No-Notice Upward Variances and Supervised-Release Repayment of Prior Restitution: Sixth Circuit’s Consolidated Guidance in United States v. Idris Jackson

Introduction

In this nonprecedential but instructive consolidated decision arising from a large Akron, Ohio drug conspiracy, the Sixth Circuit affirmed six sentences, addressing a suite of recurring federal sentencing questions that frequently vex district courts and appellate counsel alike. The panel (Judges Batchelder, Clay, and Bloomekatz; opinion by Judge Batchelder) considered individualized challenges brought by defendants Ronnie Radovic, Corey Wright, Algyn Kerney, Idris Jackson, Alfred Sanders, and Nasser Kahook, all of whom pleaded guilty to various counts stemming from a fentanyl/methamphetamine/cocaine distribution conspiracy.

Across the six appeals, the court:

Reaffirmed that district courts need not give pre-hearing “notice” to vary upward, so long as the facts underpinning the variance do not “come as a surprise” to the defendant (typically because they appear in the Presentence Investigation Report).
Endorsed district courts’ reliance on defendants’ criminal histories—including conduct already reflected in the Guidelines score and even conduct not scored—to justify upward variances aimed at specific and general deterrence and protection of the public.
Clarified the evidentiary showing supporting the fentanyl “misrepresentation/marketing” enhancement under U.S.S.G. § 2D1.1(b)(13), sustaining its application based on admissions and circumstantial proof that fake “Percocet” pills contained fentanyl and were marketed as genuine prescription pills.
Upheld organizer/leader enhancements under U.S.S.G. § 3B1.1(a) where the record showed decision-making authority, control, and direction of co-conspirators, even if not every guideline factor (such as recruitment) is present.
Confirmed that a court may, as a special condition of supervised release, require a defendant to pay down a balance owed on a pre-existing restitution order from a prior case, provided the condition satisfies the statutory criteria of 18 U.S.C. § 3583(d) and does not create a new restitution obligation.

Summary of the Opinion

Radovic (No. 24-3308): Pleaded to conspiracy. Guidelines 30–37 months (OL 13, CHC V). District court varied upward to 57 months, citing violent recidivism, offending while on supervision, and unscored conduct. Substantive reasonableness challenge rejected; emphasis on deterrence and public safety is permissible and supported by the record.
Wright (No. 24-3309): Pleaded to conspiracy. Guidelines 30–37 months (OL 15, CHC IV). Upward variance to 57 months, based on a persistent and violent criminal history beginning at age 17. Procedural challenges—lack of notice and alleged negation of plea stipulations—rejected; substantive challenge also rejected.
Kerney (No. 24-3364): Pleaded to multiple drug and firearm offenses. Four-level enhancement under § 2D1.1(b)(13) applied for marketing fentanyl as another substance (fake “Percocet”). Total sentence 211 months (151 months plus mandatory consecutive 60 months on the § 924(c) count). Procedural challenge to the enhancement failed; the record (including Kerney’s admissions and pill appearance) sufficed under a preponderance standard.
Jackson (No. 24-3389): Pleaded to conspiracy. Guidelines 37–46 months (OL 19, CHC IV). Upward variance to 51 months (based on multiple DUI events, a hit-and-run, child-support violations, and other recidivism). Notice claim waived and, in any event, fails on the merits; substantive challenge rejected given “outside the heartland” recidivism risk.
Sanders (No. 24-3400): The hub supplier pleaded to counts including conspiracy and § 924(c). The court applied a two-level “drug premises” enhancement and a four-level organizer/leader enhancement. With acceptance and substantial-assistance reductions, it imposed 168 months on Counts 1–7 plus a mandatory consecutive 60 months on the § 924(c) count. Plea was knowing and voluntary; appeal waiver enforced as to the drug-premises enhancement; leadership enhancement affirmed on the merits.
Kahook (No. 24-3438): Pleaded to conspiracy involving roughly 1 kilogram of cocaine. Guidelines 46–57 months (OL 21, CHC III). Upward variance to 78 months driven by two prior federal sentences that failed to deter, numerous state convictions, and nonpayment of large outstanding restitution from a prior case. The panel also affirmed a special supervised-release condition requiring monthly payments toward that prior restitution balance under § 3583(d).

All judgments were affirmed.

