NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0305n.06

Case No. 22-3320

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RASHAWN MOTEN,

Defendant - Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF OHIO

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 codefendant 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. 
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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 
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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.
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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 
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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 
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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. 
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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.