                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0218n.06

                                       Case No. 17-3318

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                             Apr 26, 2018
UNITED STATES OF AMERICA,                         )                     DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE NORTHERN DISTRICT OF
LEBRON CHARLES BUNKLEY,                           )       OHIO
                                                  )
       Defendant-Appellant.                       )
                                                  )

       BEFORE: MOORE, THAPAR, and BUSH, Circuit Judges.

       THAPAR, Circuit Judge. Somebody told the police that Lebron Bunkley was selling

drugs out of his house in Youngstown, Ohio. So officers began surveilling the property, and sure

enough, two buyers showed up and bought drugs from Bunkley in the home’s breezeway. When

the buyers drove away, the police followed and stopped their car to conduct a search. Inside,

they found a used syringe, a handful of prescription pills, and other drug paraphernalia. The

buyers admitted that they had purchased heroin from Bunkley moments earlier and then

immediately injected it.

       A few days later, one of the buyers—John Petrello—decided to cooperate with the police.

Petrello told the officers that he had been buying heroin from Bunkley for the last three years.

Each purchase played out the same way: Petrello called Bunkley with his order, picked up the

drugs from Bunkley’s house, and then walked to a nearby field to inject the drugs. With this
Case No. 17-3318, United States v. Bunkley


information in hand, the officers enlisted Petrello’s help in conducting a controlled buy. They

directed him to return to Bunkley’s house to purchase forty dollars’ worth of heroin while they

looked on. The operation went smoothly, and Petrello and the police went their separate ways.

       Unfortunately, the police came across Petrello a few weeks later. But this time, they

found his body laying lifeless in the field near Bunkley’s house. He was still holding a used

syringe, and another syringe was on the ground next to him. According to the coroner, Petrello

died from “multiple drug toxicity due to alprazolam, heroin, and sertraline.” And a search of

Petrello’s phone revealed that the last person he called was Bunkley.

       The police obtained a warrant and searched Bunkley’s house. There, they found 345

grams of cocaine, 285 grams of heroin, 84 grams of crack, some methylenedioxyamphetamine,

two loaded guns, two digital scales, a metal press, and a grinder. The cocaine and heroin were

portioned into small bags ready for distribution, and in an interview with officers after the

search, Bunkley admitted that he sold heroin to Petrello on the day before Petrello was found.

       The government charged Bunkley with three counts of drug trafficking and one count of

being a felon in possession of a firearm. Bunkley pled guilty to all charges and the district court

sentenced him to thirty years in prison—varying upward from the Guidelines by thirty-three

months. The district court also ordered lifetime supervised release. Bunkley now appeals his

sentence. We affirm in part and reverse in part.

                                                   I.

       Bunkley raises six arguments on appeal, each of which attacks the way the district court

crafted his sentence. Since he presented none of these arguments to the district court, we review

them for plain error. Fed. R. Crim. P. 52(b); see United States v. Vonner, 516 F.3d 382, 391–92

(6th Cir. 2008) (en banc) (“While we do not require defendants to challenge the ‘reasonableness’



                                               -2-
Case No. 17-3318, United States v. Bunkley


of their sentences in front of the district court, we surely should apply plain-error review to any

arguments for leniency that the defendant does not present to the trial court.”). So to succeed,

Bunkley must show that the district court made an error that was plain, affected his substantial

rights, and seriously undermined the fairness, integrity, or public reputation of his judicial

proceedings. United States v. Olano, 507 U.S. 725, 732 (1993).

                                                 II.

       During the sentencing hearing, the district court emphasized Bunkley’s role in Petrello’s

death and the harm that Bunkley’s drug trafficking caused in the local community. At various

points, the court reiterated that Petrello “ultimately died from [the] heroin provided by Mr.

Bunkley,” and that it was impossible to know “how many other deaths or lives have been

destroyed by Mr. Bunkley’s heroin trafficking.” R. 40, Pg. ID 158, 164. Bunkley claims that

these statements resulted in reversible error for four reasons.

