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Appeals court reverses cocaine sentence in which Akron federal judge relied on cleveland.com article

June 29, 2018 GMT

Appeals court reverses cocaine sentence in which Akron federal judge relied on cleveland.com article

CLEVELAND, Ohio — An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday — this time because of his reliance on a cleveland.com article.

U.S. District Judge John Adams, before sentencing Marcus Fleming in September for possession with intent to distribute more than two pounds of cocaine, left an article at the courtroom tables for prosecutors and defense attorneys.

The article, “Over 4,000 Ohioans died of drug overdoses in 2016, a 33 percent increase,” was about a report released by the state of Ohio that attributed a spike in overdose deaths to the emergence of opioids. The article said some drug users were ingesting cocaine mixed with opioids.

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Fleming had pleaded guilty, and prosecutors recommended a prison sentence of five years. The article did not come up as both sides spoke. Adams gave Fleming a 10-year sentence, reasoning that the recommended sentence did not adequately address the issues surrounding cocaine trafficking.

Adams quoted the article extensively and said a longer prison sentence was appropriate because of the “numerous deaths that we are dealing with in the state, in this country.”

Fleming appealed, and a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati reversed his sentence Friday. The ruling sends the case back to Adams for re-sentencing.

The panel, in an opinion written by Senior Judge John Rogers, said Adams’ consideration of the article and information about cocaine-opioid mixes were a surprise. There was no indication opioids played a role in Fleming’s case, the appeals court wrote.

The panel said Fleming was prejudiced by the surprise because his attorneys did not have an opportunity to contest or meaningfully react to the article. While judges can consider how drugs affect a community, Adams went further and considered information about a drug that Fleming was not involved in dealing, the opinion states.

“Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country,” Rogers wrote. “But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.”

The 6th Circuit declined a request from Fleming to remove Adams and assign the case to a different judge, saying the problems weren’t enough to grant an “extraordinary request.”

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Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.

Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give good reasons for the higher sentences, the 6th Circuit ruled.

Eric Nemecek, an attorney for Fleming, said he respects the 6th Circuit’s decision and “we believe he’ll be able to capable to following the court’s directive.”

Adams’ law clerk said the judge could not comment because Fleming’s case was being sent back to him for re-sentencing.

If you would like to comment on this story, please visit Friday’s crime and courts comments section.

Click here to read the opinion on a mobile device.

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