Using Supervised Release to Enforce Prior Restitution and Clarifying the Fentanyl “Misrepresentation” Enhancement: Commentary on United States v. Algyn Kerney (6th Cir. 2025)

Introduction

In this consolidated, unpublished decision from the United States Court of Appeals for the Sixth Circuit, six defendants—Ronnie Radovic, Corey Wright, Algyn Kerney, Idris Jackson, Alfred Sanders, and Nasser Kahook—challenged their sentences arising from a large-scale methamphetamine and fentanyl conspiracy centered in Akron, Ohio. Each appellant raised distinct procedural and/or substantive sentencing issues. The panel (Judges Batchelder, Clay, and Bloomekatz) affirmed across the board.

Although “not recommended for publication,” the opinion is significant in two ways. First, it cements within the Sixth Circuit’s jurisprudence that a district court may, as a special condition of supervised release under 18 U.S.C. § 3583(d), require a defendant to make payments toward a restitution balance arising from an earlier, unrelated case—so long as the condition does not impose a new restitution obligation and is reasonably related to § 3553(a) factors. Second, it provides guidance on the § 2D1.1(b)(13) Guidelines enhancement for “knowingly misrepresenting or marketing as another substance a mixture or substance containing fentanyl,” underscoring that circumstantial evidence and a defendant’s admissions can suffice even absent proof of actual sales of the “fake” product.

The opinion also reiterates settled Sixth Circuit law on upward variances (no advance notice is required so long as the facts are not a surprise, and courts may give heavy weight to recidivism and unscored conduct) and on leadership enhancements under § 3B1.1(a).

Summary of the Opinion

Radovic (No. 24-3308): Upward variance from 30–37 months to 57 months affirmed as substantively reasonable based on violent recidivism, commission while on supervision, and unscored conduct.
Wright (No. 24-3309): Procedural challenges to notice and plea stipulations rejected; upward variance to 57 months affirmed as substantively reasonable given violent criminal history starting at age 17.
Kerney (No. 24-3364): Four-level enhancement under U.S.S.G. § 2D1.1(b)(13) for marketing fentanyl as Percocet upheld; 211-month aggregate sentence affirmed.
Jackson (No. 24-3389): One-level upward variance to 51 months affirmed; “notice” argument waived and meritless; district court sufficiently explained departure from “mine-run” case based on DUI history and recidivism risk.
Sanders (No. 24-3400): Appellate waiver enforced as to drug-premises enhancement; leadership enhancement under § 3B1.1(a) sustained; sentence of 168 months plus 60 months consecutive on § 924(c) affirmed; guilty plea upheld.
Kahook (No. 24-3438): Upward variance to 78 months affirmed; special condition of supervised release requiring payments toward a prior restitution order sustained under § 3583(d).

