No-Notice Upward Variances and Restitution-Repayment Conditions: Sixth Circuit Affirms Robust Sentencing Discretion in United States v. Radovic et al.

No-Notice Upward Variances and Restitution-Repayment Conditions: Sixth Circuit Affirms Robust Sentencing Discretion in United States v. Radovic et al.

Introduction

In this consolidated, non-precedential decision from the Sixth Circuit, the court affirmed six separate sentences arising out of a wide-ranging methamphetamine and fentanyl manufacturing and distribution conspiracy centered in Akron, Ohio. The opinion, authored by Judge Alice M. Batchelder and joined by Judges Clay and Bloomekatz, addresses discrete sentencing challenges by six defendants: Ronnie Radovic, Corey Wright, Algyn Kerney, Idris Jackson, Alfred Sanders, and Nasser Kahook.

The case presents a thorough tour of contemporary federal sentencing law: the standards for upward variances under 18 U.S.C. § 3553(a), the evidentiary threshold for guideline enhancements (including the fentanyl misrepresentation enhancement under U.S.S.G. § 2D1.1(b)(13) and the leadership enhancement under U.S.S.G. § 3B1.1(a)), the nonbinding nature of plea stipulations on district courts, the narrow circumstances in which a lack of “notice” might render a variance procedurally erroneous, the operation of appellate waivers in plea agreements, and the validity of imposing as a supervised release condition the repayment of restitution owed from an earlier case.

The court’s central themes are familiar but forcefully reiterated: district courts enjoy wide discretion to vary above the advisory Guidelines when the § 3553(a) factors warrant it; no advance notice is required for a variance so long as the facts are not a surprise; a defendant’s criminal history (including unscored conduct and failures on supervision) may be weighed heavily—even if already reflected in the Guidelines; circumstantial and admitted evidence may support enhancements by a preponderance; plea stipulations do not bind the court; and supervised release may be tailored to deter and protect the public, including by requiring payments on existing restitution obligations from prior convictions.

Summary of the Opinion

  • Radovic (No. 24-3308): Upward variance from 30–37 months to 57 months affirmed. The district court permissibly relied on Radovic’s persistent and violent criminal history, commission of the offense while on state supervision, unscored conduct, and need for specific and general deterrence. Double counting of criminal history to justify variance is permissible in appropriate cases.
  • Wright (No. 24-3309): Upward variance from 30–37 months to 57 months affirmed. No procedural error: district courts need not give advance notice of a variance; plea stipulations do not bind the court; no implicit promise of a lower sentence. Substantively reasonable given violent and persistent history and the need to deter and protect the public.
  • Kerney (No. 24-3364): Application of U.S.S.G. § 2D1.1(b)(13) (four-level enhancement for marketing fentanyl as another substance) affirmed. Admissions (e.g., “fake percs,” M-30 stampings, cutting fentanyl with powdered sugar) and circumstantial evidence met the preponderance standard. Total sentence of 211 months (151 months plus mandatory consecutive 60 months for 18 U.S.C. § 924(c)) affirmed.
  • Jackson (No. 24-3389): One-level upward variance from 37–46 months to 51 months affirmed. No notice required; variance supported by “unique” criminal history, including multiple DUIs, hit-and-run, child support enforcement history, and prior drug conviction; need to protect public and deter.
  • Sanders (No. 24-3400): Plea and sentence affirmed. Appellate waiver barred challenge to the agreed two-level drug premises enhancement; leadership enhancement under § 3B1.1(a) upheld on the merits based on control, recordkeeping, resupply, directing others, and scope of the enterprise. Court not bound by parties’ (mutual) request to omit the role enhancement.
  • Kahook (No. 24-3438): Upward variance from 46–57 months to 78 months affirmed (the opinion references both a three- and four-level variance; the sentence increased to 78 months either way). Substantive reasonableness justified by extensive criminal history, two prior federal sentences that failed to deter, and unpaid restitution. Special condition of supervised release requiring payments toward prior federal restitution order (10% of gross monthly income) affirmed as reasonably related to deterrence and public protection and consistent with § 3583(d).

