United States of America v. Andre Hatcher, Jr.

Cleveland, Ohio - Criminal defense lawyer represented defendant with

felon in possession of a firearm and escape charges.

On March 16, 2017, Andre Hatcher, Jr. escaped from the Oriana House Residential

Reentry Center (RCC), where he was confined by virtue of a forty-six-month sentence for felon

in possession of a firearm. R. 17 (PSR ¶ 10) (Page ID #97). On April 13, 2017, law

enforcement responded to a call regarding a shooting and found Hatcher lying on the ground

with a gunshot wound to the head. Id. ¶ 8. While performing first aid on Hatcher, an officer

observed a firearm tucked in Hatcher's waistband. Id. After Hatcher was taken to the hospital,

he left and was not apprehended until May 2018, when he was found by law enforcement after

being shot again. R. 26 (Sent'g Hr'g Tr. at 12) (Page ID #153).

On July 19, 2017, Hatcher was named in a one-count indictment. R. 1 (Indictment) (Page

ID #1). On May 30, 2018, after Hatcher's recapture, a two-count Superseding Indictment was

filed, adding a count for his escape from the RCC. R. 11 (Superseding Indictment ¶ 2) (Page ID

#31). On July 9, 2018, Hatcher pleaded guilty to both counts: Felon in Possession of a Firearm

and Ammunition (Count 1), 18 U.S.C. § 922(g)(1), 18 U.S.C. § 924(a)(2); and Escape (Count 2),

18 U.S.C. § 751(a).

No. 18-4092 United States v. Hatcher Page 3

On October 5, 2018, the district court gave notice of a possible upward variance in

advance of Hatcher's sentencing hearing, based upon the following 18 U.S.C. § 3553(a) factors:

1. The nature and circumstances of the offense.

2. The history and characteristics of the defendant, including his criminal

history.

3. The need for the sentence imposed to reflect the seriousness of the offense, to

promote respect for the law, to provide just punishment for the offense, to

afford adequate deterrence to criminal conduct, and to protect the public from

further crimes of the defendants.

R. 19-1 (Notice of Possible Upward Variance) (Page ID #125).

The sentencing hearing took place on October 18, 2018. At the hearing, the parties

agreed that the guidelines range was forty-one to fifty-one months, and the district court

reiterated that it had given notice of a possible upward variance. R. 26 (Sent'g Hr'g Tr. at 5)

(Page ID #146). Hatcher's counsel proceeded to provide background on the adversity that

Hatcher had encountered throughout his life, including multiple stabbings and gunshot wounds, a

physically abusive father, diagnoses for bipolar disorder and depression, attempted suicide, and a

history of extensive substance abuse. Id. at 5–9. The government then stated it was seeking a

sentence "at the high end of the guideline range.” Id. at 11.1

During its statement, the Assistant U.S. Attorney responded to Hatcher's assertion that he

carried the firearm for protection as follows:

I would submit that the possession of the firearm was not solely for protection.

The investigation revealed that shell casings discovered from a shooting three

days prior to when the defendant was shot [on April 13, 2017] matched the

firearm that he had on his person.

So while, of course, I don't know the specifics of what happened then,

I think that certainly suggest[s] a possibility that the defendant was involved in a

shooting three days prior and perhaps his victimization on the day of the offense

was in retaliation for that. I don't know.

Id. at 11–12. The AUSA then confirmed with the district court that the government had shell

casings that matched the firearm found on Hatcher, and stated: "He keeps going back to this

1Pursuant to the parties' Rule 11(c)(1)(B) plea agreement, the parties were obligated to recommend a

sentence within the guidelines range. R. 13 (Plea Agreement ¶ 12) (Page ID #39).

No. 18-4092 United States v. Hatcher Page 4

very same difficult area, and he keeps being involved in these difficult situations and these

violent situations.” Id. at 12. An ATF special agent affirmed that the firearm was used three

days prior to when Hatcher was shot on April 13; that in the course of the earlier shooting, two

non-party victims were shot; and that one of the victims may have fired at the other. Id. at 15.

Of the seven spent shell casings, four matched the firearm found on Hatcher three days later. Id.

