United States v. Joshua Brown: Clarifying When a Superseding Indictment Is NOT Presumptively Vindictive in the Sixth Circuit

Introduction

United States v. Joshua Brown (No. 24-5199, 6th Cir. 2025) is a multi-faceted criminal appeal arising from a large methamphetamine network stretching from Atlanta, Georgia, to Shelbyville, Tennessee. The Sixth Circuit, in an unpublished but analytically rich opinion, grappled with three principal issues:

1. Whether the Government’s decision to file a superseding indictment adding substantive drug counts—after Brown successfully suppressed an un-Mirandized confession—was “presumptively vindictive.”
2. Whether Brown’s within–Guidelines 216-month sentence was procedurally unreasonable for failure to consider (a) disparities among codefendants and (b) national sentencing data.
3. Whether the district court relied on clearly erroneous facts concerning Brown’s custodial status.

The panel (Judge Suhrheinrich for the Court; Judge Nalbandian concurring; Judge Moore concurring in part) ultimately affirmed Brown’s convictions and sentence. The decision provides important guidance on prosecutorial vindictiveness, sentencing disparities, and how Miranda-barred statements may still influence sentencing.

Summary of the Judgment

• Superseding Indictment: The Court held—under plain-error review—that adding three methamphetamine distribution counts, which did not increase Brown’s statutory or Guidelines exposure, did not create a realistic likelihood of vindictiveness.
• Sentencing: The district court gave a sufficiently reasoned explanation for the 216-month sentence, adequately addressing both codefendant and national disparity arguments. There was no procedural error in relying on Brown’s suppressed confession for drug-quantity findings at sentencing, and no improper use of incorrect custody credit information.
• Result: Convictions and sentence AFFIRMED.

Detailed Analysis

A. Precedents Cited and Their Influence

1. United States v. Goodwin, 457 U.S. 368 (1982) – foundational standard for prosecutorial vindictiveness. Brown’s panel applied Goodwin’s caution against “inflexible” presumptions in the pre-trial context.
2. United States v. LaDeau, 734 F.3d 561 (6th Cir. 2013) & United States v. Zakhari, 85 F.4th 367 (6th Cir. 2023) – prior 6th-Circuit cases where the Court did find a rebuttable presumption of vindictiveness after new charges increased exposure. Brown distinguishes these because the new counts did not worsen exposure.
3. United States v. Howell, 17 F.4th 673 (6th Cir. 2021) – relied on to show that if a superseding indictment leaves statutory maxima/minima unchanged, presumptive vindictiveness is unlikely.
4. United States v. Cordero, 973 F.3d 603 (6th Cir. 2020) & United States v. Havis, 927 F.3d 382 (6th Cir. 2019) – key to why the original single “conspiracy” charge would not qualify Brown as a career offender, but the added “distribution” charges would. Yet, because of the large drug quantities, his ultimate offense level was identical either way.
5. Gall v. United States, 552 U.S. 38 (2007) & Rita v. United States, 551 U.S. 338 (2007) – governing frameworks for procedural reasonableness and the need for sentencing explanations.

B. The Court’s Legal Reasoning

1. Standard of Review: Plain Error
   Brown did not file a motion to dismiss on vindictiveness; counsel conceded at oral argument the issue was unpreserved. Thus, Brown had to show an “obvious” error affecting substantial rights, plus an effect on the integrity of the proceedings—an exacting hurdle.
2. Two-Prong Vindictiveness Test
   Under Goodwin/Andrews, a defendant must demonstrate (i) the prosecutor had a “stake” in deterring the exercise of a right and (ii) the charging decision was unreasonable. The panel acknowledged Brown’s suppression motion removed “invaluable” evidence (his confession) but concluded:
   • The Government’s stake was muted because the new counts did not increase mandatory minima or maxima and therefore did not appear retaliatory.
   • Prosecutorial discretion in complex conspiracies is broad; multi-defendant dynamics and evolving cooperation can justify timing changes.
   Hence no “realistic likelihood” of vindictiveness.
3. Sentencing Disparities
   The district court expressly compared Brown to the most culpable co-defendant (Johns) and explained why a slightly lower sentence than Johns was appropriate. Because § 3553(a)(6) is aimed at national disparities, not intra-conspiracy uniformity, the court was not required to equalize every defendant’s sentence.
4. Use of Suppressed Statement at Sentencing
   Echoing Sixth-Circuit precedent, Miranda does not bar use of voluntary statements for sentencing purposes. The panel reaffirmed United States v. Graham-Wright, 715 F.3d 598.
5. Custody Credit Issue
   Errors (if any) regarding Brown’s loan-status under a habeas corpus ad prosequendum writ did not amount to clear error; only BOP—not the sentencing court—calculates § 3585(b) credit.

C. Impact on Future Litigation

Although designated “not recommended for publication,” the decision signals how Sixth-Circuit panels are likely to treat vindictiveness arguments when:

• The superseding indictment does not raise statutory penalties or the applicable Guidelines range; and
• The timing, while suspicious, is still within ordinary pre-trial adjustment windows.

Practitioners should anticipate that suppression victories alone will not create a vindictiveness presumption unless the new charges materially worsen exposure. Prosecutors, conversely, may view Brown as tacit approval to shore up indictments—provided the modifications do not enhance sentencing stakes.

Complex Concepts Simplified

Superseding Indictment

A new indictment that replaces an earlier one, often adding or dropping charges.

Prosecutorial Vindictiveness

The unconstitutional practice of punishing a defendant for exercising a legal right (e.g., filing a motion, insisting on trial) by upping the ante with harsher charges.

Plain-Error Review

An appellate standard applied when an issue was not preserved below. The appellant must show an obvious error that affected the outcome and the fairness of the proceedings.

Career Offender Designation (U.S.S.G. § 4B1.1)

A status that sharply increases a defendant’s offense level if (1) age ≥ 18, (2) the instant offense is a felony drug or violent crime, and (3) the defendant has two prior qualifying felonies.

Habeas Corpus ad prosequendum

A writ used to bring a state prisoner temporarily into federal custody for prosecution; the state keeps “primary jurisdiction,” so the time does not automatically count toward a federal sentence.

Conclusion

United States v. Joshua Brown refines Sixth-Circuit doctrine on when a superseding indictment will (and will not) trigger a presumption of prosecutorial vindictiveness. The key take-home rule: no presumption arises where the additional counts leave both the statutory ceiling and the Guidelines range untouched.

The decision also reiterates that:

• Sentencing courts are not compelled to equalize codefendant sentences; national disparity is the § 3553(a)(6) touchstone.
• Miranda-suppressed statements can be used for relevant-conduct findings at sentencing.
• The Bureau of Prisons—not the district court—determines pre-sentence custody credits.

Overall, Brown underscores how procedural posture (e.g., failure to preserve objections) and the practical effect of charging amendments shape appellate outcomes. Defense counsel should therefore object promptly to potential vindictiveness and quantify any real-world increase in exposure; prosecutors, for their part, are reminded that additions which do heighten exposure must be justified with clear, on-the-record reasons to survive future challenges.