Analysis

Precedents Cited and Their Influence

  • Gall v. United States, 552 U.S. 38 (2007): Establishes that appellate courts presume within-Guidelines sentences reasonable but do not presume outside-Guidelines sentences unreasonable; requires “sufficiently compelling” justifications for variances and review under abuse-of-discretion. Cited to frame the standard and to emphasize deference to district courts’ § 3553(a) balancing.
  • Kimbrough v. United States, 552 U.S. 85 (2007): Introduces the “heartland” concept—whether the case fits the mine-run of cases for which the Guidelines were designed. The panel repeatedly uses “heartland” to validate upward variances where unscored conduct, supervision violations, or unique recidivism risks push the case outside the typical drug-conspiracy profile.
  • United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020): Requires a “sufficiently compelling” justification to support an above-Guidelines variance. Applied to uphold variances for Radovic, Jackson, and Kahook.
  • United States v. Thomas, 933 F.3d 605 (6th Cir. 2019): Highlights the “high bar” defendants face in challenging upward variances as substantively unreasonable. The panel uses this to underscore affirmances.
  • United States v. Lee, 974 F.3d 670 (6th Cir. 2020): Confirms that “double counting” criminal history can be appropriate and that prior conduct need only have “some meaningful relationship” to the instant offense to inform deterrence and danger-to-public analysis. Central to upholding Radovic’s and Jackson’s variances.
  • United States v. Boucher, 937 F.3d 702 (6th Cir. 2019): Emphasizes that non-mine-run determinations “attract greatest respect.” Supports deference to upward variances premised on atypical criminal histories.
  • United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015): Clarifies that district courts need not give advance notice of a variance; procedural error only arises if the variance rests on facts that “came as a surprise” to the defendant. Deployed to reject procedural challenges by Wright and Jackson.
  • United States v. Hinton, 2021 WL 5505498 (6th Cir. Nov. 24, 2021): If the PSR discloses the facts, they are not a “surprise.” Used to show that reliance on PSR facts defeats “notice” claims.
  • 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. Sexton, 512 F.3d 326 (6th Cir. 2008): Explain that district courts need not mechanically recite § 3553(a) factors and may weigh some factors more heavily than others. Supports the district courts’ emphasis on criminal history and deterrence.
  • United States v. Morris, 71 F.4th 475 (6th Cir. 2023); United States v. Sanbria-Bueno, 549 F. App’x 434 (6th Cir. 2013): Permit heavy reliance on criminal history beyond what the Guidelines account for. Applied in Radovic and Wright.
  • United States v. Axline, 93 F.4th 1002 (6th Cir. 2024): Restates abuse-of-discretion review for substantive reasonableness; sets the appellate review lens for the variances.
  • 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): Framework for reviewing guideline enhancements—de novo on law, clear error on fact, preponderance standard on proof. Applied in Kerney and Sanders.
  • United States v. Allen, 2022 WL 7980905 (6th Cir. Oct. 14, 2022): Upholds reliance on circumstantial evidence to apply § 2D1.1(b)(13). Directly supports Kerney’s enhancement for marketing fentanyl as Percocet.
  • Anderson v. Bessemer City, 470 U.S. 564 (1985): If two permissible views of the evidence exist, an appellate court cannot reverse the district court’s choice. Reinforces affirmance of Kerney’s enhancement.
  • United States v. Robbins, 240 F. App’x 684 (6th Cir. 2007): Plea stipulations do not bind the district court, and cautionary sentencing remarks do not create binding promises. Refutes Wright’s plea-based arguments.
  • United States v. Castilla-Lugo, 699 F.3d 454 (6th Cir. 2012); United States v. Shanklin, 924 F.3d 905 (6th Cir. 2019): Leadership enhancement factors need not all be present; deference owed to district court’s role finding. Applied to sustain Sanders’s § 3B1.1(a) enhancement.
  • United States v. Smith, 960 F.3d 883 (6th Cir. 2020): Valid appellate waivers are enforced when knowingly and voluntarily made. Used to enforce Sanders’s waiver as to the drug-premises enhancement.
  • United States v. May, 568 F.3d 597 (6th Cir. 2009): Upholds special conditions of supervision that require payment toward a prior lawful obligation, as consistent with protecting the public and discouraging recidivism. Anchors affirmance of Kahook’s repayment condition.
  • United States v. Church, 731 F.3d 530 (6th Cir. 2013): Distinguished; deals with restitution to third-party payors, not repayment of an existing restitution order during supervised release.
  • 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): Sister-circuit support for conditioning supervised release on payments toward outstanding restitution from prior cases when not imposing a new restitution obligation.
  • 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 of supervised release conditions (procedural and substantive); criteria under 18 U.S.C. § 3583(d). Provides the framework for reviewing the condition imposed on Kahook.
  • Other procedural authorities: United States v. Bolds, 511 F.3d 568 (6th Cir. 2007) (procedural reasonableness); United States v. Simpson, 138 F.4th 438 (6th Cir. 2025) (plain-error review); Doe v. Michigan State Univ., 989 F.3d 418 (6th Cir. 2021) (waiver for undeveloped arguments); United States v. Hensel, 220 F. App’x 428 (6th Cir. 2007) (briefing adequacy); United States v. Houston, 529 F.3d 743 (6th Cir. 2008) (appellate restraint in reweighing § 3553(a)).

