NOT RECOMMENDED FOR PUBLICATION File Name: 23a0467n.06
Case No. 22-3232
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Nov 09, 2023 ) UNITED STATES OF AMERICA KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF D’ANDRE LATRELL HART, ) OHIO Defendant-Appellant. ) OPINION )
Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. When police searched D’Andre Hart’s home, they found
thousands of dollars in cash, an assortment of drugs, drug-handling equipment, and a stolen Glock.
Based on that evidence, the United States brought drug charges against him. After Hart pled guilty,
the sentencing court applied an upward variance. Hart argues that the variance made his sentence
procedurally and substantively unreasonable. It didn’t, so we affirm.
I.
In August 2020, a Cleveland police informant twice bought crack cocaine from Hart. After
those buys, police secured a warrant and searched Hart’s house. They found oxycodone, cocaine,
and a funnel with drug residue on it. They also found thousands of dollars stashed in a child’s
bedroom. Police arrested Hart, and Cuyahoga County charged him with multiple drug-trafficking
offenses. Hart went free on bond pending trial. Case No. 22-3232, United States v. Hart
Undeterred, Hart continued dealing drugs. Between September 2020 and March 2021—
while his state charges were pending—Hart sold an informant crack cocaine seven more times. So
Cleveland police obtained and executed another search warrant, this time for Hart’s new address.
Three of Hart’s young children were present when police arrived. In the garage, police found
drugs (including fentanyl), thousands of dollars in cash, and a stolen Glock. They found more
drugs and vinyl gloves in Hart’s car.
Based on evidence from the two searches, a federal grand jury indicted Hart for possessing
drugs with the intent to distribute them. Hart pled guilty. At sentencing, the court asked Hart who
his customers were. “Addicts,” Hart responded, not “other dealers.” R. 41, Pg. ID 256. The court
didn’t believe him because, in separate cases, it had heard evidence that Hart was selling to other
dealers. This mattered, the court explained, because selling to dealers is more serious and could
lead to a “much, much longer” sentence. R. 38, Pg. ID 203. But because the court couldn’t
consider evidence beyond Hart’s case, it asked whether the government would introduce that
evidence. The government declined.
The rest of the hearing proceeded uneventfully. The court indicated it might apply an
upward variance based on various aggravating circumstances that the Sentencing Guidelines didn’t
account for. 18 U.S.C. § 3553(b)(1). It set a future date for the parties to respond to the potential
variance.
When sentencing continued, the court again discussed introducing evidence from other
cases. After the government again declined to introduce that evidence, the court acknowledged
that it was limited to “the facts in front of [it]” and put all extraneous information “aside.” R. 38,
Pg. ID 205. Hart could “[r]est assured” that there was “more than enough” in his Presentence
Report (“PSR”) to “fashion an appropriate sentence.” Id. The court also declined the
-2- Case No. 22-3232, United States v. Hart
government’s request to apply an upward departure based on the inadequacy of Hart’s criminal
history. See U.S.S.G. § 4A1.3.
The court ultimately imposed a two-level upward variance based on several aggravating
circumstances under 18 U.S.C. § 3553(a). See U.S.S.G. § 1B1.1 cmt. background. That variance
increased Hart’s Guidelines range from 60–71 months’ imprisonment to 70–87 months. The court
sentenced Hart to 87 months, reiterating that it based the sentence solely on the facts before it and
didn’t consider any evidence outside the record. In fact, the court stated that if it had considered
extraneous information, it would have imposed a higher sentence or denied Hart’s acceptance of
responsibility—an acceptance that the court explicitly considered revoking, but ultimately did not.
At the conclusion of the hearing, Hart objected to the variance but didn’t identify any specific
errors. He now appeals.
II.
We review a district court’s sentence for reasonableness. See United States v. Booker, 543
U.S. 220, 260–62 (2005). Reasonableness has a process-based procedural component and a
length-based substantive component. See Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Rayyan, 885 F.3d 436, 440, 442 (6th Cir. 2018). Hart argues that his sentence was both
procedurally and substantively unreasonable. It was neither.
A.
