“Reasonable Notice” Redefined: The Sixth Circuit’s Flexible Approach to Rule 32(h) Upward Departures in United States v. Tyjuan Devon Gray

Introduction

On 15 August 2025, the United States Court of Appeals for the Sixth Circuit issued its unpublished opinion in United States v. Tyjuan Devon Gray, Nos. 24-1507/1553/1577. Although unpublished, the decision articulates important guidance on three recurring federal-criminal-procedure problems:

1. what counts as “reasonable notice” under Federal Rule of Criminal Procedure 32(h) when a district court departs upward from the Sentencing Guidelines,
2. whether Rule 11 or due-process doctrine obliges a court to advise a defendant that an unconditional guilty plea forfeits appellate review of a pre-trial suppression ruling, and
3. how much process is required before finding a defendant competent under 18 U.S.C. § 4241.

Defendant–appellant Tyjuan Devon Gray pleaded guilty without plea agreements to (1) assaulting, resisting, or impeding a federal officer with bodily injury, and (2) being a felon in possession of a firearm (FIPF). He received an above-Guidelines sentence of 120 months for the assault and a within-Guidelines 41-month, consecutive sentence for the firearm offense. On appeal Gray attacked both sentences as procedurally and substantively unreasonable, alleged inadequate competency procedures, challenged the knowingness of his plea, and asserted ineffective assistance of counsel.

Summary of the Judgment

The Sixth Circuit (Judges Moore, Griffin, and Nalbandian; opinion by Judge Griffin) affirmed the district court in all respects and dismissed the ineffective-assistance claims without prejudice. Key holdings include:

• The district court’s sua sponte upward departure—without pre-hearing written notice—did not amount to plain error because extensive record materials provided “reasonable notice” that such a departure was possible (Rule 32(h) clarified).
• Rule 11 does not require a district court to inform a defendant that an unconditional guilty plea forfeits appellate review of an adverse suppression ruling; the onus lies on the defendant to enter a conditional plea under Rule 11(a)(2).
• A brief competency hearing, plus a thorough psychological report and the court’s own observations, satisfied § 4241; no extended evidentiary hearing was required absent contrary evidence.
• The court’s Guidelines calculations, § 3553(a) analysis, justification for an upward departure, and decision to impose consecutive terms were all procedurally sound; the sentences were substantively reasonable.

Analytical Commentary

A. Precedents Cited and Their Influence

• Gall v. United States, 552 U.S. 38 (2007)
  Provided the abuse-of-discretion framework for appellate review and the requirement that departures be adequately explained.
• Irizarry v. United States, 553 U.S. 708 (2008)
  Distinguishes upward departures (Rule 32(h) notice required) from variances (no notice). Gray’s sentence involved a true departure under §§ 5K2.2 & 5K2.3, therefore Rule 32(h) applied.
• United States v. Meeker, 411 F.3d 736 (6th Cir. 2005)
  Articulated a contextual, “cumulative evidence” approach to what counts as reasonable notice—central to upholding the departure here.
• United States v. Vasquez-Martinez, 616 F.3d 600 (6th Cir. 2010)
  Held that an unconditional plea waives suppression issues and that Rule 11 does not obligate the court to warn defendants of that consequence. The Gray panel follows and reinforces this rule.
• United States v. Dubrule, 822 F.3d 866 (6th Cir. 2016) & United States v. Heard, 762 F.3d 538 (6th Cir. 2014)
  Provide standards for reviewing competency findings and decisions to convene evidentiary hearings.