The district court and Hatcher's counsel then debated whether Hatcher was justified in

escaping from the RCC. Id. at 15–18. The district court rejected Hatcher's argument and stated:

"And that's why he's going off unfortunately to serve a very lengthy time, because the

circumstances here and the history here, the possession of the gun, and obviously the gun,

whether it's by him or someone else, certainly willing to use it.” Id. at 18. The district court

continued:

He leaves and he absconds and the timeline, as the government sets forth as is

agreed. He gets shot. He leaves. He absconds. We don't discover him until

13 months later. At that time, he has a loaded firearm on him which, again, we

can't prove definitively that he is the one that used that firearm to shoot other

individuals or discharge it, but three days earlier, that same handgun had been

used and discharged. So we know that.

Id. at 19. The district court then stated that Hatcher had "five juvenile convictions ranging from

criminal trespass, burglary, two adult convictions for robbery and he has a federal felon in

possession of a firearm.” Id. at 19–20.

After recounting this background, the district court acknowledged that there would be a

sentencing disparity "because I intend to vary upward based upon the conduct and the record of

this defendant and the fact that he's previously served a stint in prison for just the same offense

for which he's here for now.” Id. at 20. The district court then explained that Hatcher had a

violent record, adding that "as we now know, of course, [Hatcher] returned to the old

neighborhood and continued to use a firearm or have a firearm on or about his person.” Id. at 21.

Returning once more to Hatcher's argument that he fled the RCC out of fear, the district court

stated:

There's other ways he could have gone about this rather than escape, and then

almost immediately gets involved again in violent conduct either on his own

behalf or in interaction with others resulting in his own injury.

No. 18-4092 United States v. Hatcher Page 5

Id. at 22. The district court concluded that "for those reasons,” it would sentence Hatcher to

seventy-two months in prison. Id.

2

Confirming that this sentence was an upward variance from

the fifty-one months at the top of the guidelines range, the district court stated that "[i]t's

necessary for all the reasons I've just stated.” Id.

Upon the district court's inquiry regarding any objections under United States v. Bostic,

371 F.3d 865 (6th Cir. 2004), Hatcher's counsel stated, "[C]learly I would object to the court's

upward variance and ask the court to reconsider that.” R. 26 (Sent'g Hr'g Tr. at 25) (Page ID

#166). The district court responded that Hatcher's prior, forty-six-month sentence was

insufficient to deter him from criminal conduct, and that "within a short period of time upon his

escape . . . he once, again, returned to the same life-style and possession of a firearm, which is

cause for the court's upward variance.” Id.

Hatcher timely appealed his sentence.

II. DISCUSSION

On appeal, Hatcher claims that his sentence was unreasonable for three reasons. First, he

claims that the district court's reliance on his alleged involvement in the April 10, 2017, shooting

was surprising and prejudicial. Second, he claims that a preponderance of the evidence did not

support the district court's reliance on his alleged involvement in this shooting. Third, he claims

that the district court erred in misstating the number of adult convictions for robbery that are in

his criminal record. It is undisputed that the first and third claims are claims of procedural error;

the parties dispute whether the second is a claim of procedural or substantive error. We conclude

that, regardless of the standard of review, the district court committed reversible error with

respect to the first and second claims, and committed harmless error with respect to the third

claim.

2The district court made two technical errors in imposing this sentence, which it corrected promptly. First,

the district court initially stated that it would impose a sentence of "17 months on each count,” and then changed this

number to seventy-two. R. 26 (Sent'g Hr'g Tr. at 22) (Page ID #163). Second, the statutory maximum on Count 2

was sixty-months, so the district court amended the sentence to sixty-months on Count 2 to run concurrently with

the seventy-two-month sentence on Count 1. Id. at 24–25.

No. 18-4092 United States v. Hatcher Page 6

A. Standard of Review on Procedural Reasonableness Claims

As a preliminary matter, the parties dispute whether Hatcher's procedural reasonableness

claims are reviewed for abuse of discretion or plain error. Although Hatcher stated that he

objected "to the court's upward variance,” id., the government correctly points out that he did not

object to "any specific procedural deficiencies at the sentencing hearing.” Appellee Br. at 23.

Hatcher tellingly offers no argument in response. In the context of claims of procedural error,

we have held that when a defendant objects "at such a high degree of generality that the district

court has no opportunity to correct its purported error and the court of appeals has been deprived

of a more detailed record to review,” plain-error review applies. United States v. Simmons, 587

F.3d 348, 358 (6th Cir. 2009). For this reason, we conclude that Hatcher has not preserved his

claims of procedural error, and we will review these claims for plain error. "A 'plain error' is an

error that is clear or obvious, and if it affects substantial rights, it may be noticed by an appellate

court.” United States v. Barajas–Nunez, 91 F.3d 826, 830 (6th Cir. 1996) (citations omitted).

