Rule 32(h) Notice and Unconditional-Plea Waiver Clarified: Commentary on United States v. Tyjuan Devon Gray, Nos. 24-1507/1553/1577 (6th Cir. Aug. 15, 2025)

I. Introduction

The consolidated appeal in United States v. Tyjuan Devon Gray allowed the Sixth Circuit to address a mosaic of recurrent criminal-procedure questions—ranging from sentencing departures and competency determinations to guilty-plea colloquies and ineffective assistance of counsel. Though designated “Not Recommended for Publication,” the opinion is already resonating with district courts and practitioners because it clarifies two practical but frequently litigated points:

1. When, and to what extent, Federal Rule of Criminal Procedure 32(h) requires advance notice before a court departs upward from the Sentencing Guidelines; and
2. Whether a district judge must affirmatively warn a defendant that an unconditional guilty plea forfeits appeal of an adverse suppression ruling.

The defendant, Tyjuan Gray, faced (1) an assault-on-a-federal-employee indictment after strangling a nurse practitioner at FDC Milan, and (2) an earlier felon-in-possession charge arising from a Detroit block party. He pleaded guilty in both cases without negotiated plea agreements and received consecutive terms totalling 161 months (120 + 41). On appeal he raised procedural and substantive sentencing challenges, competency arguments, Rule 11 colloquy issues, and claims of ineffective assistance.

II. Summary of the Judgment

• Sentencing (Assault Case): Guideline range 92–115 months; court imposed 120 months. Sixth Circuit found (a) four-level bodily-injury enhancement proper; (b) § 3553(a) discussion adequate; (c) five-month upward departure permissible under §§ 5K2.2 & 5K2.3 without plain-error in notice; and (d) sentence substantively reasonable.
• Sentencing (Firearm Case): Guideline range 33–41 months; court imposed 41 months consecutive. The panel affirmed procedural and substantive reasonableness of both the term and the decision to run it consecutively.
• Competency & Rule 11: Competency finding upheld; no constitutional or Rule 11 error in failing to warn Gray that an unconditional plea waived appeal of the suppression ruling.
• Ineffective Assistance: Dismissed without prejudice to a future § 2255 motion because not apparent on the record.

III. Analysis

A. Precedents Cited and Their Influence

1. Gall v. United States, 552 U.S. 38 (2007) – supplied the abuse-of-discretion framework for both procedural and substantive sentencing review.
2. United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018) – reiterated what constitutes procedural reasonableness; heavily cited for checklist of requirements.
3. Irizarry v. United States, 553 U.S. 708 (2008) & United States v. Grams, 566 F.3d 683 (6th Cir. 2009) – drew the departure/variance distinction critical to deciding whether Rule 32(h) notice was triggered.
4. Vonner (en banc), 516 F.3d 382 – established plain-error prism when defendant fails to contemporaneously object to sentencing explanation.
5. Vasquez-Martinez, 616 F.3d 600 – squarely foreclosed Gray’s argument about Rule 11 advising on suppression-appeal waiver.
6. Strickland, 466 U.S. 668 – set the ineffective-assistance standard; panel used it to justify deferring claims to § 2255.

B. Legal Reasoning of the Court

1. Rule 32(h) Notice

The district court departed upward under Guidelines §§ 5K2.2 (significant physical injury) and 5K2.3 (extraordinary psychological injury). Because the PSR and the Government had not explicitly requested departure, Rule 32(h) notice was theoretically required. The panel nevertheless found no plain error because the cumulative record—victim-impact statements, medical reports, and the Government’s emphasis on enduring trauma—gave “reasonable notice” of a possible departure. Importantly, the Court reaffirmed that:

“Reasonableness of notice is context-specific; where the evidence of departure grounds is woven throughout pre-sentencing filings, ‘notice at the hearing may suffice.’”

This articulation narrows the practical reach of Rule 32(h) and will likely limit future reversals premised on surprise departures, shifting the burden to defendants to object contemporaneously.

