No Notice Needed for Upward Variances; Counterfeit‑Pill Enhancement and Prior‑Restitution Payment Condition Upheld — United States v. Sanders et al. (6th Cir. 2025)

No Notice Needed for Upward Variances; Counterfeit‑Pill Enhancement and Prior‑Restitution Payment Condition Upheld — United States v. Sanders et al. (6th Cir. 2025)

Court: U.S. Court of Appeals for the Sixth Circuit (unpublished)
Panel: Judges Batchelder (author), Clay, and Bloomekatz
Date: September 11, 2025
Consolidated Case Nos.: 24‑3308/3309/3364/3389/3400/3438

Introduction

This consolidated, unpublished opinion arises from a wide‑ranging methamphetamine and fentanyl manufacturing and distribution conspiracy centered in Akron, Ohio. Six defendants—Ronnie Radovic, Corey Wright, Algyn Kerney, Idris Jackson, Alfred Sanders, and Nasser Kahook—each pled guilty to various drug and related offenses and appealed their sentences on distinct grounds. The Sixth Circuit affirmed across the board.

While the opinion is “not recommended for publication,” it offers clear, practice‑oriented guidance on several recurring sentencing questions in federal criminal cases:

  • District courts are not required to give advance notice of an upward variance, and reliance on facts set out in the Presentence Investigation Report (PSR) avoids “surprise.”
  • Courts may place heavy weight on criminal history—even if that history is reflected in the Guidelines—when deterrence and public protection warrant it, and may characterize atypical recidivist cases as outside the “heartland.”
  • The § 2D1.1(b)(13) enhancement for misrepresenting or marketing fentanyl as another drug (“fake percs”) can be sustained on circumstantial proof and a defendant’s own statements.
  • The § 3B1.1(a) leadership enhancement may be applied despite party stipulations to the contrary when the record shows organizing authority and control.
  • A special condition of supervised release may lawfully require payments toward an existing restitution obligation from a prior case (without imposing new restitution).

Summary of the Opinion

  • Radovic (No. 24‑3308): The court affirmed a substantial upward variance from a 30–37 month range to 57 months. The district court permissibly emphasized Radovic’s violent, persistent criminal history, his commission of the offense while on supervision, and unscored conduct, all tied to deterrence and public protection under § 3553(a).
  • Wright (No. 24‑3309): Procedural challenges failed. No advance notice of an upward variance was required, and the court relied on PSR facts known to Wright. The plea stipulations did not bind the court. The upward variance to 57 months was substantively reasonable given Wright’s violent history, including a homicide at age 17, and failed prior deterrence.
  • Kerney (No. 24‑3364): The court upheld a four‑level enhancement under U.S.S.G. § 2D1.1(b)(13) for knowingly marketing fentanyl as Percocet. Evidence included Kerney’s admissions (calling them “fake percs,” explaining color‑matching with powdered sugar) and pill markings (“M‑30”). The resulting 151 months plus a mandatory consecutive 60 months for a § 924(c) count was procedurally sound.
  • Jackson (No. 24‑3389): A modest upward variance from 37–46 to 51 months was affirmed. Arguments about lack of notice were waived and meritless; the district court reasonably found the case outside the “heartland” based on Jackson’s unique danger evidenced by serial DUI offenses, a hit‑and‑run, failure to pay child support, and juvenile history.
  • Sanders (No. 24‑3400): The court rejected Sanders’s attempt to invalidate his plea based on Rule 11 colloquy; the appellate waiver barred challenges to the agreed drug‑premises enhancement. On the merits, the court affirmed a § 3B1.1(a) leadership enhancement based on ledgers, control over resupply, use of the residence as “the office,” direction to cook crack, and co‑conspirators calling themselves his “soldiers.” The court imposed 168 months on substantive counts plus a mandatory consecutive 60 months for the § 924(c) count.
  • Kahook (No. 24‑3438): The court affirmed a substantial upward variance to 78 months, emphasizing two prior federal sentences that failed to deter, extensive state convictions, and nonpayment of substantial prior restitution. It also upheld a supervised‑release condition requiring monthly payments toward the existing restitution order from a prior case, finding it reasonably related to deterrence and public protection and consistent with § 3583(d).