Hart first challenges his sentence’s procedural reasonableness. He argues that the district
court improperly relied on information outside his PSR—namely, that he was selling to dealers—
when it sentenced him. Because he lodged only a general objection to his sentence before the
district court, we review this challenge for plain error. United States v. Hatcher, 947 F.3d 383,
389 (6th Cir. 2020).
-3- Case No. 22-3232, United States v. Hart
A court commits procedural error if it relies on erroneous or irrelevant information when
imposing a sentence. See United States v. Aguilar-Calvo, 945 F.3d 464, 466 (6th Cir. 2019). No
such reliance occurred here.
How do we know? For starters, the district court said so; it stated that it sentenced Hart
based strictly on his PSR. It didn’t consider “other conduct” from “another case.” R. 38, Pg. ID
216. It assured Hart that there was “more than enough” material in his PSR to “fashion an
appropriate sentence.” Id. at 205. And as we explain below, it methodically applied the § 3553(a)
factors to show the variance was necessary. In sum, the district court “explicitly disclaimed
reliance” on any extraneous information, and nothing in the sentencing transcript undermines that
disclaimer. Aguilar-Calvo, 945 F.3d at 469. Hart’s sentence was procedurally reasonable, and no
error—plain or otherwise—occurred.
Hart resists this conclusion, pointing to the district court’s statement that he was “involved
in drug trafficking at a relatively high level.” R. 38, Pg. ID 210. That assertion, in Hart’s view,
could only have come from extraneous knowledge that Hart was selling to dealers. But one need
not know Hart’s clientele to know he was running a major operation. As the court noted, police
seized tens of thousands of dollars, several types of drugs, a stolen gun, vinyl gloves, and a funnel.
That is evidence of a drug distribution business beyond mere street dealing. Cf. United States v.
Ham, 628 F.3d 801, 808 (6th Cir. 2011) (explaining that a large quantity of drugs, guns, and cash
are evidence of drug trafficking).
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0467n.06
Case No. 22-3232
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Nov 09, 2023 ) UNITED STATES OF AMERICA KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF D’ANDRE LATRELL HART, ) OHIO Defendant-Appellant. ) OPINION )
Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. When police searched D’Andre Hart’s home, they found
thousands of dollars in cash, an assortment of drugs, drug-handling equipment, and a stolen Glock.
Based on that evidence, the United States brought drug charges against him. After Hart pled guilty,
the sentencing court applied an upward variance. Hart argues that the variance made his sentence
procedurally and substantively unreasonable. It didn’t, so we affirm.
I.
In August 2020, a Cleveland police informant twice bought crack cocaine from Hart. After
those buys, police secured a warrant and searched Hart’s house. They found oxycodone, cocaine,
and a funnel with drug residue on it. They also found thousands of dollars stashed in a child’s
bedroom. Police arrested Hart, and Cuyahoga County charged him with multiple drug-trafficking
offenses. Hart went free on bond pending trial. Case No. 22-3232, United States v. Hart
Undeterred, Hart continued dealing drugs. Between September 2020 and March 2021—
while his state charges were pending—Hart sold an informant crack cocaine seven more times. So
Cleveland police obtained and executed another search warrant, this time for Hart’s new address.
Three of Hart’s young children were present when police arrived. In the garage, police found
drugs (including fentanyl), thousands of dollars in cash, and a stolen Glock. They found more
drugs and vinyl gloves in Hart’s car.
Based on evidence from the two searches, a federal grand jury indicted Hart for possessing
drugs with the intent to distribute them. Hart pled guilty. At sentencing, the court asked Hart who
his customers were. “Addicts,” Hart responded, not “other dealers.” R. 41, Pg. ID 256. The court
didn’t believe him because, in separate cases, it had heard evidence that Hart was selling to other
dealers. This mattered, the court explained, because selling to dealers is more serious and could
lead to a “much, much longer” sentence. R. 38, Pg. ID 203. But because the court couldn’t
consider evidence beyond Hart’s case, it asked whether the government would introduce that
evidence. The government declined.
The rest of the hearing proceeded uneventfully. The court indicated it might apply an
upward variance based on various aggravating circumstances that the Sentencing Guidelines didn’t
account for. 18 U.S.C. § 3553(b)(1). It set a future date for the parties to respond to the potential
variance.