Analysis

I. Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007): Frames substantive reasonableness review and the requirement of a “sufficiently compelling” justification for variances. The panel uses Gall to evaluate above-Guidelines sentences without presuming unreasonableness.
Kimbrough v. United States, 552 U.S. 85 (2007): Introduces the “heartland” concept—the idea that Guidelines target mine-run cases. The court invoked Kimbrough to sustain upward variances where unscored conduct and recidivism place the case outside the heartland.
United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020): Requires “sufficiently compelling” evidence for variances and suggests closer review when variances create disparities; applied but satisfied here.
United States v. Lee, 974 F.3d 670 (6th Cir. 2020): Confirms that “double counting” criminal history for variance purposes is not prohibited and may be appropriate; used repeatedly to uphold above-Guidelines sentences premised on recidivism and risk.
United States v. Boucher, 937 F.3d 702 (6th Cir. 2019): Notes that sentences outside the Guidelines in non-mine-run cases “attract greatest respect.” The panel leans on this to support deference to district court judgments.
United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015) and progeny (Hinton; Rossi): Establish no requirement of advance notice for an upward variance so long as facts relied upon are not a “surprise.” Applied to reject Wright’s and Jackson’s notice claims.
United States v. Taylor, 85 F.4th 386 (6th Cir. 2023); United States v. Terry, 83 F.4th 1039 (6th Cir. 2023); United States v. House, 872 F.3d 748 (6th Cir. 2017): Set standards for enhancement review (legal issues de novo; factfinding for clear error). These guide the analysis of Kerney’s § 2D1.1(b)(13) and Sanders’s § 3B1.1(a) challenges.
United States v. Allen, No. 21-3900, 2022 WL 7980905 (6th Cir. Oct. 14, 2022): Allows circumstantial evidence to support the fentanyl “misrepresentation” enhancement; relied upon to affirm Kerney’s enhancement in the absence of direct sales evidence.
Anderson v. Bessemer City, 470 U.S. 564 (1985): Articulates clear-error deference—where two permissible views exist, the trial court’s choice stands; used to affirm the district court’s factual inferences against Kerney.
United States v. Barcus, 892 F.3d 228 (6th Cir. 2018); United States v. Carter, 463 F.3d 526 (6th Cir. 2006): Framework for supervised release conditions (procedural and substantive “dimensions” and the § 3583(d) three-part test). Employed in sustaining the special condition imposed on Kahook.
United States v. May, 568 F.3d 597 (6th Cir. 2009): Upholds a supervised release condition requiring payment toward an outstanding obligation owed to a state AG, emphasizing probation’s twin goals (public protection and discouraging recidivism). The panel analogizes May to uphold requiring payments on a prior federal restitution order.
Other circuits on prior restitution as supervised-release condition: 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). These cases support the Sixth Circuit’s now-clarified approval of such conditions.
United States v. Church, 731 F.3d 530 (6th Cir. 2013): Distinguished (concerned third-party restitution, not enforcement of a prior restitution order through supervised release).
United States v. Robbins, 240 F. App’x 684 (6th Cir. 2007): Confirms sentencing stipulations in plea agreements do not bind the district court; defeats Wright’s argument that variance “eviscerated” his plea.
United States v. Castilla-Lugo, 699 F.3d 454 (6th Cir. 2012); United States v. Shanklin, 924 F.3d 905 (6th Cir. 2019): Leadership enhancement standards and deference inform approval of § 3B1.1(a) in Sanders’s case.

II. The Court’s Legal Reasoning

A. Upward Variances and Criminal History (Radovic, Wright, Jackson, Kahook)

Across four appeals, the panel applied a uniform set of principles:

Start with a correctly calculated Guidelines range; variances outside the range are not presumptively unreasonable but must be “sufficiently compelling” (Gall; Perez-Rodriguez).
District courts may give heavy weight to recidivism, the efficacy (or lack thereof) of prior sentences, and public-safety concerns; they may consider unscored criminal conduct when deciding whether a case lies outside the “heartland” (Kimbrough; Lee; Boucher).
“Double counting” criminal history—reconsidering it under § 3553(a) after it was already reflected in the Guidelines—is permissible in appropriate cases (Lee).
No procedural error in failing to give advance notice of an upward variance absent surprise facts; reliance on a PSR the defendant reviewed suffices (Coppenger; Hinton; Rossi).

Applying these principles:

Radovic: A four-level upward variance to 57 months was justified by a uniquely violent and persistent record, participation while on supervised release, and unscored conduct demonstrating heightened recidivism and public risk.
Wright: The district court denied a minor-participant adjustment and varied upward due to a life-long pattern of serious violence and crime beginning with a homicide at age 17. Notice and “broken promise” procedural arguments failed; plea stipulations did not bind the court, and the court made no promises.
Jackson: A modest upward variance (five months above the top of the range) was warranted in light of extensive DUI-related conduct (including a hit-and-run two weeks after a DUI arrest), child-support failures, and drug possession—placing the case outside the “mine-run.”
Kahook: A 21-month upward variance (from 57 to 78 months) was sustained. The court underscored multiple prior within-Guidelines federal sentences that failed to deter, unpaid restitution from a prior federal case, and abundant unscored conduct—all signaling exceptional recidivism risk.

