NOT RECOMMENDED FOR PUBLICATION File Name: 23a0305n.06
Case No. 22-3320
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Jul 06, 2023 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) RASHAWN MOTEN, NORTHERN DISTRICT OF OHIO ) Defendant - Appellant. ) OPINION )
Before: MOORE, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Rashawn Moten pled guilty to various drug and
firearms offenses. At sentencing, the district court varied upward from the advisory Guidelines
range relying, in part, on Moten’s role in getting his intellectually disabled eighteen-year-old co-
defendant involved in the drug trafficking conspiracy. On appeal, Moten argues that his sentence
was procedurally unreasonable because he was not aware of the grounds upon which the district
court would rely. Because Moten’s argument is belied by the record, we affirm.
I.
Rashawn Moten, Dwain McGhee, and Da’von Marvell Bascomb engaged in a drug
trafficking conspiracy, which included distribution of heroin, fluorofentanyl, fentanyl,
methamphetamine, and cocaine. The trio were caught after engaging in multiple drug sales to
undercover officers. No. 22-3320, United States v. Moten
Moten pled guilty to one count of conspiracy to distribute controlled substances, five
counts of distribution of controlled substances, two counts of possession with intent to distribute
controlled substances, and one count of possession of a firearm as a felon. In his plea agreement,
Moten acknowledged that the district court retained the right to depart from the advisory
Guidelines range, but Moten reserved the right to appeal any sentence in excess of that range. The
Presentence Investigation Report (“PSR”) placed Moten in Criminal History Category IV and
calculated an offense level of 19, resulting in an advisory Guidelines range of 46 to 57 months.
Moten’s sentencing occurred across three separate hearings. During the first hearing on
January 25, 2022, the court inquired about the dynamic among Moten, McGhee, and Bascomb.
Counsel for the government explained that Moten was “essentially the most culpable of all the
defendants,” with McGhee only present at two of the drug sales and Bascomb “involved . . . for a
small number, if not just one single event.” DE 96, Sentencing Tr., Page ID 588. The court then
questioned how Bascomb became involved in the conspiracy, as he was eighteen years old and in
high school at the time the crimes were committed, while Moten was thirty-four years old. Neither
party could provide an answer for how Bascomb became involved. The court explained that it
would be unsealing portions of Bascomb’s PSR related to his “personal challenges regarding his
own mental faculties and/or limitations.” Id. at Page ID 591. The court further notified Moten
that it was considering an upward variance because the Guidelines did not account for “someone
who may be the leader or organizer of the [criminal] activity taking advantage purportedly of a
young man at this tender age” and with “at least some educational difficulties.” Id. Another
sentencing hearing was scheduled so that Moten’s counsel could review Bascomb’s partially
unsealed PSR and determine if counsel wanted to make any response or objection. The court
-2- No. 22-3320, United States v. Moten
further invited Moten’s counsel to attend a hearing for Bascomb so that he could observe Bascomb
in person.
The next sentencing hearing occurred on March 8, 2022. The parties and the court agreed
with the PSR that the Guidelines range was 46 to 57 months. The court then notified Moten that
it was “contemplat[ing] an upward variance for two reasons.” DE 93, Sentencing Tr. Mar. 8, Page
ID 487. The first reason was Moten’s possession and distribution of fentanyl, a particularly deadly
drug in the county where Moten had been selling. The court provided Moten’s counsel with news
articles to support these contentions. The second reason was Moten’s role in bringing Bascomb,
a particularly vulnerable individual because of his age, limited education, and intellectual
disabilities, into the drug operation. After a lengthy discussion about whether an upward variance
was proper, the court continued the sentencing once again in order to give Moten’s counsel
sufficient time to respond to the fentanyl statistics provided by the court. Although Moten’s
counsel protested multiple times that he did not need a continuance and that sentencing could occur
that day, the court insisted on a continuance so that there was no chance that Moten had “been
surprised unfairly.” Id. at Page ID 508-09.
Moten’s final sentencing hearing occurred on April 4, 2022. The court weighed the 18
U.S.C. § 3553 factors and determined that an upward variance was necessary because of the
involvement of fentanyl and Bascomb’s role in the drug operation. The court then sentenced
Moten to 63 months’ imprisonment—a six-month upward variance from the Guidelines range—
to be followed by five years of supervised release. Moten objected to the upward variance and
timely appealed his sentence.
II.
-3- No. 22-3320, United States v. Moten
On appeal, Moten challenges his sentence as procedurally unreasonable. Sentencing
challenges are reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Examples of procedural error include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” United States v. Adkins, 729 F.3d 559, 563 (6th Cir. 2013) (alteration
in original) (quoting Gall, 552 U.S. at 51). Procedural error can also occur when the sentencing
court varies upward based on unforeseeable or surprising factors and fails to give the defendant a
reasonable opportunity to respond. United States v. Coppenger, 775 F.3d 799, 803-04 (6th Cir.
2015).
III.