When sentencing continued, the court again discussed introducing evidence from other
cases. After the government again declined to introduce that evidence, the court acknowledged
that it was limited to “the facts in front of [it]” and put all extraneous information “aside.” R. 38,
Pg. ID 205. Hart could “[r]est assured” that there was “more than enough” in his Presentence
Report (“PSR”) to “fashion an appropriate sentence.” Id. The court also declined the
-2- Case No. 22-3232, United States v. Hart
government’s request to apply an upward departure based on the inadequacy of Hart’s criminal
history. See U.S.S.G. § 4A1.3.
The court ultimately imposed a two-level upward variance based on several aggravating
circumstances under 18 U.S.C. § 3553(a). See U.S.S.G. § 1B1.1 cmt. background. That variance
increased Hart’s Guidelines range from 60–71 months’ imprisonment to 70–87 months. The court
sentenced Hart to 87 months, reiterating that it based the sentence solely on the facts before it and
didn’t consider any evidence outside the record. In fact, the court stated that if it had considered
extraneous information, it would have imposed a higher sentence or denied Hart’s acceptance of
responsibility—an acceptance that the court explicitly considered revoking, but ultimately did not.
At the conclusion of the hearing, Hart objected to the variance but didn’t identify any specific
errors. He now appeals.
II.
We review a district court’s sentence for reasonableness. See United States v. Booker, 543
U.S. 220, 260–62 (2005). Reasonableness has a process-based procedural component and a
length-based substantive component. See Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Rayyan, 885 F.3d 436, 440, 442 (6th Cir. 2018). Hart argues that his sentence was both
procedurally and substantively unreasonable. It was neither.
A.
Hart first challenges his sentence’s procedural reasonableness. He argues that the district
court improperly relied on information outside his PSR—namely, that he was selling to dealers—
when it sentenced him. Because he lodged only a general objection to his sentence before the
district court, we review this challenge for plain error. United States v. Hatcher, 947 F.3d 383,
389 (6th Cir. 2020).
-3- Case No. 22-3232, United States v. Hart
A court commits procedural error if it relies on erroneous or irrelevant information when
imposing a sentence. See United States v. Aguilar-Calvo, 945 F.3d 464, 466 (6th Cir. 2019). No
such reliance occurred here.
How do we know? For starters, the district court said so; it stated that it sentenced Hart
based strictly on his PSR. It didn’t consider “other conduct” from “another case.” R. 38, Pg. ID
216. It assured Hart that there was “more than enough” material in his PSR to “fashion an
appropriate sentence.” Id. at 205. And as we explain below, it methodically applied the § 3553(a)
factors to show the variance was necessary. In sum, the district court “explicitly disclaimed
reliance” on any extraneous information, and nothing in the sentencing transcript undermines that
disclaimer. Aguilar-Calvo, 945 F.3d at 469. Hart’s sentence was procedurally reasonable, and no
error—plain or otherwise—occurred.
Hart resists this conclusion, pointing to the district court’s statement that he was “involved
in drug trafficking at a relatively high level.” R. 38, Pg. ID 210. That assertion, in Hart’s view,
could only have come from extraneous knowledge that Hart was selling to dealers. But one need
not know Hart’s clientele to know he was running a major operation. As the court noted, police
seized tens of thousands of dollars, several types of drugs, a stolen gun, vinyl gloves, and a funnel.
That is evidence of a drug distribution business beyond mere street dealing. Cf. United States v.
Ham, 628 F.3d 801, 808 (6th Cir. 2011) (explaining that a large quantity of drugs, guns, and cash
are evidence of drug trafficking). Hart, moreover, continued trafficking dangerous drugs while
under indictment for that very crime. That is not the stuff of a low-level peddler, and the district
court didn’t err in concluding as much.
-4- Case No. 22-3232, United States v. Hart
B.
Hart next argues that his sentence was substantively unreasonable. Although we review
that challenge under the slightly more forgiving abuse-of-discretion standard, it fares no better.
United States v. Peppel, 707 F.3d 627, 633–34 (6th Cir. 2013) (limiting plain-error review on
substantive-reasonableness challenges to “situations in which the failure to raise arguments below
is flagrant”). The district court neither “base[d] the sentence on impermissible factors” nor gave
“an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d
508, 520 (6th Cir. 2008).