Legal Reasoning and Application

1) Upward variances: deference, deterrence, and “double counting”

Across multiple defendants (Radovic, Wright, Jackson, and Kahook), the panel affirmed upward variances as substantively reasonable. The lodestar is familiar: abuse-of-discretion review under Gall, a requirement that the district court articulate reasons under § 3553(a), and heightened explanation for outside-Guidelines sentences. In each instance, the district court expressly credited deterrence and protection of the public, then tied those goals to the defendant’s criminal history and track record on supervision.

The court endorsed reliance on:

  • Patterns of violence or dangerous conduct (Radovic; Wright).
  • Commission of the instant offense while on supervision (Radovic).
  • Extensive, sometimes unscored, criminal conduct and failures on supervision or restitution (Radovic; Jackson; Kahook).
  • Prior within-Guidelines sentences that failed to deter (Wright; Kahook).

The court reiterated that this is not impermissible “double counting.” Under Lee, district courts may consider criminal history both in calculating the Guidelines and again when assessing whether the Guidelines adequately capture danger, deterrence, and recidivism. The opinion repeatedly invokes Kimbrough’s “heartland” concept to explain why these drug cases were atypical in light of the defendants’ backgrounds and therefore warranted variances.

2) No advance notice is required for an upward variance; “surprise” controls

Wright’s and Jackson’s procedural challenges fail under Coppenger: district courts need not give advance notice that they are contemplating an upward variance. Procedural error occurs only if the court relies on facts that “came as a surprise” and deprived the defendant of a chance to respond. Here, the facts were disclosed in the PSRs (which the defendants reviewed), and the defendants had opportunities to argue against variances at sentencing. That sufficed to eliminate any “surprise” concerns.

3) Fentanyl misrepresentation enhancement (§ 2D1.1(b)(13)) may rest on admissions and circumstantial evidence

Kerney challenged the four-level enhancement for knowingly misrepresenting or marketing “as another substance a mixture or substance containing fentanyl.” The district court relied on Kerney’s recorded admissions (calling the pills “fake percs,” describing cutting fentanyl with powdered sugar) and on physical indicators (M-30 stampings). Even absent direct proof of actual sales, the court found by a preponderance that Kerney marketed the fentanyl-laced pills as legitimate Percocet. On appeal, the panel affirmed under clear-error review, citing Allen to confirm that circumstantial evidence and admissions can establish the requisite mens rea.

4) Leadership enhancement (§ 3B1.1(a)) applied despite plea posture; not all factors are required

Sanders’s plea agreement did not contemplate a leadership enhancement, and both parties urged the district court not to apply it. Nevertheless, the court found Sanders to be a leader/organizer. The panel emphasized that the court is not bound by parties’ stipulations (Robbins; general Rule 11 doctrine). The evidence—Sanders kept ledgers of amounts owed, demanded and collected proceeds, resupplied distributors from his home (“the office”), and directed a co-conspirator to cook crack—supported the enhancement without the need to find every factor (recruitment, larger share) listed in Application Note 4. Castilla-Lugo confirms that not every factor is necessary, and Shanklin counsels deference to the district court’s role finding.

The appellate waiver in Sanders’s plea agreement foreclosed his challenge to the agreed drug-premises enhancement, but not to the role enhancement that the agreement did not address. Even then, the leadership enhancement was affirmed on the merits.

