sentencing—and the PSR reflected the same—the panel treats any contrary argument as waived or invited error and, even under plain-error review, finds the record supports the district court’s knowledge finding.

On Livingston’s other issues:

Ineffective assistance of counsel (IAC): The panel follows the usual practice of deferring IAC claims to § 2255 proceedings absent a developed record. It cannot assess counsel’s strategy or prejudice on direct appeal, so it declines to reach the issue.
Downward departure for diminished capacity (§ 5K2.13): Unreviewable where (as here) the district court recognized its authority to depart but chose not to. The within-Guidelines sentence is presumptively reasonable; Livingston did not overcome that presumption.
Special supervised-release condition (electronic-device searches): Reviewed for plain error because unpreserved. The district court articulated strong public-protection concerns in a fentanyl-trafficking case; that explanation suffices (under Zobel) to justify the search condition as reasonably related to § 3553(a) purposes. No error is found.

Impact and Implications

This opinion provides precedential clarity in the Sixth Circuit on the meaning and reach of § 2D1.1(b)(13)(A):

Two distinct pathways to the enhancement:
- Misrepresentation now clearly demands an express false or misleading assertion in words (spoken or written). Sellers who explicitly label fentanyl as “oxy,” “Perc 30,” or other non-fentanyl drugs expose themselves to this prong.
- Marketing is broader and encompasses the act of selling fentanyl in a form designed to pass as another drug, even without explicit statements, when the seller knows the product contains fentanyl.
Initial buyer’s knowledge is not a spoiler. The enhancement’s focus on downstream risk means that a seller cannot defeat § 2D1.1(b)(13) merely by selling to a sophisticated purchaser who knows the truth. Large-quantity sales of disguised pills will tend to support the inference of intended resale and deception of later buyers.
Mens rea matters. The government must prove the defendant knew the substance contained fentanyl. The court’s embrace of MPC-based knowledge ensures the enhancement is not strict liability. But knowledge can be established via admissions, PSR statements adopted by the court, or reliable hearsay.
Sentencing practice implications:
- For prosecutors: Build the record with explicit statements (texts, recorded calls, buyer testimony) to support “misrepresentation” and with visuals and pill markings to support “marketing.” Document quantities to support downstream-risk inferences.
- For defense counsel: Preserve objections to hearsay reliability; request corroboration if informants are unidentified; challenge knowledge explicitly and avoid unnecessary concessions if contesting the enhancement. If mental health is central, frame arguments as § 3553(a) variances (in addition to departures) to ensure substantive-reasonableness review.
- For probation and district courts: This opinion supplies definitional guardrails and evidentiary benchmarks for future PSRs and sentencing findings.
Inter-circuit harmonization: The analysis aligns with the Eighth Circuit (Wiley) and is consistent with the Sixth Circuit’s own recent decision in Radovic. The Sixth Circuit’s added precision about “misrepresentation requires words” will likely inform how other courts parse the two prongs.
Supervised release conditions: The court signals that, at least under plain-error review, generalized public-protection rationales can support electronic-device search conditions in drug-trafficking cases when tied to § 3553(a) considerations articulated at sentencing.

Complex Concepts Simplified

Procedural reasonableness: Did the judge do the sentencing process correctly? That includes calculating the Guidelines correctly, recognizing they’re advisory, considering the statutory factors, relying on non-clearly-erroneous facts, and explaining the decision.
Standards of review:
- Abuse of discretion: Deferential review of overall procedural reasonableness.
- De novo: No deference for pure legal questions (e.g., interpreting a Guideline).
- Clear error: Deferential review of fact findings; reversed only if firmly convinced a mistake was made.
- Plain error: For unpreserved issues, the appellant must show an obvious error that affected substantial rights and seriously undermines the fairness or integrity of proceedings.
U.S.S.G. § 2D1.1(b)(13)(A): Adds four offense levels if the defendant, knowing a product contains fentanyl, either misrepresents it as another drug or markets it as another drug. Enacted to deter disguised fentanyl distribution and protect unwitting consumers.
“Knowingly misrepresented” vs. “knowingly marketed”:
- Misrepresented: Requires false or misleading words about what the substance is (e.g., calling fentanyl “Percocet”).
- Marketed: Encompasses selling or promoting fentanyl as something else; selling fentanyl pills that look like oxycodone qualifies when the seller knows the pills contain fentanyl.
Hearsay at sentencing: The Rules of Evidence don’t apply. Courts may rely on hearsay that has minimal indicia of reliability; corroboration is generally needed only for unidentified informants.
Waiver vs. invited error: Waiver is the intentional relinquishment of a right; invited error is when a party induces the court to make the alleged mistake. Waived claims are not reviewed; invited error is rarely corrected and only under plain-error principles to avoid manifest injustice.
Downward departure vs. variance:
- Departure: A Guidelines-authorized reduction for specific reasons (e.g., § 5K2.13). Denials are usually unreviewable if the court knew it had authority.
- Variance: A non-Guidelines sentence based on § 3553(a) factors; denials are reviewable for substantive reasonableness.
Special conditions of supervised release: Must be reasonably related to statutory goals (deterrence, public protection, rehabilitation) and no more restrictive than necessary. A court’s explanation for imprisonment can often justify tailored conditions (e.g., electronic-device searches for drug traffickers).

Conclusion

United States v. Matthews and Livingston supplies authoritative, published guidance in the Sixth Circuit on the fentanyl “misrepresentation/marketing” enhancement. The court holds that:

“Misrepresentation” under § 2D1.1(b)(13)(A) requires a false or misleading assertion in words; knowledge that the product contains fentanyl is essential.
“Marketing” is satisfied by knowingly selling or advertising fentanyl in a form designed to mimic another drug; the enhancement aims to prevent risks to unwitting downstream buyers, so an initial buyer’s awareness does not preclude its application.
Reliable hearsay from an identified cooperator may support sentencing findings; failure to object at sentencing greatly diminishes prospects for relief on appeal under plain-error review.
Routine sentencing doctrines hold: IAC claims belong in § 2255 absent a robust record; denials of § 5K2.13 departures are typically unreviewable; within-Guidelines sentences are presumptively reasonable; and supervised-release conditions are sustained when grounded in articulated § 3553(a) considerations.

In emphasizing ordinary meaning and the Sentencing Commission’s purpose in Amendment 807, the Sixth Circuit both narrows and broadens distinct aspects of § 2D1.1(b)(13): it narrows “misrepresentation” to verbal or written falsehoods, yet confirms that “marketing” captures the prevalent practice of selling fentanyl disguised as prescription opioids. The decision will shape plea negotiations, PSR drafting, and sentencing litigation in fentanyl cases throughout the Circuit, and it aligns the Sixth Circuit’s approach with that of the Eighth Circuit while adding important precision about the role of express statements versus deceptive sales practices.