“There is a ‘long’ and ‘durable’ tradition that sentencing judges ‘enjo[y] discretion in the
sort of information they may consider’ at an initial sentencing proceeding.” Concepcion v. United
States, 142 S. Ct. 2389, 2398 (2022) (alteration in original) (quoting Dean v. United States,
581 U.S. 62, 66 (2017)). In reaching sentencing determinations, federal judges “may appropriately
conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may
consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446
(1972). Despite this broad discretion, a sentencing court must give the defendant notice of any
information it plans to rely upon in sentencing (that is not already contained in the PSR), and “give
[the defendant] a reasonable opportunity to comment on that information.” Fed. R. Crim. P.
32(i)(1)(B); Coppenger, 775 F.3d at 803-04. A defendant must receive “reasonable notice” of the
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0305n.06
Case No. 22-3320
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Jul 06, 2023 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) RASHAWN MOTEN, NORTHERN DISTRICT OF OHIO ) Defendant - Appellant. ) OPINION )
Before: MOORE, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Rashawn Moten pled guilty to various drug and
firearms offenses. At sentencing, the district court varied upward from the advisory Guidelines
range relying, in part, on Moten’s role in getting his intellectually disabled eighteen-year-old co-
defendant involved in the drug trafficking conspiracy. On appeal, Moten argues that his sentence
was procedurally unreasonable because he was not aware of the grounds upon which the district
court would rely. Because Moten’s argument is belied by the record, we affirm.
I.
Rashawn Moten, Dwain McGhee, and Da’von Marvell Bascomb engaged in a drug
trafficking conspiracy, which included distribution of heroin, fluorofentanyl, fentanyl,
methamphetamine, and cocaine. The trio were caught after engaging in multiple drug sales to
undercover officers. No. 22-3320, United States v. Moten
Moten pled guilty to one count of conspiracy to distribute controlled substances, five
counts of distribution of controlled substances, two counts of possession with intent to distribute
controlled substances, and one count of possession of a firearm as a felon. In his plea agreement,
Moten acknowledged that the district court retained the right to depart from the advisory
Guidelines range, but Moten reserved the right to appeal any sentence in excess of that range. The
Presentence Investigation Report (“PSR”) placed Moten in Criminal History Category IV and
calculated an offense level of 19, resulting in an advisory Guidelines range of 46 to 57 months.
Moten’s sentencing occurred across three separate hearings. During the first hearing on
January 25, 2022, the court inquired about the dynamic among Moten, McGhee, and Bascomb.
Counsel for the government explained that Moten was “essentially the most culpable of all the
defendants,” with McGhee only present at two of the drug sales and Bascomb “involved . . . for a
small number, if not just one single event.” DE 96, Sentencing Tr., Page ID 588. The court then
questioned how Bascomb became involved in the conspiracy, as he was eighteen years old and in
high school at the time the crimes were committed, while Moten was thirty-four years old. Neither
party could provide an answer for how Bascomb became involved. The court explained that it
would be unsealing portions of Bascomb’s PSR related to his “personal challenges regarding his
own mental faculties and/or limitations.” Id. at Page ID 591. The court further notified Moten
that it was considering an upward variance because the Guidelines did not account for “someone
who may be the leader or organizer of the [criminal] activity taking advantage purportedly of a
young man at this tender age” and with “at least some educational difficulties.” Id. Another
sentencing hearing was scheduled so that Moten’s counsel could review Bascomb’s partially
unsealed PSR and determine if counsel wanted to make any response or objection. The court
-2- No. 22-3320, United States v. Moten
further invited Moten’s counsel to attend a hearing for Bascomb so that he could observe Bascomb
in person.
The next sentencing hearing occurred on March 8, 2022. The parties and the court agreed
with the PSR that the Guidelines range was 46 to 57 months. The court then notified Moten that
it was “contemplat[ing] an upward variance for two reasons.” DE 93, Sentencing Tr. Mar. 8, Page
ID 487. The first reason was Moten’s possession and distribution of fentanyl, a particularly deadly
drug in the county where Moten had been selling. The court provided Moten’s counsel with news
articles to support these contentions. The second reason was Moten’s role in bringing Bascomb,
a particularly vulnerable individual because of his age, limited education, and intellectual
disabilities, into the drug operation. After a lengthy discussion about whether an upward variance
was proper, the court continued the sentencing once again in order to give Moten’s counsel
sufficient time to respond to the fentanyl statistics provided by the court. Although Moten’s
counsel protested multiple times that he did not need a continuance and that sentencing could occur
that day, the court insisted on a continuance so that there was no chance that Moten had “been
surprised unfairly.” Id. at Page ID 508-09.
Moten’s final sentencing hearing occurred on April 4, 2022. The court weighed the 18
U.S.C. § 3553 factors and determined that an upward variance was necessary because of the
involvement of fentanyl and Bascomb’s role in the drug operation. The court then sentenced
Moten to 63 months’ imprisonment—a six-month upward variance from the Guidelines range—
to be followed by five years of supervised release. Moten objected to the upward variance and
timely appealed his sentence.
II.