2. Unconditional Plea and Suppression-Appeal Waiver

Gray contended his plea was invalid because he was never told it would forfeit appeal of the suppression ruling. The Sixth Circuit stressed that Rule 11(b)(1)(N) mandates advice only where a plea agreement contains a waiver of future appellate rights—typically sentence appeals. By contrast, preservation of past pre-trial issues is the defendant’s obligation under Rule 11(a)(2). The Court, citing Vasquez-Martinez, found no error, much less plain error, in the district court’s colloquy.

3. Competency Determination

Even though the competency hearing was perfunctory, the panel emphasized that § 4241 does not prescribe a specific length or format. Where the psychological report is uncontested and defense counsel offers no contrary evidence, a brief on-the-record endorsement suffices. The Court applied clear-error review and found none.

4. Sentencing Explanations and Consecutive Terms

The panel treated the five-month departure as “minor,” requiring less exhaustive justification under Gall. As for the consecutive firearm sentence, reliance on Gray’s “escalating criminal conduct” satisfied § 3553(a) without the need for a separate factor-by-factor analysis, consistent with Berry and King.

C. Likely Impact of the Decision

• Rule 32(h) Doctrine: District judges in the Sixth Circuit gain confidence that robust record development—especially victim-impact evidence—can substitute for formal advance notice. Defense counsel must preserve contemporaneous objections or lose the issue on plain-error review.
• Plea-Colloquy Practice: The Court’s reaffirmation that judges need not warn about suppression-appeal waivers streamlines Rule 11 colloquies and disincentivizes defendants from attacking pleas on this ground.
• Competency Hearings: The decision signals that an uncontested psychological report will rarely require an evidentiary hearing, placing the onus on counsel to proffer contrary evidence.
• Victim-Impact Departure Theory: By approving an upward departure despite already-applied bodily-injury enhancements, the Court implicitly endorses layering departures where emotional or prolonged physical harm exceeds guideline calibrations.

IV. Complex Concepts Simplified

• Guideline “Departure” vs. “Variance”: A departure arises from a discrete Guideline provision authorizing movement outside the range (e.g., § 5K2.2). A variance is a non-Guidelines, discretionary deviation under § 3553(a). Only departures trigger Rule 32(h) notice.
• Plain-Error Review: When a party fails to object at trial/sentencing, appellate courts look for (1) error, (2) obviousness, (3) effect on substantial rights, and (4) effect on the integrity of proceedings. Missing any element means no reversal.
• Conditional Plea (Rule 11(a)(2)): A plea that reserves a specific pre-trial issue (like suppression) for appeal. Must be explicit, in writing, and accepted by the court. An unconditional plea, by default, waives such issues.
• Competency Standard (18 U.S.C. § 4241(d)): Defendant must understand the nature and consequences of the proceedings and be able to assist counsel. Evaluation often turns on expert psychiatric reports.

V. Conclusion

Although unpublished, United States v. Gray meaningfully refines Sixth Circuit jurisprudence in three intersecting areas: (1) the threshold of “reasonable notice” under Rule 32(h), (2) the boundaries of a judge’s Rule 11 advisory duties concerning suppression-issue forfeiture, and (3) the sufficiency of cursory competency hearings when expert evaluations stand uncontested. The Court’s decision tilts the procedural balance toward finality by tightening defendants’ ability to obtain relief for alleged notice and colloquy shortcomings—unless timely objections are lodged. Sentencing judges receive implicit validation for modest upward departures anchored in victim-impact evidence, so long as they articulate how § 3553(a) considerations make the otherwise-applicable guideline penalties inadequate. Practitioners would therefore be wise to (a) preserve objections to potential departures, (b) insist on conditional pleas when suppression issues remain alive, and (c) proffer concrete competency evidence if disagreement with expert reports exists. Ultimately, Gray underscores yet again that procedural vigilance at the trial level is the surest safeguard of appellate rights.