Analysis

Precedents Cited and How They Drove the Results

  • Gall v. United States, 552 U.S. 38 (2007): Appellate review of substantive reasonableness is abuse of discretion; no presumption of unreasonableness for outside‑Guidelines sentences, but greater variances require more compelling justifications. Anchors the court’s approach to upward variances throughout.
  • United States v. Perez‑Rodriguez, 960 F.3d 748 (6th Cir. 2020): Outside‑Guidelines sentences require “sufficiently compelling” reasons; the court references this “closer review” yet emphasizes the still‑high bar defendants face.
  • United States v. Thomas, 933 F.3d 605 (6th Cir. 2019): The Sixth Circuit reiterates that even challenges to upward variances meet a high bar—supporting affirmance in Radovic, Wright, Jackson, and Kahook.
  • Kimbrough v. United States, 552 U.S. 85 (2007): “Heartland” concept: cases outside the typical set for which the Guidelines were designed can justify variances. The court repeatedly invokes this to uphold upward variances premised on unusual criminal histories and recidivism risks.
  • United States v. Lee, 974 F.3d 670 (6th Cir. 2020): Permits “double counting” in the sense of relying on criminal history both in the Guidelines calculation and as a § 3553(a) driver for variance where deterrence and public safety justify more—key to Radovic and Kahook.
  • United States v. Boucher, 937 F.3d 702 (6th Cir. 2019): Sentences in non‑mine‑run cases get “greatest respect”; used to affirm variances where the criminal history profile renders the case atypical (Radovic, Jackson).
  • United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015): No Rule 32(h)‑style notice is required for variances; only “surprise” based on unknown facts creates procedural concern. The court relies on PSR‑based notice to reject Wright’s and Jackson’s notice claims.
  • United States v. Hinton, 2021 WL 5505498 (6th Cir. Nov. 24, 2021); United States v. Rossi, 422 F. App’x 425 (6th Cir. 2011): Where the PSR contains the facts, there is no “surprise.” Applied to uphold upward variances without prior court notice.
  • United States v. Robbins, 240 F. App’x 684 (6th Cir. 2007): The district court is not bound by the parties’ sentencing stipulations; used to reject Wright’s claim that the plea agreement tied the court’s hands.
  • United States v. Gates, 48 F.4th 463 (6th Cir. 2022); United States v. Morris, 71 F.4th 475 (6th Cir. 2023); United States v. Sanbria‑Bueno, 549 F. App’x 434 (6th Cir. 2013): District courts may assign significant weight to criminal history and the efficacy (or lack thereof) of prior sentences in serving deterrence.
  • Standards for enhancements: 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): procedural‑reasonableness review of enhancements uses clear‑error for facts and de novo for legal application; government’s burden is preponderance of the evidence.
  • § 2D1.1(b)(13) enhancement: United States v. Allen, 2022 WL 7980905 (6th Cir. Oct. 14, 2022) confirms circumstantial evidence may prove misrepresentation/marketing of fentanyl as another substance. Underpins affirmance in Kerney.
  • § 3B1.1 leadership: U.S.S.G. § 3B1.1 cmt. n.4 and United States v. Castilla‑Lugo, 699 F.3d 454 (6th Cir. 2012): court need not find every factor; totality showing decision‑making authority, planning, scope, control suffices. Applied to Sanders.
  • Supervised release conditions: 18 U.S.C. § 3583(d) and United States v. Barcus, 892 F.3d 228 (6th Cir. 2018); United States v. Carter, 463 F.3d 526 (6th Cir. 2006); United States v. May, 568 F.3d 597 (6th Cir. 2009): a condition must be reasonably related to § 3553(a)(1), (a)(2)(B)–(D), impose no greater liberty deprivation than necessary, and be consistent with Guidelines policy. May supports requiring payments on an existing obligation; other circuits concur (Gill, 2d Cir.; Love, 5th Cir.; Mitchell, 10th Cir.).
  • Plea validity: Brady v. United States, 397 U.S. 742 (1970) and Fed. R. Crim. P. 11; United States v. Mitchell, 135 F.4th 507 (6th Cir. 2025): plea must be knowing, intelligent, and voluntary; the opinion rejects Sanders’s Rule 11 challenge under plain‑error review.