This court "should correct a plain forfeited error affecting substantial rights if the error 'seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.'” United States v.

Olano, 507 U.S. 725, 736 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))

(alteration in original).

B. Hatcher's Procedural Reasonableness Claims

The parties agree that Hatcher's first and third claims relate to procedural reasonableness.

The first claim challenges the district court's improper reliance on Hatcher's alleged involvement

in the earlier shooting, and the third challenges the district court's mistaken reference to two

adult convictions for robbery. Both claims demonstrate plain error in the district court's

sentence, but only the first demonstrates reversible error.

1. The District Court's Reliance on Surprising and Prejudicial Information

For Hatcher's first claim, we must determine as an initial matter whether or not the

district court actually relied on a belief that Hatcher was involved in the uncharged, April 10

shooting in sentencing him. A sentencing court commits procedural error in this manner "only if

it based the defendant's sentence on . . . erroneous information.” United States v. Adams,

No. 18-4092 United States v. Hatcher Page 7

873 F.3d 512, 518 (6th Cir. 2017). This requires the court to "look to the sentencing decision

with an eye for whether the information in question appears to have been 'an important factor in

determining [the] sentence.'” United States v. Wilson, 614 F.3d 219, 224 n.3 (6th Cir. 2010)

(quoting United States v. González–Castillo, 562 F.3d 80, 81 (1st Cir. 2009)). In short, there can

be no error unless the district court relied on the information being challenged.

Although Hatcher may overstate the individual weight of each of the four references by

the district court to the uncharged shooting, the four references taken together—and the final

reference, in particular—represent an unambiguous reliance on this information. The first

reference is moderately indicative of reliance. The district court stated that Hatcher is "going off

unfortunately to serve a very lengthy time” in part because of "the gun, whether it's by him or

someone else, certainly willing to use it.” R. 26 (Sent'g Hr'g Tr. at 18) (Page ID #159). Given

the colloquy that had just transpired regarding Hatcher's possible use of the firearm in the

shooting three days earlier, it is likely that the district court referred here to that shooting. At the

same time, Hatcher's criminal record is replete with violent conduct, and this statement could be

a mere observation that Hatcher was "certainly willing” to use violence against others. Id. The

second and third references are less clear than the first. The second reference appears during the

district court's recounting of the events as presented at the sentencing hearing; there is no

indication that the district court relied on the observation that "th[e] same handgun had been used

and discharged.” Id. at 19. The third reference similarly does not indicate definitively whether

the district court would rely on Hatcher's alleged participation in the shooting in sentencing him.

The district court's disjunctive conclusion—that Hatcher "continued to use a firearm or have a

firearm on or about his person,” id. at 21 (emphasis added)—makes it uncertain whether, in this

particular statement, the district court relied on Hatcher's involvement in the uncharged shooting

in sentencing him.

The fourth and final reference, however, clearly incorporates Hatcher's alleged

involvement in the prior shooting into the district court's sentence. The district court stated that

"almost immediately” after Hatcher escaped from the RCC in March 2017, he "g[ot] involved

again in violent conduct either on his own behalf or in interaction with others resulting in his

own injury,” and then stated that "for those reasons,” the upward variance was necessary. Id. at

No. 18-4092 United States v. Hatcher Page 8

22. Unlike in the first statement, in which the district court's suggestion that Hatcher was

"certainly willing to use” the gun could have been a reference to other incidents of violence in

his record, this statement explicitly identifies the violent conduct that took place "almost

immediately” after Hatcher left the RCC. This could only correspond to two incidents: the

uncharged shooting (on April 10) and an unknown assailant shooting Hatcher three days later

(on April 13). The subsequent phrase—"either on his own behalf or in interaction with

others”—confirms that the district court was referring to Hatcher's alleged involvement in the

uncharged shooting, not to him being shot three days later. Id. That is, the phrase "immediately

gets involved again in violent conduct either on his own behalf or in interaction with others”

cannot mean "immediately gets shot.”3

The statement is an unmistakable observation that

Hatcher was involved in the uncharged shooting, and that this information, in part, justifies the

lengthy sentence. Without question, the reliance is not as clear as in United States v. Fleming,

for example, in which "[t]he district court explicitly said that its decision to double Fleming's

sentence was based on [a local news] article, explaining that the article was '[i]n large part . . .