5) Supervised release may require repayment on prior restitution orders

The panel approved a special condition requiring Kahook to pay at least 10% of his gross monthly income toward an outstanding restitution obligation from a prior federal case. Applying § 3583(d)’s three-part test, the court held the condition was:

  • Reasonably related to § 3553(a) factors, including deterrence and protection of the public (given Kahook’s repeated criminality and failure to honor court-ordered obligations).
  • No greater deprivation of liberty than reasonably necessary (a percentage-of-income payment tailored to ability).
  • Consistent with applicable policy statements.

The court distinguished Church and followed May, as well as Second, Fifth, and Tenth Circuit decisions (Gill, Love, Mitchell), to confirm that a court may condition supervised release on payment toward an existing, lawful restitution order—so long as it does not impose a new restitution obligation in the new case.

Impact and Implications

  • Upward variances grounded in criminal history will continue to be difficult to overturn. The panel demonstrates broad deference to district courts that articulate concrete deterrence and public-safety imperatives linked to a defendant’s record, including unscored conduct, supervision violations, and failures to comply with court orders. Counsel should anticipate that prior within-Guidelines sentences that failed to deter will be powerful variance fodder.
  • No “notice” safety net for variances. Defendants cannot rely on a lack of advance notice to challenge an upward variance; the decisive question is whether the facts were disclosed (e.g., in the PSR) and whether the defendant could respond. Defense teams must carefully vet PSR content and address every aggravating fact head-on at sentencing.
  • Fentanyl misrepresentation enhancement is readily supportable via admissions/circumstantial cues. Where pills are stamped and defendants acknowledge cutting fentanyl to mimic pharmaceutical products, courts may infer marketing/representation without proof of actual sales of the specific counterfeit pills. This will raise sentencing exposure for fentanyl “look-alike” pill cases.
  • Plea agreements do not bind the court on enhancements, and appellate waivers will be enforced. Parties cannot insulate a defendant from a role enhancement by mutual recommendation. Separately, waivers typically foreclose appeals on agreed enhancements; challenges to unstipulated enhancements remain possible but face deferential review.
  • Supervised release conditions can enforce prior restitution orders. District courts may, within § 3583(d), require installment payments on existing restitution in a new case’s supervision term, bolstering accountability and deterrence without creating a new restitution obligation. Expect broader use of such conditions for defendants with substantial unpaid court-ordered debts.
  • Age and prior federal experience do not necessarily mitigate. The court affirmed a significant upward variance for a 62-year-old defendant (Kahook) with two prior federal sentences, emphasizing failed deterrence and unpaid restitution. Prior exposure to federal punishment can aggravate rather than mitigate.

Complex Concepts Simplified

  • Upward variance: A sentence higher than the advisory Guidelines range, imposed under § 3553(a) factors (e.g., seriousness, deterrence, public protection, history and characteristics).
  • Procedural vs. substantive reasonableness: Procedural looks at the process (correct Guidelines calculation, considering § 3553(a), adequate explanation). Substantive asks whether the length is reasonable given the factors (not greater than necessary).
  • “Double counting” criminal history: Using criminal history both in the Guidelines and again to justify a variance. Permissible where used to assess deterrence, danger, and recidivism beyond the advisory range’s account.
  • “Heartland”/“mine-run” case: The norm of cases the Guidelines were designed for; if a case is atypical, a variance may be appropriate.
  • PSR (Presentence Investigation Report): A comprehensive report prepared for sentencing; facts in the PSR generally defeat any claim that variance facts were a “surprise.”
  • Plain error: A high standard on appeal requiring a clear error that affects substantial rights and the integrity of judicial proceedings, typically applied when an issue was not preserved below.
  • U.S.S.G. § 2D1.1(b)(13): Four-level enhancement if a defendant knowingly misrepresents or markets a mixture containing fentanyl as another substance (e.g., Percocet).
  • U.S.S.G. § 3B1.1(a): Four-level enhancement for leaders/organizers in criminal activity involving five or more participants or that is otherwise extensive; not every listed factor must be present.
  • 18 U.S.C. § 924(c): Possessing a firearm in furtherance of a drug trafficking crime carries a mandatory consecutive term (commonly five years for § 924(c)(1)(A)(i)).
  • Supervised release special conditions: Tailored obligations during supervision, permissible if reasonably related to § 3553(a), no greater deprivation than necessary, and consistent with policy. May include payment toward prior lawful restitution orders.
  • Safety valve: A statutory and Guidelines mechanism allowing certain nonviolent, low-level drug offenders meeting criteria to avoid mandatory minimums or receive offense-level reductions.