       Speculation. First, Bunkley argues that there was no evidence in the record supporting

the district court’s belief that (1) Bunkley provided the heroin that led to Petrello’s death, and

(2) Bunkley had destroyed any other lives. As such, Bunkley claims the district court was

impermissibly speculating when it made these statements. We disagree. While it is true that

courts cannot sentence defendants based on speculation or unfounded assumptions, they also are

not limited to facts admitted by the parties or proven beyond a reasonable doubt. United States

v. Van, 541 F. App’x 592, 597–98 (6th Cir. 2013); United States v. Cook, 453 F.3d 775, 777 (6th

Cir. 2006). Instead, a sentencing court can rely on any fact that is supported by a preponderance

of the evidence. United States v. Klups, 514 F.3d 532, 537–38 (6th Cir. 2008).

       The record provided a sufficient basis for the district court to conclude that Bunkley

caused Petrello’s death and harmed others in the community. To start, Bunkley admitted that he



                                                -3-
Case No. 17-3318, United States v. Bunkley


sold heroin to Petrello on the day before the body was found, and the coroner later determined

that Petrello overdosed after ingesting heroin and two other drugs. The police found Petrello in

the field by Bunkley’s home—the very same place Petrello regularly went to immediately inject

the drugs he purchased from Bunkley. And Petrello was still holding a used syringe, indicating

that he died right after injecting the drugs.        These facts are enough to conclude by a

preponderance of the evidence that Petrello ultimately died from the heroin that Bunkley sold

him.   See United States v. Salyers, 661 F. App’x 862, 866 (6th Cir. 2016) (holding that

preponderance of the evidence standard was met where defendant admitted giving heroin to an

overdose victim two days before the victim died from the combined effects of heroin and other

drugs and defendant never offered evidence showing that there were other suppliers).

       The record also establishes that Bunkley was a large-scale, life-long drug dealer who fed

addiction in his community. For one, the police found over seven hundred grams of drugs when

they searched his house. Bunkley had already divided the heroin and cocaine into small baggies,

and he admitted that he intended to sell them.          In addition, Bunkley’s criminal history

demonstrated that this was not the first time Bunkley had gotten in trouble for dealing drugs. In

fact, he had already received an eight-year sentence for selling cocaine. The district court did not

need a list of drug addicts’ names, as Bunkley seems to suggest, to conclude that Bunkley’s

drug-trafficking activities caused harm in the community—these facts were enough. See United

States v. Ford, Nos. 17-3432/17-3456, 2018 WL 1037417, at *6 (6th Cir. 2018) (holding that

court could infer that a defendant had more likely than not caused an overdose or other harms by

selling heroin); United States v. Hodges, 641 F. App’x 529, 532 (6th Cir. 2016) (holding that it

was not an error to conclude “that distribution of heroin in a community caused damage to that




                                               -4-
Case No. 17-3318, United States v. Bunkley


community”). The district court therefore did not engage in impermissible speculation when

sentencing Bunkley.

       Notice. Second, Bunkley argues that the district court should have given him notice that

it was going to consider Petrello’s death and the harms Bunkley caused in his community. This

argument is misguided. District courts are not required to notify defendants of their intent to

vary upward from the Guidelines. Irizarry v. United States, 553 U.S. 708, 716 (2008). Nor are

they required to warn defendants that they believe certain facts in the record may warrant a

lengthy sentence. United States v. Romero, 704 F. App’x 445, 449 (6th Cir. 2017). So the only

way Bunkley can obtain relief is by showing that the district court’s discussion of these facts

“came as a surprise” and prejudiced his presentation to the district court. United States v.

Coppenger, 775 F.3d 799, 804 (6th Cir. 2015) (citing United States v. Rossi, 422 F. App’x 425,

432 (6th Cir. 2011)). This Bunkley cannot do.

       The presentence report referenced Petrello thirty times. Its discussion of the offense

conduct described Bunkley’s role in Petrello’s overdose at length.     Bunkley’s written plea

agreement did as well. Bunkley himself acknowledged his accountability to Petrello’s family

during his allocution—before either the government or the court had done so. As such, Bunkley

can hardly claim that he was surprised that Petrello came up at sentencing. See Rossi, 422 F.

App’x at 433. Bunkley nevertheless seems to claim that he did not foresee how much Petrello

would come up, or that the district court would emphasize his death—especially since the

presentence report listed “no identifiable victim” of Bunkley’s crimes. But Bunkley was not

entitled to “a preview of the court’s thought process” ahead of sentencing. Romero, 704 F.