B. The Fentanyl “Misrepresentation” Enhancement (§ 2D1.1(b)(13)) (Kerney)

The district court imposed the four-level enhancement for “knowingly misrepresenting or marketing as another substance a mixture or substance containing fentanyl,” finding that:

Kerney admitted the pills were “fake percs,”
He described cutting fentanyl with powdered sugar to achieve the Percocet-like color,
The pills were stamped “M-30,” a legitimate Percocet marker, and
He admitted he was selling the pills.

The Sixth Circuit held that, on a preponderance standard, this circumstantial record permitted the inference that Kerney marketed or represented the fentanyl pills as genuine Percocet, even without direct evidence of completed sales. The panel relied on its unpublished decision in Allen approving circumstantial proof, and deferred to the district court’s reasonable view of the evidence under Anderson.

C. Leadership Enhancement (§ 3B1.1(a)) and Appellate Waiver (Sanders)

Sanders’s plea agreement acknowledged the two-level drug-premises enhancement but did not stipulate to a leadership enhancement. The district court found he qualified as an “organizer or leader” of a criminal activity involving at least five participants or that was otherwise extensive.

The record showed Sanders:

Maintained “the office” (his home) for resupply and proceeds collection,
Kept records of monies owed by co-conspirators,
Directed a co-conspirator to cook crack on his behalf, and
Was referred to by co-conspirators as their leader (“soldiers”).

The panel emphasized that § 3B1.1(a)’s factors (e.g., recruitment, taking a larger share) are non-exhaustive and need not all be present. It deferred to the district court’s factual determinations (clear-error review) and affirmed. As to the two-level drug-premises enhancement, the appellate waiver in the valid plea agreement foreclosed review.

D. Special Condition of Supervised Release to Pay Prior Restitution (Kahook)

The district court required, as a condition of supervised release, that Kahook pay at least 10% of his gross monthly income toward a six-figure restitution balance from a prior federal money-laundering/illegal gambling/bribery case. The Sixth Circuit upheld this condition under the substantive prong of § 3583(d):

Reasonably related to § 3553(a): It served deterrence and protection-of-the-public goals, especially given a pattern of exploiting the community and ignoring lawful obligations.
No greater deprivation than necessary: The condition targeted a preexisting, lawful obligation, without creating a new restitution duty in the instant case.
Consistency with policy statements: Aligned with the Sentencing Commission’s framework and Sixth Circuit precedent emphasizing probation’s twin goals (May; Bortels).

In so holding, the panel distinguished Church (involving third-party restitution payment mechanics) and aligned Sixth Circuit practice with the Second, Fifth, and Tenth Circuits (Gill, Love, Mitchell), which authorize supervised-release conditions requiring payment on prior restitution judgments so long as no new restitution obligation is imposed.

III. Impact

Supervised release as an enforcement tool: Within the Sixth Circuit, district courts now have clear appellate support for using supervised release to require payments toward previously imposed restitution orders from other cases. This is a potent compliance lever in recidivist cases where defendants have ignored long-standing financial obligations to victims.
Fentanyl “fake pill” prosecutions: The decision confirms that the § 2D1.1(b)(13) enhancement can be sustained through circumstantial evidence and the defendant’s admissions—even absent proof of actual sales—where counterfeit indicia (e.g., M-30 stamping) and marketing intent are present. Expect more frequent use of this enhancement in counterfeit-pill prosecutions.
Upward variances grounded in recidivism: The opinion reinforces that upward variances can rest on persistent criminality, ineffectiveness of prior sentences, and unscored conduct—even if criminal history has already been calculated—without constituting impermissible “double counting.” Counsel should prepare robust mitigation on deterrence and public-safety factors.
Notice for variances: The Sixth Circuit reiterates that advance notice is not required for variances, provided defendants had an opportunity to confront the facts (typically via the PSR). Litigants must object to PSR facts concretely or risk “no surprise” findings.
Leadership enhancement proof: The panel underscores that a leader/organizer finding does not require every § 3B1.1 factor; evidence of command/control, tasking others, and centralized collections can suffice.
Plea practice: Appellate waivers covering stipulated enhancements will be enforced; silence in the plea agreement on other potential enhancements does not foreclose their application. Defendants should be advised that stipulations are not binding on the court.