Case-by-Case Highlights

I. Radovic

Guidelines range 30–37 months; sentence 57 months plus eight years’ supervised release. The district court’s four-level upward variance rested on violent and persistent criminal history, offending while on state supervision, and unscored conduct indicating high recidivism risk. The Sixth Circuit held this was a non-mine-run case; “double counting” concerns do not bar reliance on criminal history for variance purposes (Lee). The court also found a meaningful relationship between Radovic’s history (including multiple drug convictions) and the instant offense.

II. Wright

Guidelines range 30–37 months; sentence 57 months. The district court denied a minor-participant reduction and varied upward based on Wright’s history (including a homicide at age 17) and the need for deterrence. Procedural attacks failed: no notice of variance is required (Coppenger); plea stipulations do not bind the court (Robbins); and no implicit promise of leniency was made. Substantively reasonable given the rationale and record.

III. Kerney

Total sentence 211 months (151 months plus consecutive 60 months for § 924(c)). The court applied § 2D1.1(b)(13) based on Kerney’s own statements that he made and sold “fake percs,” physical features (M-30 stampings), and his admissions of selling. The enhancement was supported by a preponderance even without direct proof of sales of those specific pills, and the district court’s factfinding was not clearly erroneous (Anderson; Allen).

IV. Jackson

Guidelines range 37–46 months; sentence 51 months. The district court identified a “unique” criminal history (multiple DUIs, a 2019 hit-and-run, unpaid child support, prior drug conviction) justifying a one-level upward variance to protect the public and deter. No procedural error (notice not required; argument waived for lack of development), and the variance was substantively reasonable (Kimbrough; Lee; Boucher).

V. Sanders

Guidelines after adjustments: 168–210 months plus a consecutive 60 months on Count 8 (§ 924(c)). The appellate waiver barred challenge to the two-level drug-premises enhancement agreed in the plea. The four-level leadership enhancement was affirmed on the merits due to evidence of Sanders’s control and organization: keeping ledgers, collecting proceeds, resupplying from his residence (“the office”), and directing production. The court reiterated that it is not bound by the parties’ sentencing stipulations and that not every § 3B1.1 factor must be found (Castilla-Lugo).

VI. Kahook

Guidelines range 46–57 months; sentence 78 months. The district court varied upward (the opinion references three and four levels; in any event to 78 months) based on extensive criminal history, failed deterrence from prior federal sentences (46 and 51 months), and unpaid restitution (over $300,000). It also imposed a special supervised release condition requiring payments toward the prior restitution order (minimum 10% of gross monthly income), which the panel affirmed as reasonably related to deterrence and public protection and consistent with § 3583(d), in line with May and other circuits.

Conclusion

Although not recommended for publication, this decision is a comprehensive reaffirmation of the breadth of district court sentencing discretion in the Sixth Circuit. It sends several clear signals:

  • Upward variances are sustainable when the court ties them to concrete § 3553(a) considerations—particularly deterrence and public safety grounded in robust criminal histories, supervision failures, and unscored conduct.
  • No advance notice of an upward variance is required; PSR-based facts generally defeat claims of surprise.
  • Guideline enhancements may be supported by admissions and circumstantial evidence under a preponderance standard, with clear-error deference on appeal—illustrated by the fentanyl misrepresentation enhancement.
  • The leadership enhancement does not require every enumerated factor, and district courts are not constrained by the parties’ recommendations or omissions in plea agreements.
  • Supervised release may be used to enforce accountability for unpaid restitution from prior cases, provided the condition is reasonably related to § 3553(a) factors and does not create a new restitution obligation.

For practitioners, the opinion underscores the importance of fully engaging with the PSR, developing a detailed mitigation record that addresses deterrence and danger to the public, and candidly advising clients that sentencing stipulations and recommendations—by either party—do not bind the court. For district courts, the decision validates thoughtful, record-based explanations for variances and tailored supervised release conditions as consistent with § 3553(a) and § 3583(d).

Case Details

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

Comments