Legal Reasoning: How the Sixth Circuit Reached Its Results

1) Upward variances anchored in deterrence and public safety

For Radovic, Wright, Jackson, and Kahook, the district court articulated clear § 3553(a) reasons, with special emphasis on specific and general deterrence and protection of the public, to justify moving above the advisory ranges. The Sixth Circuit reiterated that it will not second‑guess a district court’s reasoned weighting of § 3553(a) factors, and that heavy reliance on criminal history is permissible—even when that history already informs the Guidelines—if the court explains why the history and the track record of prior sentences demonstrate a need for added punishment to deter and protect.

In multiple appeals, the court endorsed the district court’s characterization of these cases as falling outside the Guidelines “heartland,” based on unique facts: violent pasts (Radovic, Wright), serial DUIs and disregard for legal obligations (Jackson), or repeated failures of prior within‑Guidelines sentences to deter and nonpayment of a large restitution balance (Kahook). That heartland finding permits greater deference to the district court’s chosen variance.

2) No advance notice is required for upward variances; PSR‑based notice suffices

Wright’s and Jackson’s notice arguments failed. The Sixth Circuit reaffirmed that district courts need not provide advance notice of intent to vary upward. The concern is only whether the variance rests on facts that “came as a surprise,” depriving the defendant of a fair chance to respond. Where, as here, the court relied on PSR content the defendants reviewed with counsel, there was no “surprise.” Wright’s additional claim—that the court “negated” the plea by not honoring a stipulated range—failed because plea stipulations do not bind the court’s sentencing discretion.

3) “Fake Percs” and the § 2D1.1(b)(13) enhancement: admissions and circumstantial proof suffice

Kerney’s challenge to the four‑level enhancement for marketing fentanyl as Percocet was rejected. The court held that the district court did not clearly err in finding, by a preponderance of the evidence, that Kerney misrepresented fentanyl as Percocet to buyers. Key facts included Kerney’s own statements (calling them “fake percs,” describing mixing fentanyl with powdered sugar to match color), pill stamping consistent with legitimate Percocet (“M‑30”), and his admission that the pills were for sale. Even without direct evidence of specific sales, circumstantial evidence and reasonable inferences can establish the mens rea required by § 2D1.1(b)(13).

4) Leadership enhancement under § 3B1.1(a) sustained despite plea posture

In Sanders’s case, the district court applied a four‑level organizer/leader enhancement. The Sixth Circuit emphasized that § 3B1.1 looks at totality: decision‑making, planning, scope, and control over others. The record showed Sanders kept ledgers reflecting amounts owed, ran operations from his residence (“the office”), directed a co‑conspirator to manufacture crack, and was described by co‑conspirators as their “leader” or “soldiers.” That sufficed regardless of the parties’ preference not to seek the enhancement; the court is not confined by party stipulations.

5) Supervised‑release condition requiring payment on prior restitution is permissible

Kahook’s supervised‑release challenge failed. The court applied § 3583(d)’s three‑part test and held the condition was reasonably related to deterrence and public protection, imposed no greater deprivation than necessary (a percentage‑of‑income payment plan during supervision), and was consistent with policy statements. Crucially, the condition did not impose a new restitution obligation; it simply required payments toward an existing, unpaid restitution order from a prior case—a practice the Sixth Circuit approved in May and which other circuits also permit.

