Sixth Circuit Re-Affirms Broad Discretion for Upward Variances When the Defendant Commits New Crimes While Incarcerated & After Escape – Commentary on United States v. Alex Robinson (2025)

Introduction

Case Overview. In United States v. Alex Robinson, the Court of Appeals for the Sixth Circuit faced a challenge to the substantive reasonableness of an 84-month sentence—24 months above the 60-month mandatory-minimum/Guidelines sentence—for conspiring to distribute fentanyl. The defendant, already serving 180 months for a prior cocaine-base conspiracy, trafficked drugs from inside prison, escaped from a work camp, and continued trafficking while a fugitive. The district court imposed the 84-month term, to run consecutively to Robinson’s other sentences. Robinson appealed, arguing that the upward variance was excessive and unsupported by the 18 U.S.C. § 3553(a) factors.

Key Issues.

• Does continued criminal conduct while incarcerated and after escape place a drug-trafficking case “outside the heartland,” justifying an upward variance?
• May a district court assign additional weight to a defendant’s criminal history and need for deterrence even when the Guidelines already account for those factors?
• Does a presidential commutation of an entirely separate sentence moot an appeal of the un-commuted sentence?

Parties. The United States (Appellee) argued for affirmance; Alex Robinson (Appellant) sought reduction of his sentence.

Summary of the Judgment

Analysis

Precedents Cited & Their Influence

• Gall v. United States, 552 U.S. 38 (2007) – Provides the abuse-of-discretion framework and totality-of-circumstances test for reviewing variances. The panel relied heavily on Gall’s mandate that appellate courts give “due deference” to sentencing judges.
• Tristan-Madrigal, 601 F.3d 629 (6th Cir. 2010) – Defines the “essence” of substantive-reasonableness review (“greater than necessary”). Used to restate the standard.
• Lee, 974 F.3d 670 (6th Cir. 2020) – Clarifies that a sentence is substantively unreasonable if it is “too long.” Serves as doctrinal backdrop.
• Thomas, 933 F.3d 605 (6th Cir. 2019) – Emphasizes the “high bar” a defendant faces to overturn an upward variance.
• Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020) – Requires a “more compelling justification” for larger variances. The panel measured the 24-month variance against this yardstick.
• Dunnican, 961 F.3d 859 (6th Cir. 2020) – Rejects the claim that criminal history cannot be double-counted. Central to rejecting Robinson’s main argument.
• Hymes, 19 F.4th 928 (6th Cir. 2021) – Directs courts to rely on the Guidelines rather than statistical reports when evaluating disparity. Used to dismiss Robinson’s reliance on national medians.
• Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548 (6th Cir. 2021) – States the appellant’s “heavy burden” to demonstrate mootness. Applied to the commutation question.

Legal Reasoning of the Court

1. Totality of Circumstances. The panel accepted the district court’s narrative that Robinson’s conduct was extraordinary in four respects: (i) trafficking from inside prison; (ii) an actual escape; (iii) continued trafficking post-escape; and (iv) the deadly nature of fentanyl. Collectively, these facts rendered the 60-month guideline inadequate.
2. Criminal History Under-Representation. Robinson had only three criminal-history points (Category II) because most of his prior convictions were outside the 15-year look-back or otherwise scored zero. The Guidelines thus, in the district court’s view, “flattened” the seriousness and “progressive nature” of his record. The Sixth Circuit agreed that § 3553(a)(1) permits a court to look beyond the numeric score.
3. Deterrence. The panel acknowledged the district court’s skepticism about specific deterrence (“15 years didn’t slow you down”) but endorsed its emphasis on general deterrence, particularly given the fentanyl epidemic within the district.
4. Sentencing Disparity. Robinson’s statistical comparisons were deemed less persuasive than the advisory Guidelines benchmark, consistent with Hymes.
5. Mootness & the Commutation. Even though President Biden commuted one of Robinson’s sentences, the panel held that (a) the warrant’s text covered only the 180-month cocaine sentence, (b) the website’s ambiguity did not satisfy the defendant’s burden to prove mootness, and (c) the appeal therefore remained live.

Impact of the Decision

• Prison-Based and Escape-Related Conduct. The opinion cements the Sixth Circuit’s willingness to treat in-custody trafficking and post-escape conduct as aggravating factors warranting substantive upward variances.
• Criminal History “Double Counting.” The panel’s reliance on Dunnican underscores that a low criminal-history category need not preclude an upward variance when the record is qualitatively worse than the score suggests.
• Weight of Statistical Sentencing Data. By reaffirming Hymes, the court signals that litigants should focus on Guideline comparisons, not Sentencing Commission medians, when arguing disparity.
• Clemency and Appellate Jurisdiction. The discussion on commutation, though dicta-like, provides guidance: partial clemency does not automatically moot an unresolved appeal concerning un-commuted sentences.
• Practical Sentencing Advocacy. Defense counsel confronting upward-variance risks must (i) prepare individualized arguments distinguishing their client from the “Robinson pattern,” and (ii) supply more than raw statistics to address § 3553(a)(6).

Complex Concepts Simplified

• Substantive Reasonableness. A sentence is “substantively unreasonable” if it is too harsh (or too lenient) in light of the statutory sentencing factors. The appellate focus is on length, not procedural errors.
• Guidelines “Heartland.” The Sentencing Guidelines contemplate “typical” cases. When facts push a case outside that heartland (e.g., crime committed while serving a sentence), courts may vary upward or downward.
• Upward Variance vs. Departure. An “upward departure” uses explicit Guideline provisions; an “upward variance” relies on § 3553(a) factors to move above the advisory range. Robinson’s sentence is a variance.
• Mandatory Minimum. Certain drug quantities trigger minimum sentences Congress set. Here, 40 g of fentanyl = 60-month statutory floor, which also became the effective “Guideline sentence” under USSG § 5G1.1.
• Commutation vs. Pardon. A commutation shortens or terminates a sentence but does not nullify the conviction. It applies only to the sentence specified in the presidential warrant.

Conclusion

United States v. Alex Robinson supplies a pointed lesson in how extraordinary recidivism—committing the same kind of offense from prison and continuing post-escape—can justify a significant upward variance. The Sixth Circuit’s endorsement of the district court’s reasoning reinforces three broader themes: (1) sentencing judges retain substantial flexibility to assess qualitative aspects of a defendant’s criminal history; (2) data-driven disparity arguments must be grounded in Guideline comparisons; and (3) partial presidential clemency does not automatically divest an appellate court of jurisdiction.

Going forward, practitioners should expect Sixth Circuit panels to defer to district courts that lay out fact-specific, proportional justifications for variances, especially where the defendant’s conduct shows a “profound lack of respect for the law.” The decision also signals that the fentanyl crisis and prison-based criminal activity will continue to attract heightened sentences aimed at general deterrence.