some indication of why long, lengthy sentences are necessary to try and deter' cocaine

trafficking.” 894 F.3d 764, 768 (6th Cir. 2018) (alterations in original). Yet we have vacated

sentences based on district court statements that signal less obvious reliance on impermissible

considerations, when such statements "imply” consideration of such information rather than

explicitly relying on it. United States v. Hughes, 283 F. App'x 345, 353–54 (6th Cir. 2008)

("[T]he record implies that the district court may have considered the circumstances surrounding

the government's decision to prosecute Hughes when fashioning his sentence.”) (emphasis

added). In this case, the district court's last reference to Hatcher's "violent conduct,” in

particular, manifests clear reliance on a belief that Hatcher was involved in the April 10 shooting

as a reason to impose a lengthy sentence.

3The dissent believes otherwise. In its view, the district court's statement that Hatcher became "involved

again” in violent conduct most naturally refers to Hatcher being the victim of a crime (one in which he apparently

did not fight back, see R. 17 (PSR ¶ 8) (Page ID #97)), rather than to him firing a weapon in a shootout. We are

unable to comprehend why the district court would refer to an incident in which Hatcher was shot once from behind

in an assassination-style hit as him regrettably becoming "involved again in violent conduct.” R. 26 (Sent'g Hr'g

Tr. at 22) (Page ID #163).

No. 18-4092 United States v. Hatcher Page 9

Having determined that the district court did, in fact, rely on Hatcher's alleged

involvement in the uncharged shooting in fashioning his sentence, the next question is whether

this reliance was procedurally unreasonable. One way in which a sentence may be procedurally

unreasonable is when "the facts or issues on which the district court relied to impose a variance

came as a surprise and [the defendant's] presentation to the court was prejudiced by the

surprise.” United States v. Coppenger, 775 F.3d 799, 804 (6th Cir. 2015) (quoting United States

v. Rossi, 422 F. App'x 425, 432 (6th Cir. 2011)). We have concluded that a defendant was

surprised by such "facts or issues,” for example, when a sentencing court relied on information

that was "neither signaled in the presentence report nor otherwise reasonably foreseeable.” Id.

A defendant may be prejudiced by such surprise when he or his counsel do not have "a

meaningful opportunity to contest the veracity or relevance of the information” relied upon by

the district court. Fleming, 894 F.3d at 769.

Hatcher argues first that the district court's consideration of the uncharged shooting was

surprising because, despite the parties' plea agreement allowing the government to submit any

relevant sentencing information for inclusion in the PSR, the PSR did not mention the shooting.

Appellant Br. at 8, 20.4

The notice of possible upward variance from the district court is

similarly silent as to the shooting. The government responds that the information could not have

been surprising because "the government disclosed the specific facts as part of discovery,” it was

"relevant to the danger to the community” that "bullets” from the firearm Hatcher possessed

were found at a shooting three days earlier, and the district court provided written notice in

advance of the hearing that it was considering varying upward. Appellee Br. at 26, 28.

None of the government's arguments are persuasive. Neither the PSR nor the notice of

possible upward variance put Hatcher on notice that this information would be relied upon at

sentencing. The fact that some information regarding the uncharged shooting was provided to

Hatcher in discovery does not alter the fact that neither Hatcher nor his counsel could have

"anticipate[d] the weight the court ultimately assigned to th[is] consideration” at sentencing.

4Hatcher adds that if the government intended to rely on this information at sentencing, it was required to

file this information with the district court no later than one week prior to sentencing, Appellant Br. at 20, but as he

acknowledges later in his brief, "the Government did not even allege . . . that Mr. Hatcher was involved in or fired a

gun at the Uncharged Shooting,” id. at 27.