Analysis

Precedents Cited and How They Shaped the Decision

Gall v. United States, 552 U.S. 38 (2007) and United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020): These anchor the framework for appellate review of variances. A sentence outside the Guidelines is not presumptively unreasonable, but an above-Guidelines sentence needs a “sufficiently compelling” justification. The panel repeatedly measured the district courts’ explanations against this standard and found them adequate, particularly where deterrence and protection of the public were front-and-center.
Kimbrough v. United States, 552 U.S. 85 (2007): The “heartland” concept figured prominently. The panel endorsed upward variances where a defendant’s criminal history or risk profile made the case atypical compared to the mine-run cases assumed by the Guidelines, warranting movement outside the range.
United States v. Lee, 974 F.3d 670 (6th Cir. 2020): This case supports considering criminal history both within the Guidelines and again under § 3553(a)—i.e., so-called “double counting” is not categorically forbidden. The panel drew on Lee to approve upward variances grounded in violent or persistent histories and the demonstrated inefficacy of prior sentences.
United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015): There is no general requirement to give pre-sentencing notice of a potential upward variance. Appellate relief may be available if the variance rests on facts that come as a genuine surprise, depriving the defendant of a chance to respond. Here, reliance on PSR facts avoided “surprise.”
United States v. Robbins, 240 F. App’x 684 (6th Cir. 2007): A plea agreement’s sentencing stipulations are not binding on the court (absent a Rule 11(c)(1)(C) agreement). The panel used Robbins to reject claims that variances “eviscerated” plea bargains.
Standards of Review: - Substantive reasonableness: abuse of discretion (e.g., United States v. Axline, 93 F.4th 1002 (6th Cir. 2024)).
- Procedural issues preserved: de novo on Guidelines calculation; factfinding for enhancements: clear error (United States v. House, 872 F.3d 748 (6th Cir. 2017); United States v. Terry, 83 F.4th 1039 (6th Cir. 2023); United States v. Taylor, 85 F.4th 386 (6th Cir. 2023)).
- Unpreserved procedural claims: plain error (United States v. Simpson, 138 F.4th 438 (6th Cir. 2025)).
Enhancements: - § 2D1.1(b)(13) (fentanyl misrepresented/marketed as another substance): application supported by admissions and circumstantial indicators (e.g., pill appearance and stamping), consistent with unpublished but persuasive Sixth Circuit reasoning (United States v. Allen, 2022 WL 7980905 (6th Cir. Oct. 14, 2022)).
- § 3B1.1(a) (organizer/leader): Not all commentary factors are required; evidence of decision-making, delegation, tracking of proceeds, and direction of others will suffice (United States v. Castilla-Lugo, 699 F.3d 454 (6th Cir. 2012); United States v. Shanklin, 924 F.3d 905 (6th Cir. 2019)).
Special Conditions of Supervised Release (18 U.S.C. § 3583(d)): The panel’s approval of a condition requiring payments toward a prior restitution order draws on Sixth Circuit authority endorsing conditions that protect the public and deter recidivism (United States v. May, 568 F.3d 597 (6th Cir. 2009)) and aligns with other circuits upholding conditions to pay existing restitution balances (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)). United States v. Church, 731 F.3d 530 (6th Cir. 2013) did not preclude such conditions because Church concerned third-party restitution recipients, not enforcement of an existing restitution judgment.

Legal Reasoning by Defendant

I. Radovic

The district court calculated a 30–37 month range (OL 13; CHC V) but varied upward to 57 months to account for violent recidivism, commission of the offense while on state supervision, and unscored conduct. The panel emphasized:

Courts may place heavy weight on deterrence and public safety under § 3553(a)(2)(B)–(C).
Reliance on criminal history—even if already scored—can be independently relevant to the § 3553(a) calculus (Lee; United States v. Morris, 71 F.4th 475 (6th Cir. 2023)).
Because the case lay outside the Guidelines “heartland,” a variance attracted “greatest respect” (United States v. Boucher, 937 F.3d 702 (6th Cir. 2019)).

Substantive reasonableness review is deferential. The thorough rationale provided a “sufficiently compelling” justification for the variance (Gall; Perez-Rodriguez).

II. Wright

Wright’s procedural challenges failed under plain error review. The district court:

Was not required to provide notice of an upward variance (Coppenger).
Relied on the PSR—so facts were not a “surprise.” Wright had the opportunity to respond (see also United States v. Hinton, 2021 WL 5505498).
Did not violate the plea agreement by rejecting the stipulated range; stipulations were non-binding (Robbins). The court made no binding promise of leniency for “staying out of trouble.”

On substance, the district court could weigh criminal history heavily (United States v. Gates, 48 F.4th 463 (6th Cir. 2022)). Its explanation—prior incarcerations did not deter, and public protection was needed—sufficed. The denial of the minor-role reduction stands, and Wright did not prevail on any sentencing claim.