-3- No. 22-3320, United States v. Moten
On appeal, Moten challenges his sentence as procedurally unreasonable. Sentencing
challenges are reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Examples of procedural error include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” United States v. Adkins, 729 F.3d 559, 563 (6th Cir. 2013) (alteration
in original) (quoting Gall, 552 U.S. at 51). Procedural error can also occur when the sentencing
court varies upward based on unforeseeable or surprising factors and fails to give the defendant a
reasonable opportunity to respond. United States v. Coppenger, 775 F.3d 799, 803-04 (6th Cir.
2015).
III.
“There is a ‘long’ and ‘durable’ tradition that sentencing judges ‘enjo[y] discretion in the
sort of information they may consider’ at an initial sentencing proceeding.” Concepcion v. United
States, 142 S. Ct. 2389, 2398 (2022) (alteration in original) (quoting Dean v. United States,
581 U.S. 62, 66 (2017)). In reaching sentencing determinations, federal judges “may appropriately
conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may
consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446
(1972). Despite this broad discretion, a sentencing court must give the defendant notice of any
information it plans to rely upon in sentencing (that is not already contained in the PSR), and “give
[the defendant] a reasonable opportunity to comment on that information.” Fed. R. Crim. P.
32(i)(1)(B); Coppenger, 775 F.3d at 803-04. A defendant must receive “reasonable notice” of the
reasons for the variance, but “what constitutes reasonable notice will vary depending on the
-4- No. 22-3320, United States v. Moten
circumstances of the particular case.” United States v. Zabel, 35 F.4th 493, 506 (6th Cir. 2022)
(quoting United States v. Erpenbeck, 532 F.3d 423, 443 (6th Cir. 2008)).
The court notified Moten at the first two sentencing hearings that it planned to vary upward
because of the involvement of his much younger co-defendant, who was still in high school and
had possible developmental challenges. On appeal, however, Moten seizes on a brief comment by
the court: “It’s obvious for anyone who has talked to Mr. Bascomb, and I have done so at his
sentencing hearing, that he has limitations. . . . It is not a secret, if you spend any time with him
or talk with him, that he has limitations, educational, and perhaps otherwise.” DE 94, Sentencing
Tr., Page ID 552. From that statement, Moten argues that he did not and could not have anticipated
that the court would rely upon personal observations of Bascomb in imposing the upward variance,
thus making it procedurally unreasonable for the court to rely on those observations.
Moten’s claim fails because he was constructively notified of the reasons for the upward
variance, including that personal observations might factor into the analysis, and given ample time
to respond. First, the contents of Bascomb’s PSR—upon which Moten knew the court might
rely—contain similar personal observations of Bascomb. As discussed by the government at
Moten’s final sentencing, Bascomb’s PSR noted that he “had delayed speech and difficulty with
reading and writing”—details that likely would have been personally observable by the court. DE
94, Sentencing Tr., Page ID 536. And at the first sentencing hearing, the court stated that it was
holding hearings concerning Bascomb’s bond and would later conduct Bascomb’s sentencing.
Therefore, Moten was on notice that Bascomb’s intellectual challenges were obvious and
observable, and that the court would itself be interacting with Bascomb in court proceedings.
Further, the actions of Moten’s counsel reflect his understanding that information could be
gleaned from observing Bascomb personally that was not contained in the PSR. At the first
-5- No. 22-3320, United States v. Moten
hearing, Moten’s counsel inquired about attending one of Bascomb’s hearings “to get a better
understanding of what . . . his conduct was, what his background is, some other information that
would be helpful . . . down the road when we have the [second sentencing] hearing.” DE 96,
Sentencing Tr., Page ID 600. Even though the court reminded counsel that much of that
information would be available in Bascomb’s PSR, counsel insisted that he would still like to
attend.1 Therefore, Moten’s counsel appeared to be aware of the value of observing Bascomb
personally and actually received this opportunity.
Finally, it is unclear what, if anything, Moten would have done differently had he known
this information. Moten claims that he might have called “expert or lay witnesses [to testify]
regarding the obviousness of [Bascomb’s] limitations” because “not everyone who suffers
limitations or disabilities presents as such.” CA6 R. 43, Reply Br., at 3. But this contention is not
persuasive. The court’s extensive discussion of Bascomb’s intellectual challenges, as well as their
mention in Bascomb’s PSR, could have alerted Moten to the potential benefits of expert testimony.
The district court’s foreseeable commentary regarding its reasoning does not make Moten’s
sentence procedurally unreasonable. Moten was aware that the court was considering an upward
variance based in part on the youth and intellectual difficulties of his co-defendant. The court’s
passing comment about personal observations of Bascomb was not unforeseeable or reasonably
surprising to Moten. Bascomb’s PSR mentioned issues with reading, writing, and delayed speech.
Moten knew the court would be observing and interacting with Bascomb personally. And Moten’s
counsel requested and received the opportunity to observe Bascomb in the same setting as the
1 The court agreed and allowed Moten’s counsel to attend the hearing, although the record does not indicate whether counsel did in fact attend. -6- No. 22-3320, United States v. Moten
court. Moten’s sentencing does not rise to the levels of surprise and unforeseeability that constitute
procedural unreasonableness or abuse of discretion.
IV.
For the foregoing reasons, Moten’s sentence is affirmed.
-7-