Complex Concepts Simplified

Procedural vs. Substantive Reasonableness:
- Procedural addresses how the sentence was reached: correct Guidelines calculation, proper consideration of § 3553(a), resolving factual disputes, and explaining the sentence.
- Substantive addresses what the sentence is: whether its length is justified under § 3553(a) and not greater than necessary.
Upward Variance vs. Departure:
- Variance: A sentence outside the advisory range based on § 3553(a) factors.
- Departure: A Guidelines-based adjustment predicated on specific policy statements. This opinion concerns variances.
“Heartland” of the Guidelines: The Guidelines aim to cover typical cases. A case can justify variance if it is atypical (e.g., persistent recidivism, unscored violence), making the range inadequate.
“Double Counting” Criminal History: Not prohibited when a court revisits criminal history under § 3553(a) to assess deterrence and public safety after it has already informed the Guidelines calculation.
§ 2D1.1(b)(13) Fentanyl Misrepresentation: Adds four levels when defendants knowingly present fentanyl as another drug (e.g., Percocet). Proof may be circumstantial (fake pill stamps, admissions, cutting agents) and does not require completed sales.
§ 3B1.1(a) Leadership Enhancement: Adds four levels if the defendant was an organizer/leader of activity with 5+ participants or otherwise extensive. Courts weigh decision-making authority, planning, control over others, but need not find each factor.
Supervised Release Conditions (§ 3583(d)): Special conditions must be reasonably related to certain § 3553(a) factors, involve no greater liberty deprivation than necessary, and be consistent with Sentencing Commission policy. They can require payment toward prior restitution without creating new restitution obligations.
Plain Error Review: On unpreserved objections, appellants must show an obvious error affecting substantial rights and the integrity of the proceedings. This demanding standard often defeats late-raised notice claims.
Safety Valve: In drug cases, eligible defendants receive offense-level reductions and relief from certain mandatory minimums. Jackson received a two-level safety-valve reduction.
18 U.S.C. § 924(c): Imposes mandatory consecutive sentences for possessing a firearm in furtherance of drug trafficking crimes—accounting for Kerney’s and Sanders’s additional five-year consecutive terms.

Defendant-by-Defendant Detail

1) United States v. Radovic (No. 24-3308)

Issue: Substantive reasonableness of a four-level upward variance to 57 months (Guidelines 30–37).

Holding: Affirmed. The court reasonably emphasized specific and general deterrence, violent recidivism, offending while on supervision, and unscored conduct. “Double counting” permissible.

Reasoning: The district court gave a sufficiently compelling justification tied to § 3553(a)(1), (2)(B)-(C), explaining why the case exceeded the heartland. Appellate review defers to this balancing (Gall; Boucher; Lee).

2) United States v. Wright (No. 24-3309)

Issues: (a) Procedural: Lack of notice of upward variance; court’s failure to honor plea stipulation; (b) Substantive: Overweighting criminal history; alleged “promise” about staying out of trouble.

Holdings: (a) No procedural error; notice not required, no surprise facts (PSR-based). Plea stipulations are non-binding. (b) Substantive challenge fails; violent, persistent past justified variance.