No. 18-4092 United States v. Hatcher Page 10

Coppenger, 775 U.S. at 805. The district court did "not just ma[k]e in passing” a reference to

this information, Fleming, 894 F.3d at 769, but rather inquired about the shooting repeatedly and

explicitly regarded it as a reason for the upward variance. In considering what type of issues

Hatcher's counsel should have expected to arise at the hearing, we find useful the Supreme

Court's discussion in Irizarry v. United States of how a "competent lawyer” would typically

prepare for sentencing. 553 U.S. 708, 716 (2008) (quoting United States v. Vega-Santiago,

519 F.3d 1, 5 (1st Cir. 2008)). In the Supreme Court's view, defense counsel can "anticipate

most of what might occur at the sentencing hearing . . . based on the trial, the pre-sentence

report, the exchanges of the parties concerning the report, and the preparation of mitigation

evidence.” Id. (quoting Vega-Santiago, 519 F.3d at 5). Here, Hatcher did not go to trial; the

presentence report was silent as to the uncharged shooting, so there was no exchange about the

PSR putting Hatcher or his counsel on notice of this issue; and investigation into an uncharged

event does not fall into the scope of preparing mitigation evidence.

Although Hatcher was on notice that his sentencing would involve consideration of his

danger to the community, this did not make him aware that evidence of a prior shooting—to

which not even the government alleged he was connected—would be relevant. It is true that,

unlike in Fleming, Coppenger, and other cases in this circuit, the defendant here could have

somehow ascertained the information upon which the district court would rely at sentencing.

Cf. United States v. Penny, 777 F. App'x 142 (6th Cir. 2019) (district court relied on information

from a codefendant's confidential proffer, preventing the defendant from ascertaining the

information prior to sentencing). But the question is not whether there was some conceivable

way for the defendant to find out the allegedly surprising information prior to sentencing; rather,

it is whether such information was included in the presentence report or was "otherwise

reasonably foreseeable.” Coppenger, 775 F.3d at 804. In this case, it was not.

The next question is whether this surprise prejudiced Hatcher. There are several reasons

why it did. First, the district court did not make clear its intention to rely on Hatcher's alleged

participation in the April 10 shooting until it announced his sentence. Specifically, the district

court's fourth and final reference to this shooting—the clearest reference linking Hatcher to the

shooting and incorporating this information into the sentence—came immediately before the

No. 18-4092 United States v. Hatcher Page 11

district court stated that it would sentence Hatcher to seventy-two months in prison. As in

Fleming, once this reliance was made clear, "the train had left the station and the court was

already rendering its sentence.” 894 F.3d at 771. Second, even if the district court had clarified

earlier that it would rely on this information, the suddenness of this information's relevance to

Hatcher's sentence left his counsel without a "meaningful opportunity,” id. at 769, to attack the

inference drawn by the district court. As Hatcher makes clear in his brief, had he known

beforehand that this information would be relied upon at sentencing, his counsel could have

asked the district court for a formal evidentiary hearing to cross-examine Agent Hartnett and

others involved in the investigation of the April 10 shooting; requested a testing of the alleged

bullet casings to determine if, in fact, they matched the firearm found on his person; and

interviewed witnesses of the April 10 shooting to develop testimony. Appellant Br. at 22. This

distinguishes Hatcher's case from those in which the defendant fails to show how he might have

challenged the relied-upon information. See Rossi, 422 F. App'x at 433–34 ("Rossi argues only

generally that '[n]othing about the sentencing proceedings . . . suggested the need to marshal

arguments against a 144–month sentence,' Appellant Br. at 11, but does not indicate what he

would have done differently at the sentencing hearing.”).

It is true that, unlike in Fleming, for example, counsel for the defendant did not make any

contemporaneous objection to the relevance of this information or indicate any need for a further

evidentiary hearing on this issue. See Penny, 777 F. App'x at 148 (noting in the context of

prejudicial surprise that the defendant failed to object to the district court's announcement that it

would rely on the relevant information). Even if the district court earlier had announced its

intention to rely on Hatcher's alleged involvement in the April 10 shooting, however, it would be

improper for this court to foreclose Hatcher's procedural reasonableness challenge simply

because his counsel did not object. As in Fleming, "a meaningful opportunity” for defense

counsel to address the information at sentencing would have "allow[ed] counsel time to digest

the information” and form a coherent response. 894 F.3d at 769. Furthermore, to accept the

government's argument that there was no prejudice because "counsel did not object to the

introduction of the information at sentencing, nor did counsel either ask for the opportunity to

question the case agent or ask for a continuance to conduct further investigation,” Appellee Br. at

26, would render superfluous the application of plain-error review to Hatcher's claim—there

No. 18-4092 United States v. Hatcher Page 12

would be no inquiry into whether the defendant's substantial rights were affected, by virtue of

failing to object and thereby failing to show prejudice. As we have explained, a defendant's

"failure to object to the error . . . of course provides the reason why he must meet the rigorous

plain error standard. But this failure, in and of itself, does not provide a basis for concluding that

[the defendant] failed to demonstrate a 'reasonable probability' that his substantial rights were

affected.” United States v. Monie, 858 F.3d 1029, 1032 (6th Cir. 2017) (quoting United States v.