B. Legal Reasoning

1. Rule 32(h) Notice for Upward Departures
   • Rule 32(h) requires “reasonable notice” when the court contemplates departing on a ground not previously identified in the PSR or parties’ filings.
   • The panel held that extensive references to the victim’s prolonged physical and psychological injuries—in the PSR, government memorandum, and live testimony—supplied de facto notice.
   • Because Gray raised no contemporaneous objection, review was for plain error; the court found none, noting lack of prejudice—Gray did not spell out what he would have done differently with earlier notice.
2. Bodily-Injury Enhancement (§ 2A2.2(b)(3))
   • The nurse’s “traumatic incomplete rotator-cuff tear,” treatment spanning months, and lasting pain justified the intermediate four-level increase under subsection (D).
   • The court distinguished Sixth Circuit precedents applying only the three-level “bodily injury” increase, emphasizing the presence here of continuing medical intervention.
3. § 3553(a) Explanation & Upward Departure
   • Record showed the district court acknowledged Gray’s mental health but found aggravating factors—custodial setting, predatory strangulation, enduring victim trauma—outweighed them.
   • Five-month deviation above the 92–115-month range deemed “modest,” thus requiring a less comprehensive justification than a major variance.
4. Competency Finding
   • A 19-page single-spaced psychiatric report concluded competence.
   • No party offered evidence to the contrary, so a full evidentiary hearing was unnecessary; the court’s on-the-record acceptance satisfied § 4241.
5. Plea-Colloquy Requirements
   • Rule 11(b)(1) enumerates items of which defendants must be advised; forfeiture of suppression-issue appellate rights is not among them.
   • The decision reinforces that defendants (and counsel) must affirmatively invoke Rule 11(a)(2) for a conditional plea.
6. Consecutive versus Concurrent Sentencing
   • Relying on § 3584 and Berry/King precedent, the panel held that the district court may intertwine its total-length and concurrency analysis.
   • The court focused on Gray’s escalation while on pre-trial release and the need for incremental punishment to protect the public.

C. Practical & Doctrinal Impact

• Flexible Rule 32(h) Standard
  Appellate courts within the Sixth Circuit will likely treat lack-of-notice arguments skeptically, especially under plain-error review, where the record already spotlighted departure-triggering facts.
• Re-emphasis on Conditional Pleas
  Defense counsel must proactively negotiate or invoke Rule 11(a)(2) if they intend to preserve suppression issues; courts are not obliged to remind them.
• Streamlined Competency Proceedings
  When neither side contests a forensic examiner’s finding of competence, cursory hearings pass muster, reducing litigation friction in busy district courts.
• Victim Impact Beyond Guideline Enhancements
  The opinion underscores that § 5K2.2/5K2.3 departures remain available even after bodily-injury enhancements if lingering physical or psychological harm is shown—inviting prosecutors to marshal detailed victim-impact proofs.

Complex Concepts Simplified

• Departure vs. Variance
  A departure is an adjustment ordered under a specific Guideline policy statement (e.g., § 5K2.x). A variance is a court’s discretionary sentence outside the range for policy reasons rooted in § 3553(a). Only departures trigger Rule 32(h) notice.
• Plain-Error Review
  Four-part test: (1) error, (2) obvious, (3) affects substantial rights (prejudice), and (4) harms judicial integrity. If any element fails, the claim loses.
• Conditional Plea (Rule 11(a)(2))
  Allows a defendant to plead guilty yet preserve appeal of specified pre-trial rulings. Must be explicit, in writing or on the record, and consented to by court and government.
• Competency Under § 4241
  A defendant must be able to understand proceedings and assist counsel. A single psychiatric report plus the judge’s observation can suffice if unchallenged.

Conclusion

United States v. Tyjuan Devon Gray adds forceful clarification to three procedural hinge points in federal criminal practice. First, “reasonable notice” for Rule 32(h) departures is contextual and may be satisfied by the cumulative record, diminishing the likelihood of reversals in the absence of contemporaneous objections and demonstrable prejudice. Second, district courts are under no Rule 11 duty to coach defendants on the strategic value of conditional pleas; that responsibility rests with defense counsel. Third, the opinion endorses a streamlined approach to competency determinations when uncontroverted expert reports are before the court. Together, the holdings solidify a pragmatic, efficiency-oriented stance within the Sixth Circuit, signaling to practitioners the critical importance of early, precise objections and proactive plea structuring if they hope to preserve issues for appellate review.