App’x at 449. He was entitled only to notice of the “pertinent facts on which the court [would]

base its decision,” which he got. Id.



                                                -5-
Case No. 17-3318, United States v. Bunkley


        In addition, district courts routinely focus on the harm defendants cause to the

community. See, e.g., Hodges, 641 F. App’x at 532. Indeed, in fashioning an appropriate

sentence, courts must consider whether the sentence will both reflect the seriousness of the

offense and protect the public. 18 U.S.C. §§ 3553(a)(2)(A), (C); see Irizarry, 553 U.S. at 716

(explaining that “considerations of culpability, criminal history, likelihood of re-offense,

seriousness of the crime, nature of the conduct and so forth should not generally come as a

surprise to trial lawyers who have prepared for sentencing” (quoting United States v. Vega-

Santiago, 519 F.3d 1, 5 (1st Cir. 2008))). And Bunkley’s attorney even anticipated that the

district court would consider the harm Bunkley caused. When asking the district court for

leniency, Bunkley’s attorney pleaded that Bunkley “recognized what he did was wrong,

recognize[d] the harm that the drugs were causing in the community and seem[ed] to very well

understand the situation he placed himself and the community in.” R. 40, Pg. ID 150. It is

therefore hard to imagine that Bunkley was surprised when the district court discussed the same

considerations a few moments later. See Rossi, 422 F. App’x at 433.

        Moreover, in order to succeed on this ground, Bunkley also had to explain what he would

have done differently at the sentencing hearing had the district court given him the notice he

wanted. Id. at 432–33. Bunkley makes no attempt to do so, stating only that his attorney “could

have made objections.” Appellant Br. 23. This bald assertion is insufficient. Rossi, 422 F.

App’x at 433–34. Bunkley is thus unable to show that he was unfairly surprised or prejudiced,

so he is not entitled to relief on this ground. Id.

        Undisclosed Evidence. Third, Bunkley claims that the district court relied on undisclosed

evidence when it mentioned that there was an opioid epidemic in Ohio and that hundreds of

people had died from drug overdoses in the past year. Because neither fact was included in the



                                                  -6-
Case No. 17-3318, United States v. Bunkley


presentence report, Bunkley suggests the district court ran afoul of this court’s decision in United

States v. Hayes, 171 F.3d 389 (6th Cir. 1999). In Hayes, we held that the district court erred

when it increased the defendant’s sentence based on victim impact letters that it never shared

with the defendant. Id. at 391–92. Here, however, the district court did not rely on information

that was unknown to Bunkley. Rather, the court relied on publicly available information to

emphasize that Bunkley’s offenses were serious and posed a danger to the community. See

United States v. Harris, 585 F. App’x 893, 894–95 (6th Cir. 2014) (per curiam) (explaining that

Hayes does not prohibit district courts from considering publicly available statistics). Since

courts routinely discuss societal conditions in this way, the district court did not err. See, e.g.,

Ford, 2018 WL 1037417, at *4. Moreover, even if this routine practice was error, Bunkley has

not explained how he could have effectively rebutted the district court’s assertions if they had

been included in the presentence report—which is a prerequisite for relief under plain-error

review. United States v. Meeker, 411 F.3d 736, 742 (6th Cir. 2005). So this ground is also

insufficient to warrant relief.

        Relevant Conduct. Finally, Bunkley argues that Petrello’s death and the harm he may

have caused in the community are not “relevant conduct” for purposes of sentencing. But the

cases he relies on for this proposition are about what constitutes relevant conduct when

calculating a defendant’s base offense level under the Guidelines. See, e.g., United States v.

Cross, 121 F.3d 234, 238–39 (6th Cir. 1997). Here, the district court did not consider these

factors when calculating Bunkley’s base offense level—it used them as a basis to vary upwards.

And for the reasons stated above, it was permissible for the district court to do so.




                                                -7-
Case No. 17-3318, United States v. Bunkley


       In sum, none of Bunkley’s arguments demonstrates that the district court committed a

plain error that affected his substantial rights when it considered Petrello’s death and the harm

Bunkley caused to the community.

                                               III.