III. Kerney

The central issue was the four-level enhancement for “knowingly misrepresenting or knowingly marketing as another substance a mixture or substance containing fentanyl.” U.S.S.G. § 2D1.1(b)(13). The district court’s factfinding was not clearly erroneous:

Kerney admitted the pills were “fake percs,” knew they contained fentanyl, and described cutting fentanyl with powdered sugar to achieve a particular appearance.
Agents observed “M-30” stampings consistent with legitimate Percocet.
Kerney admitted he was selling the pills.

Even without direct sale evidence of those exact pills, the circumstantial record allowed a reasonable inference of misrepresentation/marketing, meeting the preponderance standard (see Allen; Anderson v. Bessemer City, 470 U.S. 564 (1985)). The enhancement and the overall sentence (151 months plus a mandatory consecutive 60 months on § 924(c)) were procedurally sound.

IV. Jackson

The district court started at 37–46 months (OL 19; CHC IV) and imposed 51 months, explaining that Jackson’s multiple DUI incidents (including a hit-and-run shortly after a prior arrest), a drug possession, chronic child-support noncompliance, and significant juvenile history indicated an “extreme danger” to the community. His notice argument was waived for lack of development and would fail under Coppenger in any event. On substance, the court reasonably found this case outside the Guidelines heartland given the distinct public-safety risk and recidivism profile (Kimbrough; Boucher).

V. Sanders

Sanders challenged the validity of his plea and the application of enhancements. The court rejected the Rule 11 attack under plain-error review: the judge did not misstate withdrawal rights, and Sanders confirmed his understanding of the agreement’s terms and appeal waiver. The waiver foreclosed challenge to the two-level “drug premises” enhancement explicitly contemplated by the agreement (see United States v. Smith, 960 F.3d 883 (6th Cir. 2020)).

The four-level organizer/leader enhancement under § 3B1.1(a) remained reviewable and was affirmed. The record showed:

Decision-making authority and direction of others (e.g., instructing a co-conspirator to cook crack).
Maintenance of the operation’s “office” at his home, where he resupplied others and collected proceeds.
Tracking of amounts owed by co-conspirators and demands for payment.
Co-conspirators referring to themselves as his “soldiers.”

Not every § 3B1.1 factor must be established (Castilla-Lugo). The total evidence satisfied the enhancement by a preponderance. With acceptance and substantial-assistance reductions, the court imposed 168 months on Counts 1–7 plus the mandatory consecutive 60 months for the § 924(c) count.

VI. Kahook

The district court calculated 46–57 months (OL 21; CHC III) and varied upward to 78 months, pointing to two prior within-Guidelines federal sentences (46 and 51 months) that failed to deter, numerous state convictions, nonpayment of more than $300,000 in restitution from a prior money-laundering case, and unscored criminal conduct. The panel found the justification “sufficiently compelling” despite the resulting disparity, noting that this was the “rare defendant” with such a record. (The opinion at one point describes a four-level variance, but the recalculated advisory range and narrative reflect a three-level move from OL 21 to OL 24, 63–78 months; the discrepancy does not affect the outcome.)

The court also upheld a special supervised-release condition requiring minimum monthly payments of 10% of gross income toward the outstanding restitution from the prior case. Applying § 3583(d):

Reasonable relation to § 3553(a): The condition promotes deterrence and protects the public in light of Kahook’s pattern of exploiting others and flouting financial obligations.
No greater deprivation than necessary: A percentage-of-income payment is tailored and non-carceral.
Consistency with policy statements: The condition implements—not expands—a pre-existing restitution obligation, aligning with Sixth Circuit precedent (May) and persuasive authority from other circuits (Gill; Love; Mitchell). Church is inapposite.