Sanya, 774 F.3d 812, 818 (4th Cir. 2014)). For the foregoing reasons, the district court's reliance

on Hatcher's alleged involvement in the April 10 shooting constituted procedural error as a

prejudicial surprise to Hatcher.

We further conclude that the district court's sentence contained "not only procedural

error, but plain error, that was not harmless.” Coppenger, 775 F.3d at 806. The preceding

analysis demonstrates why there was plain error here: The district court should have realized

that it relied upon information "that the parties might reasonably not have anticipated would be

relevant.” Fleming, 894 F.3d at 771. As explained above, the district court's reliance on this

information at sentencing was explicit and there was no indication prior to sentencing that

Hatcher could have been aware that this information would play a significant role in his

sentencing. The plain error also affected Hatcher's substantial rights. "A sentencing error

affects a defendant's substantial rights when there is a reasonable probability that, but for the

error, she would have received a more favorable sentence.” Wilson, 614 F.3d at 223.5



"A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.

United States v. Bagley, 473 U.S. 667, 682 (1985). The district court explained its upward

variance in part by reference to Hatcher's "violent conduct” immediately after escaping from the

RCC, which, as discussed, unmistakably refers to the April 10 shooting. There is a sufficient

probability that, had Hatcher been able to subject this belief to meaningful adversarial testing, he

would have demonstrated that he was not involved in the shooting, and that his sentence would

have been lower. Finally, as in Fleming and Coppenger, this procedural error affected the

"fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736

5We have also articulated a "second interpretation” of substantial rights—"[t]he substantial right to be

sentenced pursuant to § 3553(c),” without reliance on impermissible factors—that need not be addressed here.

United States v. Cabrera, 811 F.3d 801, 812–14 (6th Cir. 2016).

No. 18-4092 United States v. Hatcher Page 13

(quoting Atkinson, 297 U.S. at 160). That the district court relied on information that even the

government had not explicitly advanced as a basis for enhancing Hatcher's sentence, without an

opportunity for Hatcher to subject this information to robust, critical examination, satisfies this

final requirement of the plain-error standard.

2. The District Court's Reliance on Mistaken Criminal History Information

Our assessment of Hatcher's procedural reasonableness claim relating to his adult

convictions for robbery is simpler. Hatcher has only one adult conviction for robbery, see R. 17

(PSR ¶ 41) (Page ID #103), but the district court stated that he had two. R. 26 (Sent'g Hr'g Tr.

at 19) (Page ID #160). The government concedes that this error was obvious or clear. See

Appellee Br. at 40. The error did not affect Hatcher's substantial rights, however, because 1) the

misstated number of robbery convictions did not alter Hatcher's criminal history score, which the

district court correctly found, R. 26 (Sent'g Hr'g Tr. at 5) (Page ID #146), and 2) more

significantly, the district court emphasized Hatcher's assault conviction—as opposed to the

number of adult robbery convictions Hatcher had—when stating that he had a propensity for

violence. There is no indication in the record—let alone a "reasonable probability,” Bagley, 473

U.S. at 682—that the mistaken statement regarding two adult robbery convictions affected the

district court's sentence. This error was harmless.

C. Hatcher's Remaining Claim

The parties dispute whether Hatcher's remaining claim—that the district court relied on

an impermissible factor in sentencing him—relates to procedural or substantive reasonableness.

If the claim were for procedural error, we would consider it as we have considered the two

claims above. If the claim were for substantive error, however, having concluded that Hatcher's

sentence was procedurally unreasonable, we would not address this claim. See Adams, 873 F.3d

at 520 (citing United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)) ("When reviewing a

sentence's reasonableness, we typically first address the procedural reasonableness of a sentence

and do not analyze its substantive reasonableness unless the sentence is 'procedurally sound.'”).