Reasoning: Wright had ample opportunity to contest PSR facts; the court made no promises. Emphasis on criminal history is permissible (Gates; Robbins; Coppenger).

3) United States v. Kerney (No. 24-3364)

Issue: Procedural reasonableness—application of § 2D1.1(b)(13) “misrepresentation” enhancement.

Holding: Affirmed. The district court did not clearly err in finding Kerney marketed fentanyl pills as Percocet, based on admissions, counterfeit stamping, and production methods.

Reasoning: Circumstantial evidence can satisfy the preponderance standard; direct sales proof not required (Allen; Anderson; Taylor/Terry standards of review). Aggregate 211-month sentence was within the court’s discretion.

4) United States v. Jackson (No. 24-3389)

Issues: Procedural (notice) and substantive reasonableness of a one-level upward variance to 51 months.

Holdings: Notice argument waived and meritless (no surprise facts); upward variance justified by extensive DUI-related history, child-support nonpayment, and prior drug offense—placing the case outside the heartland.

Reasoning: The court provided “sufficiently compelling” reasons and acknowledged disparities, distinguishing Jackson’s atypical risk profile (Coppenger; Kimbrough; Perez-Rodriguez).

5) United States v. Sanders (No. 24-3400)

Issues: Validity of plea (ability to withdraw) and procedural reasonableness regarding enhancements (drug premises and leadership).

Holdings: Plea valid; court accurately conveyed that sentencing dissatisfaction is not grounds to withdraw. Appellate waiver bars challenge to the two-level premises enhancement; four-level leadership enhancement properly applied.

Reasoning: The record showed centralized control, direction of others, and collection of proceeds. Not all § 3B1.1 factors are required (Castilla-Lugo; Shanklin). Clear-error review applied.

6) United States v. Kahook (No. 24-3438)

Issues: Substantive reasonableness of a four-level upward variance to 78 months; propriety of a supervised-release condition requiring payments toward prior restitution.

Holdings: Upward variance affirmed based on repeated failure of prior sentences to deter and unscored conduct. Special condition affirmed under § 3583(d) as reasonably related to deterrence and public protection and not imposing a new restitution duty.

Reasoning: The court aligned with other circuits (Gill; Love; Mitchell) and Sixth Circuit principles (May; Barcus; Carter) in approving enforcement of existing restitution via supervised release.

Practice Pointers and Strategic Notes

When seeking to avoid an upward variance, address deterrence head-on: document post-offense rehabilitation, compliance during pre-sentencing, and any payment toward outstanding obligations (e.g., restitution).
Object specifically to PSR facts; generalized objections risk “no surprise” findings for variance purposes.
In counterfeit-pill cases, prepare to litigate § 2D1.1(b)(13): challenge indicia of misrepresentation (stamps, packaging, admissions) and consider expert testimony on pill markings and market representations.
Plea agreements should explicitly address anticipated role adjustments and enhancements; otherwise, defendants remain exposed to PSR-recommended enhancements not foreclosed by the plea.
Supervised-release conditions can—and likely will—be used to enforce prior financial judgments. Defendants with outstanding restitution should anticipate payment conditions calibrated to income.

Conclusion

The Sixth Circuit’s decision in United States v. Algyn Kerney (and consolidated appeals) reinforces a sentencing landscape in which district courts have substantial discretion to vary upward based on persistent recidivism, unscored conduct, and public-safety concerns; to apply the fentanyl “misrepresentation” enhancement on circumstantial proof and admissions; and to impose a supervised-release condition requiring payments toward a preexisting restitution judgment from a different case. While nonprecedential, the opinion harmonizes Sixth Circuit practice with other circuits on supervised-release enforcement of prior restitution and provides practical guidance on how the court views counterfeit-pill prosecutions and leadership findings. The throughline is deterrence: defendants with entrenched criminal histories and unfulfilled legal obligations should expect heightened sentences and robust post-custody compliance conditions designed to protect the public and promote lawful conduct.