Impact and Practical Implications

No-Notice Upward Variances: In the Sixth Circuit, defendants should not expect prehearing “notice” of a potential upward variance. The critical question is whether the facts rely on material disclosed in the PSR or otherwise known. Counsel seeking to preserve a “surprise” argument must object and demonstrate the lack of opportunity to respond to new information.
Weighting Criminal History and “Double Counting”: The panel reinforces that district courts may emphasize criminal history—both scored and unscored—when fashioning a sentence under § 3553(a), particularly to address recidivism and protect the public. Appellate courts will not reweigh factors so long as the district court’s explanation is reasoned and connected to statutory purposes.
Plea Practice: Unless a plea is under Rule 11(c)(1)(C) or plainly curtails judicial discretion, stipulations about offense level or the parties’ joint sentencing recommendations do not bind the court. To constrain exposure to enhancements (e.g., § 3B1.1), the written agreement must be explicit—and even then, absent 11(c)(1)(C), the court may impose an enhancement the parties did not contemplate.
Fentanyl “Marketing” Enhancement (§ 2D1.1(b)(13)): Admissions (e.g., referring to “fake percs,” describing pill coloring/cutting practices), pill appearance (M-30 markings), and contextual proof can suffice. The government need not present direct buyer testimony if the circumstantial evidence supports an inference of misrepresentation or marketing.
Organizer/Leader (§ 3B1.1(a)): Courts can find leadership based on decision-making, control over others, directing production, and financial tracking—even absent evidence of recruitment or a larger profit share. Defense strategy should focus on undermining these indicators of control.
Supervised-Release Conditions Enforcing Prior Restitution: The Sixth Circuit’s reasoning confirms district courts’ discretion to require payments toward existing restitution orders as a condition of supervised release in a new case, provided the condition is reasonably related to § 3553(a) factors and does not create a new restitution obligation. Expect more courts to use supervised release to ensure accountability for unpaid financial penalties.

Complex Concepts Simplified

Procedural vs. Substantive Reasonableness: Procedural reasonableness asks whether the court properly calculated the Guidelines, ruled on objections, and explained the sentence. Substantive reasonableness asks whether the length of the sentence is justified by the statutory goals (deterrence, incapacitation, rehabilitation, respect for law) and the defendant’s circumstances.
Upward Variance: A sentence above the advisory Guidelines range. It is permissible if the court gives a specific, compelling rationale linked to § 3553(a), such as heightened recidivism risk or public-safety concerns.
“Double Counting” Criminal History: Using criminal history to calculate the Guidelines and then again to justify an upward variance is not categorically barred. The key is whether the court explains why the history shows additional risk or need for deterrence beyond the Guidelines’ accounting.
“Heartland” of the Guidelines: The Guidelines are designed for typical cases. A case outside the heartland—because of unusual facts or risks—may warrant a variance.
§ 2D1.1(b)(13) (Fentanyl Misrepresentation/Marketing): Adds four offense levels if the defendant knowingly misrepresented or marketed fentanyl as another substance (e.g., counterfeit Percocet). Proof can be circumstantial and include admissions and pill characteristics.
§ 3B1.1(a) (Organizer/Leader): Adds four levels if the defendant led or organized extensive criminal activity. Courts look to decision-making authority, planning, control over others, and scope; no single factor is dispositive, and not all must be present.
Special Conditions of Supervised Release (§ 3583(d)): Conditions must be reasonably related to certain § 3553(a) factors, impose no greater liberty deprivation than necessary, and align with Sentencing Commission policy. Requiring payments toward an existing restitution balance can fit these criteria and is distinct from imposing a new restitution judgment.

Conclusion

United States v. Idris Jackson (consolidated) offers a comprehensive reaffirmation of core sentencing principles in the Sixth Circuit. The panel’s consistent through-line is deference to district courts that anchor their sentencing choices in concrete facts—often found in the PSR—and articulate a clear nexus to § 3553(a). The opinion underscores:

Upward variances need not be pre-noticed and will be sustained where the court explains why the case lies outside the Guidelines’ heartland, especially in the face of persistent recidivism or public-safety risks.
Prior criminal history remains a potent sentencing factor beyond the Guidelines score; arguments against “double counting” will rarely prevail.
The fentanyl “misrepresentation/marketing” enhancement is viable on circumstantial evidence coupled with admissions that show the pills were made and sold to appear as legitimate prescriptions.
Organizer/leader enhancements do not require every guideline factor when the record shows clear decision-making authority and control.
Courts may use supervised-release conditions to ensure compliance with previously imposed restitution orders without creating new restitution obligations.

Although the opinion is not designated for publication, it synthesizes and applies governing Sixth Circuit and Supreme Court authority in ways that will guide district-court sentencing practice and appellate advocacy. For defense counsel, the lesson is to rigorously contest the PSR where appropriate, preserve objections, and, when seeking to limit enhancements or variances, lock in binding plea terms under Rule 11(c)(1)(C) or develop compelling, record-based mitigation tailored to § 3553(a). For prosecutors and courts, the decision affirms a pragmatic, fact-driven approach to tailoring sentences to the risks posed by individual defendants and to enforcing financial accountability through supervised release.