       Bunkley next argues that the district court misunderstood the statutory maximum for one

of his drug-trafficking counts and that this misunderstanding affected the court’s decision to vary

above the Guidelines. The record, however, demonstrates otherwise.

       At the outset of the sentencing hearing, the district court announced the statutory

penalties for each of the counts in Bunkley’s plea agreement. When it did so, it misstated the

statutory term for Count II. Instead of explaining that the count had a statutory maximum of

thirty years, the judge said it carried a term of thirty years to life. This statement was plainly

incorrect. But the district court went on to state the correct statutory maximum twice more

before sentencing Bunkley. And out of an abundance of caution, the government brought the

court’s initial misstatement to the judge’s attention at the end of the hearing.          The judge

immediately apologized for misspeaking, explained that he understood that Count II carried a

term of up to thirty years, and re-announced Bunkley’s sentence to clear up the record.

       All in all, the district court thoroughly corrected its momentary error—four times to be

exact. This is enough to show that it understood Count II’s statutory penalty when crafting

Bunkley’s sentence. See United States v. Johnson, 302 F. App’x 453, 457 (6th Cir. 2008)

(finding no error where district court acknowledged its initial misstatement of the Guidelines

range and demonstrated its understanding on how to properly apply the Guidelines range going

forward). Moreover, if there was any lingering doubt, the court’s discussion of the section

3553(a) factors further confirms that it understood the applicable range. Had the district court



                                               -8-
Case No. 17-3318, United States v. Bunkley


believed, as Bunkley contends, that Count II carried a statutory minimum of thirty years, its

lengthy explanation justifying an upward variance to thirty years would have been a curious

waste of time.        See U.S. Sentencing Guidelines Manual § 5G1.1(b) (“Where a statutorily

required minimum sentence is greater than the maximum of the applicable guideline range, the

statutorily required minimum sentence shall be the guideline sentence.”).

         The sentencing transcript as a whole shows that the district court and the parties

understood Count II’s statutory penalty and that the court’s initial misstatement did not affect

Bunkley’s substantial rights.1 This argument thus fails under plain-error review.

                                                         IV.

         Finally, Bunkley argues that the district court did not adequately explain its reasons for

imposing lifetime supervised release. On this point, he is correct. After announcing Bunkley’s

custodial sentence, the district court stated that supervised release would be for life. The reason?

“[T]his defendant has proven that he needs to be supervised.”                        R. 40, Pg. ID 168.           This

explanation falls short of what the law requires.

         District courts must explain their reasons for ordering lifetime supervised release. United

States v. Inman, 666 F.3d 1001, 1004 (6th Cir. 2012) (per curiam). Often, those reasons will

overlap with the factors that support the defendant’s custodial sentence. 18 U.S.C. § 3583(c)

(instructing district courts to consider most of the section 3553(a) factors when deciding term of

supervised release). Of course, the district court does not need to go through those factors twice,

but it must provide at least some explanation about why the factors justify the term of supervised

release it imposes. United States v. Giganti¸ 405 F. App’x 31, 40 (6th Cir. 2010); see also


1
  Bunkley also seems to suggest that he was confused because the district court failed to recount the elements of
each of his charges. But he has cited no authority suggesting that a district court is required to do so in a sentencing
hearing. Moreover, Bunkley cannot credibly claim that he did not know the elements of the offenses to which he
pled guilty, as those elements were listed in his plea agreement.

                                                         -9-
Case No. 17-3318, United States v. Bunkley


United States v. Emmons, 524 F. App’x 995, 1000 (6th Cir. 2013) (per curiam). Failing to do so

warrants reversal, even under plain-error review. United States v. Thompson, 509 F. App’x 449,

453 (6th Cir. 2012).

       Accordingly, we vacate Bunkley’s sentence with respect to supervised release and

remand so the district court can provide a more thorough explanation of its reasons. See Inman,

666 F.3d at 1004, 1007. Bunkley’s other arguments about the district court’s discussion of

supervised release—namely, the court’s alleged failure to explain the mandatory and maximum

terms for each count—can also be addressed on remand.

                                        *      *      *

       For these reasons, we AFFIRM the district court’s judgment imposing a thirty-year

sentence, VACATE the judgment imposing supervised release, and REMAND for further

proceedings consistent with this opinion.




                                             - 10 -
