United States v. Gray – Sixth Circuit Clarifies Rule 32(h) Notice Standards and the Scope of Waiver Following an Unconditional Guilty Plea

Introduction

On 15 August 2025 the United States Court of Appeals for the Sixth Circuit delivered its unpublished opinion in United States v. Tyjuan Devon Gray (Nos. 24-1507/1553/1577). The consolidated appeals arose from two separate federal prosecutions:

Assault on a federal nurse practitioner while in pre-trial detention – 18 U.S.C. § 111(a)(1) & (b); and
Felon-in-possession of a firearm – 18 U.S.C. § 922(g)(1).

Mr Gray challenged both convictions and the sentences imposed (120 months and 41 months, respectively). He also advanced ineffective-assistance claims. The panel (Judges Moore, Griffin, and Nalbandian; opinion by Judge Griffin) affirmed in all respects and dismissed the ineffective-assistance claims without prejudice.

Although labelled “Not Recommended for Publication,” the decision packs a significant doctrinal punch in three areas:

Rule 32(h) notice requirements for upward Guideline departures;
The extent to which district courts must explain consecutive sentences and file public statements of reasons; and
Whether a court taking an unconditional guilty plea must advise the defendant that he thereby forfeits appellate review of earlier suppression rulings.

Summary of the Judgment

The Sixth Circuit ruled as follows:

Assault Case – Sentence of 120 months affirmed.
• Four-level bodily-injury enhancement under USSG § 2A2.2(b)(3)(D) was proper.
• District court gave a sufficient § 3553(a) explanation, properly departed upward under USSG §§ 5K2.2 & 5K2.3, and was not required to provide earlier or written public notice beyond what occurred.
• Departure of five months above the 92-115-month range was procedurally and substantively reasonable.
Firearm Case – Sentence of 41 months (top of 33-41-month range), to run consecutive to the assault sentence, affirmed.
• Competency finding was not clearly erroneous; no additional hearing required.
• Unconditional guilty plea was knowing and voluntary despite the court’s failure to warn that appeal of the denial of suppression was waived.
• District court adequately justified the consecutive nature of the sentence.
Ineffective Assistance – Claims dismissed without prejudice to a future § 2255 motion because any deficiency was not “apparent from the record.”

Analysis

Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007) – Anchor for abuse-of-discretion review of sentences and the distinction between “variance” and “departure.”
Irizarry v. United States, 553 U.S. 708 (2008) – Holds Rule 32(h) notice is required only for departures, not variances. The panel applies Irizarry and finds no plain error where factual circumstances supplied “reasonable notice.”
United States v. Vasquez-Martinez, 616 F.3d 600 (6th Cir. 2010) – Reaffirmed to conclude no Rule 11 duty to warn that an unconditional plea waives suppression appeal.
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc) – Governs plain-error review and content of sentencing explanations.
United States v. Flores, 974 F.3d 763 (6th Cir. 2020) and United States v. Bellis, 2024 WL 1212859 (6th Cir.) – Provide definitions of “bodily” vs. “serious” bodily injury relevant to the four-level enhancement.

Legal Reasoning

Bodily-Injury Enhancement – The court interpreted “traumatic incomplete tear” and multi-month medical treatment as falling between “bodily” and “serious” injury, justifying § 2A2.2(b)(3)(D)’s four-level hike.
Upward Departure without Formal Notice
• Because the record repeatedly highlighted the victim’s ongoing physical and psychological trauma, “reasonable notice” existed.
• No plain error without a showing of how advance notice would have changed the outcome (Korson standard).
Rule 11 and Waiver of Suppression Appeal
• Court reiterates that Rule 11(b)(1)(N) concerns waiver of future appellate rights contained in plea agreements—not implicit waivers of past rulings.
• Burden rests on the defendant, via Rule 11(a)(2), to enter a conditional plea if preservation of a suppression issue is desired.
Competency Determination – The panel upholds summary acceptance of a 19-page forensic report absent any contrary evidence; competency hearings need not be evidentiary when neither party disputes the report.
Consecutive Sentencing – The district court’s single integrated § 3553(a) discussion satisfied § 3584(b); heightened emphasis on Gray’s “escalating conduct” justified stacking the sentences.

Impact of the Decision

Although unpublished, Gray fortifies existing Sixth Circuit doctrine and offers practical guidance for bench and bar:

Rule 32(h) Practice – Parties should not assume a court’s silence on departures within the PSR equals lack of notice; pervasive record evidence can itself suffice.
Plea-Colloquy Advisements – District courts remain under no affirmative duty to remind defendants that by pleading unconditionally they forfeit appellate review of past suppression rulings.
Statement-of-Reasons Filing – A sealed “AO-245B” form submitted to the Sentencing Commission meets § 3553(c)(2); public docketing is optional, not mandatory.
Bodily-Injury Spectrum – The case illustrates how shoulder tears requiring imaging and steroid injections, though not “serious,” go beyond mere “bodily” injury, triggering the four-level mid-tier enhancement.
Ineffective-Assistance Timing – The panel’s dismissal underscores that direct appeals remain a poor vehicle for IAC claims unless the record is fully developed.

Complex Concepts Simplified

Variance vs. Departure – A “departure” derives from a specific Guideline provision (e.g., § 5K2.2), whereas a “variance” rests on the court’s discretion under statutory factors (§ 3553(a)). Different notice rules apply.
Rule 32(h) – Requires advance warning if the court plans a Guideline departure on a ground not previously identified. If the PSR, filings, or hearing evidence put everyone on notice, no separate alert is needed.
Plain-Error Review – Four-part test: (1) error; (2) plain/obvious; (3) affects substantial rights (outcome); (4) seriously affects fairness or integrity of proceedings. Failure on any prong defeats the claim.
Unconditional vs. Conditional Plea – An unconditional plea admits guilt and waives nearly all pre-trial issues. A conditional plea (Rule 11(a)(2)) preserves identified issues for appeal, but must be explicit and accepted by the court.
§ 3553(c) Statement of Reasons – A confidential form explaining the sentence that is transmitted to the Sentencing Commission; it need not be docketed publicly.

Conclusion

United States v. Gray may not be citable precedent under Sixth Circuit Rule 32.1(b), yet it sharpens vital procedural edges:

The reasonable-notice requirement of Rule 32(h) is context-driven; robust factual records can obviate formal notice of an upward departure.
District courts have no obligation to caution defendants that unconditional pleas extinguish suppression appeals; the onus lies with counsel to request a conditional plea.
Submitting, but not publicly filing, a statement of reasons satisfies § 3553(c)(2).
Medical documentation of moderate yet enduring injuries supports the four-level “mid-range” bodily-injury enhancement.

For practitioners, the message is clear: vigilantly preserve issues by motion and conditional plea, monitor the record for “constructive notice” of potential departures, and develop ineffectiveness claims in post-conviction proceedings where a full evidentiary record can be built.