Indeed, the district court marched through the relevant § 3553(a) factors and explained why
a variance was necessary. See Rita v. United States, 551 U.S. 338, 344 (2007) (explaining that
“application of the sentencing factors set forth in 18 U.S.C. § 3553(a)” may warrant a variance
based on considerations “independent of the Guidelines”); United States v. Husein, 478 F.3d 318,
329–31 (6th Cir. 2007). It began with “the nature and circumstances of the offense.” 18 U.S.C.
§ 3553(a)(1). As the court explained, Hart continued selling drugs even after Cuyahoga County
indicted him on drug charges. Because the Guidelines don’t address such immediate recidivism,
the court deemed an upward variance necessary to meet the increased need for deterrence. Id.
§ 3553(a)(2)(B). Hart, moreover, possessed particularly harmful drugs, stored cash in his child’s
bedroom, and kept the tools of his illicit trade in the same house as his children. The Guidelines
address neither the unique danger of opioids nor Hart’s child endangerment. Finally, the court
cited Hart’s stolen gun, explaining that the Guidelines don’t cover use of a stolen gun in a drug
offense, necessitating an upward variance.
The court then considered the other relevant § 3553(a) factors. It considered Hart’s
criminal history and individual characteristics—specifically his prior trafficking and misdemeanor
-5- Case No. 22-3232, United States v. Hart
convictions. See id. § 3553(a)(1). Next, the court ensured that any sentencing disparity between
Hart and similar offenders was appropriate. See id. § 3553(a)(2), (6). Lastly, it noted the unique
public danger of fentanyl, emphasizing both the seriousness of the offense and the need to protect
the public from Hart’s future crimes. See id. § 3553(a)(2)(A), (C). Nowhere in this discussion did
the court mention that Hart was selling to dealers. Nor did it need to, as Hart’s record alone
supplied enough material to justify the variance. In sum, the district court carefully set forth the
reasons for its sentence, linking facts from the PSR directly to the relevant § 3553(a) factors to
explain why the variance was necessary. And it repeatedly assured Hart that it was only
considering properly admitted information. The variance was thus substantively reasonable.
In response, Hart argues that the court abused its discretion by relying on two specific
factors: the stolen Glock and the unique danger of fentanyl. He also argues that he didn’t have a
chance to respond to the factors on which the court based its variance. He’s wrong on all three
points.
Start with the gun. It’s true that when a defendant uses a stolen gun in a firearm offense,
the Guidelines suggest a two-level enhancement. See U.S.S.G. § 2K2.1(b)(4). The drug-offense
Guidelines suggest no such enhancement. See U.S.S.G. § 2D1.1(b). That omission, Hart argues,
indicates that the Sentencing Commission didn’t want courts to consider whether a gun was stolen
in non-firearm offenses. But that’s not how variances work. The point of a variance is to account
for aggravating (or mitigating) circumstances the Guidelines don’t recognize. See 18 U.S.C.
§ 3553(b)(1); see also Kimbrough v. United States, 552 U.S. 85, 101–02 (2007). Because the
Guidelines don’t provide a stolen-gun enhancement for drug offenses, the district court was free
to consider that fact in a variance.
-6- Case No. 22-3232, United States v. Hart
Next, the fentanyl. Hart is correct that the Guidelines account for a drug’s dangerousness
by applying the same offense level to lower masses of some drugs and higher masses of others.
See U.S.S.G. § 2D1.1(c). But the court considered more than fentanyl’s danger in the abstract; it
highlighted the drug’s disastrous effect on Cuyahoga County. And a district court does not abuse
its discretion in varying upward based on “the effect of the opioid epidemic in Ohio.” United
States v. Robinson, 892 F.3d 209, 215 (6th Cir. 2018). The court thus appropriately considered
the tragedy of fentanyl in enhancing Hart’s sentence.
Finally, Hart had a full opportunity to respond to the variance. Not only did the court
expressly call for objections, but it continued the sentencing hearing to allow Hart to respond. See
United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). And Hart took the opportunity,
making several arguments why the variance shouldn’t apply. His unfair-surprise argument thus
rings hollow.
We affirm.
-7-