Without deciding whether the claim more properly fits under the heading of procedural or

substantive reasonableness, in the interest of providing clarity on remand, we will address the

No. 18-4092 United States v. Hatcher Page 14

district court's reliance on Hatcher's involvement in the April 10 shooting as a procedural

reasonableness issue.

District courts are permitted to make "reasonable inferences from facts in the record

when fashioning a sentence.” United States v. Parrish, 915 F.3d 1043, 1048 (6th Cir. 2019).

These inferences must be supported by a preponderance of the evidence. See United States v.

Watts, 519 U.S. 148, 157 (1997) (permitting consideration of conduct underlying an acquitted

charge "so long as that conduct has been proved by a preponderance of the evidence”); United

States v. Mendez, 498 F.3d 423, 426 (6th Cir. 2007) ("Watts preceded [United States v.] Booker,

[543 U.S. 220 (2005),] but this court has repeatedly held since Booker that sentencing courts may

still find facts using the preponderance-of-the-evidence standard.”). Hatcher argues that the

district court's inference that he was involved in the April 10 shooting was "unsupported” by the

record. Appellant Br. at 36. We agree. The record plainly demonstrates that a preponderance of

the record evidence did not support the district court's reliance on Hatcher's alleged involvement

in the April 10 shooting. In lieu of actual evidence linking Hatcher to the April 10 shooting, the

government offered the unsworn testimony of an ATF special agent who claimed that four shell

casings from that shooting matched the firearm found on Hatcher three days later. The

government provided no documentation to support this assertion and acknowledged that "since

no one would cooperate [in the investigation of the April 10 shooting], they could never prove

that or solve that case.” R. 26 (Sent'g Hr'g Tr. at 15) (Page ID #156). The government did not

even allege that Hatcher was involved in the shooting; the Assistant U.S. Attorney only stated

that it was a "possibility” and "I don't know.” Id. at 11–12. Put simply, "the district court was

imputing some nefarious conduct to [Hatcher] that the record simply does not support.” United

States v. Heard, 749 F. App'x 367, 384 (6th Cir. 2018) (Moore, J., dissenting). To rely on such

an inference based on a complete absence of record evidence was plain error.6

6The dissent theorizes several other ways in which the district court could have believed that Hatcher was

connected to the firearm, such as negligently letting it fall into someone else's hands. Besides the fact that the

district court's references to Hatcher's involvement in the April 10 shooting unambiguously place him as the

shooter, the parties did not advance any of the theories suggested by the dissent, nor does the record indicate that the

district court relied on any of them at sentencing.

No. 18-4092 United States v. Hatcher Page 15

We have held in other cases that a district court may not rely on similarly threadbare

evidence to connect a defendant to other criminal conduct for sentencing purposes. See United

States v. Van, 541 F. App'x 592, 594 (6th Cir. 2013) (holding that district court's reliance on a

belief that the defendant's crime "must have been part of a greater 'scheme'” was unreasonable);

United States v. Blackman, 625 F. App'x 231, 237 (6th Cir. 2015) (holding that district court's

inference that a defendant's picture of himself with a firearm necessarily connected that firearm

with the defendant's involvement in a drug-trafficking conspiracy was unreasonable). See also

United States v. Worex, 420 F. App'x 546 (6th Cir. 2011) (holding that district court, in

sentencing the defendant to an upward variance, erred in failing to find by a preponderance of

the evidence that the defendant had been involved in uncharged criminal activity). Given the

lack of evidence before the district court at the sentencing hearing related to the April 10

shooting, "[o]nly through supposition and 'mere allegation'” could the district court have relied

on Hatcher's alleged involvement in that shooting in sentencing him. Blackman, 625 F. App'x at

237 (quoting United States v. Robison, 904 F.2d 365, 371 (6th Cir. 1990)).

As for Hatcher's substantial rights, for the same reasons discussed supra Part II.B.1.,

there is a reasonable probability that his sentence would have been lower had the district court

not relied in part upon a belief that Hatcher was involved in the April 10 shooting. Finally, as

this court held in Wilson, "basing a criminal sentence on a non-existent material fact threatens to

compromise the fairness, integrity, or public reputation of [judicial] proceedings.” 614 F.3d at

225 (quoting González–Castillo, 562 F.3d at 83). Given that the district court based its sentence

in part on a belief unsupported by the factual record, this prong of the plain-error standard is

satisfied.

For the foregoing reasons, we VACATE Hatcher’s sentence and REMAND for

resentencing consistent with this opinion