Impact: Why This Opinion Matters

  • Sentencing practice and appellate strategy: The opinion underscores the breadth of district court discretion to vary upward when criminal history indicates a heightened need for deterrence and protection—even if the Guidelines already account for past crimes. Defense counsel must build robust mitigations on recidivism risk and present affirmative evidence of rehabilitation to counter the “outside the heartland” framing.
  • No‑notice variances: Treat the PSR as your notice. When the PSR contains aggravating historical facts, object to accuracy, context, and interpretation early and preserve arguments. Do not expect prior advance notice from the bench.
  • Counterfeit‑pill prosecutions: The § 2D1.1(b)(13) enhancement remains potent in fentanyl cases where pills are stamped or marketed as legitimate pharmaceuticals. Defendants’ own admissions and circumstantial proof will sustain the enhancement; attack mens rea and marketing proof with specificity if challenging it.
  • Plea negotiations and stipulations: Stipulations to offense levels or the absence of certain enhancements are not binding on the court unless the plea is of the narrow Rule 11(c)(1)(C) “binding” variety (not at issue here). Appellate waivers tied to stipulated computations will foreclose challenges within their scope; ensure clients understand that the court may adopt enhancements not contemplated by the parties.
  • Supervised‑release conditions and financial obligations: Courts may condition supervised release on paying down prior, outstanding restitution. This aligns sentencing with the twin goals of deterrence and public protection and places continued importance on compliance with prior orders.
  • Record‑making for variances: District courts that carefully walk through § 3553(a), explain why prior sentences failed, and connect criminal history to deterrence and public safety are highly likely to be affirmed—even for substantial upward variances.

Complex Concepts Simplified

  • Procedural vs. substantive reasonableness:
    • Procedural asks: Did the court correctly calculate the Guidelines, rule on objections, consider § 3553(a), and explain the sentence?
    • Substantive asks: Is the sentence reasonable given the facts and § 3553(a), and not greater than necessary to achieve statutory goals?
  • Upward variance: A sentence above the advisory Guideline range based on § 3553(a) factors. Greater variances require more persuasive justification but are reviewed deferentially.
  • “Heartland” cases: The Guidelines are designed for typical cases. When circumstances (e.g., unusual recidivism) make a case atypical, courts may vary and receive “greatest respect” on review.
  • “Double counting” criminal history: Not a Guidelines double‑counting doctrine; rather, courts may consider prior record both in the advisory range and again when weighing deterrence and public protection under § 3553(a).
  • PSR and notice: There is no requirement that courts give advance notice of a variance. If the PSR contains the facts the court relies on, there is no unfair surprise.
  • § 2D1.1(b)(13) (misrepresentation/marketing fentanyl): Adds four levels if the defendant marketed a fentanyl substance as another drug (e.g., counterfeit Percocet). Proof can be circumstantial and include pill markings, packaging, and admissions.
  • § 3B1.1(a) (leader/organizer): Adds four levels where the defendant organized or led criminal activity involving five or more participants or that was otherwise extensive. Courts look to decision‑making, planning, scope, and control—not every factor is required.
  • Supervised‑release conditions (18 U.S.C. § 3583(d)): Conditions must be reasonably related to certain § 3553(a) goals, involve no greater liberty deprivation than necessary, and be consistent with policy statements. Courts may require payments toward an existing restitution order as a condition; they may not impose “new” restitution outside statutory authority.
  • Plea validity and appellate waivers: A plea must be knowing and voluntary; the court’s Rule 11 colloquy is designed to ensure this. Appellate waivers are enforced if entered knowingly; they can foreclose challenges to enhancements contemplated by the plea.
  • Standards of review:
    • Abuse of discretion for substantive reasonableness of a sentence.
    • Clear error for factual findings supporting enhancements; de novo for legal application.
    • Plain error when an issue was not preserved—error must be clear, affect substantial rights, and undermine the fairness, integrity, or public reputation of proceedings.

Conclusion

United States v. Sanders et al. reinforces several durable sentencing principles in the Sixth Circuit. District courts have latitude to vary upward when criminal histories and failed deterrence demonstrate atypical recidivism risk and public danger; they need not give advance notice of such variances when relying on PSR‑disclosed facts. The court also validated two impactful enhancements/conditions frequently litigated in narcotics cases: the § 2D1.1(b)(13) “counterfeit pill” enhancement and the § 3B1.1 leadership adjustment. Finally, it confirmed that supervised release may be used to enforce payment on a prior restitution obligation, aligning with deterrence and community protection.

Although unpublished, the opinion provides practical guidance for sentencing advocacy in drug conspiracy cases—emphasizing the importance of robust record‑building on deterrence, recidivism, and public safety, the non‑binding nature of plea stipulations at sentencing, and the evidentiary routes by which courts can sustain enhancements and conditions aimed at counterfeit narcotics markets and financial accountability.

Case Details

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

Comments