United States v. Hatcher, No. 18-4092 (6th Cir. 2020)
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Hatcher escaped from confinement under a 46-month sentence for felon in possession of a firearm. Weeks later, police found Hatcher lying on the ground with a gunshot wound. While performing first aid, an officer observed a firearm tucked in Hatcher’s waistband. Hatcher left the hospital and was apprehended months later after being shot again. Hatcher pleaded guilty to felon in possession of a firearm and escape. The court gave notice of a possible upward variance, citing 18 U.S.C. 3553(a); the guidelines range was 41-51 months. Hatcher’s counsel described multiple stabbings and gunshot wounds, a physically abusive father, bipolar disorder and depression, attempted suicide, and extensive substance abuse. The prosecutor responded to Hatcher’s assertion that he carried the firearm for protection by stating that shell casings discovered from a shooting three days before Hatcher was shot matched the firearm that he possessed, which “suggest[s] ... retaliation.”
The court noted Hatcher's many convictions, rejected Hatcher’s argument that he escaped out of fear, and imposed a 72-month sentence, stating that Hatcher’s prior, 46-month sentence was insufficient to deter him. The Sixth Circuit vacated. The district court relied on Hatcher’s alleged involvement in the uncharged shooting in fashioning his sentence, which constituted procedural error as a prejudicial surprise. The court relied on information that the government had not explicitly advanced as a basis for sentencing enhancement, without an opportunity for Hatcher to subject this information to critical examination.
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