United States v. Darwich

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 24, 2003
• Docket: 99-2147
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Darwich Nos. 99-2147; 01-2044 ELECTRONIC CITATION: 2003 FED App. 0245P (6th Cir.) File Name: 03a0245p.06 Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. UNITED STATES COURT OF APPEALS MOORE, J., delivered the opinion of the court, in which KEITH, J., joined. KENNEDY, J. (pp. 36-39), delivered a FOR THE SIXTH CIRCUIT separate opinion concurring in part and dissenting in part. _________________ _________________

UNITED STATES OF AMERICA , X OPINION _________________ Plaintiff-Appellee, - - - Nos. 99-2147; KAREN NELSON MOORE, Circuit Judge. Defendant- v. - 01-2044 Appellant Mike Darwich (“Darwich”) appeals from the > eighty-eight month sentence imposed by the district court , after he was convicted of conspiracy to distribute marijuana MIKE DARWICH, - in violation of 21 U.S.C. § 846, and after he was subject to Defendant-Appellant. - criminal forfeiture pursuant to 21 U.S.C. § 853. Darwich N challenges the standard of proof used to establish drug Appeal from the United States District Court quantity for sentencing, the sufficiency of the evidence used for the Eastern District of Michigan at Detroit. to prove drug quantity, and the receipt of firearm and No. 98-80508—Lawrence P. Zatkoff, Chief District Judge. leadership-role sentence enhancements.

Argued: October 31, 2002 Darwich was indicted for various drug-related crimes. Pursuant to a plea agreement, Darwich pleaded guilty to the Decided and Filed: July 24, 2003 conspiracy to distribute marijuana charge and agreed to the criminal forfeiture. The plea agreement, expressly noting the Before: KEITH, KENNEDY, and MOORE, Circuit parties’ decision to present evidence on the amount of Judges. marijuana at issue, stated that Darwich’s prison sentence would not exceed ninety-six months. Thereafter, a probation _________________ officer prepared a presentence investigative report (“PSR”) calculating Darwich’s base offense level at 26, to which COUNSEL Darwich objected. The PSR arrived at this base offense level calculation through the use of a drug quantity averaging ARGUED: Robert M. Morgan, Detroit, Michigan, for formula that held Darwich responsible for five pounds of Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Robert M. Morgan, Detroit, Michigan, for

1 Nos. 99-2147; 01-2044 United States v. Darwich 3 4 United States v. Darwich Nos. 99-2147; 01-2044

marijuana per week for the length of the conspiracy. 1 The I. BACKGROUND district court agreed with the PSR and determined that Darwich’s conspiracy involved 236 kilograms of marijuana. Darwich owned and operated the Canfield Market in Darwich was sentenced to eighty-eight months in prison and Detroit, Michigan. The market sold snacks and alcoholic four years of supervised release, and he immediately filed an beverages but did not sell any milk, eggs, or bread. Market appeal. Subsequent to the filing of the appellate briefs but customers also were able to purchase nickel bags of marijuana before oral argument, the Supreme Court decided Apprendi v. from Darwich. According to Tom Smith (“Smith”), a former New Jersey, 530 U.S. 466 (2000). In light of the Court’s employee of the market, an estimated nine out of ten market decision in Apprendi and the government’s failure to allege customers purchased marijuana from Darwich. Darwich any specific quantity of marijuana in the indictment, both stored the marijuana on his person and in Pringles brand Darwich and the government filed motions in this court to potato chip cans on the store shelves. The market’s covert waive oral argument and requested that the case be remanded operations were uncovered when the FBI investigated to the district court for resentencing to the statutory maximum whether police officers were protecting a drug business at the of sixty months pursuant to § 841(b)(1)(D). On remand, the market. district court declined to consider the parties’ sentence stipulation and determined that the evidence that the On June 18, 1998, Darwich was indicted for conspiracy to conspiracy involved 236 kilograms of marijuana was distribute marijuana in violation of 21 U.S.C. § 846; use or established beyond a reasonable doubt. Darwich, thereafter, carrying of a firearm in relation to a drug trafficking crime in filed this current appeal. We now REVERSE the district violation of 18 U.S.C. § 924(c)(1) & (2); possession with court’s determination of the amount of drugs, VACATE intent to distribute marijuana in violation of 21 U.S.C. Darwich’s sentence because it was error for the district court § 841(a)(1); two counts of maintaining a place for distributing to find that the necessary drug quantity was proven beyond a and using marijuana in violation of 21 U.S.C. § 856; and reasonable doubt and because the district court failed to issue criminal forfeiture pursuant to 21 U.S.C. § 853. The a ruling on the disputed matter of Darwich’s leadership role, indictment alleged that the conspiracy took place between and REMAND for resentencing to no more than sixty months March 1996 and April 1998. Darwich subsequently entered in accordance with this opinion. into a Rule 11 plea agreement on the marijuana conspiracy charges under 21 U.S.C. § 846 and agreed to the criminal forfeiture under 21 U.S.C. § 853. The government dismissed all other charges brought against Darwich. Although the parties did not agree on a computation of the sentencing 1 guidelines or a base offense level, they agreed to present The formula used was set forth in an addendum to the PSR and was evidence to the court for sentencing purposes, and the plea accepted by both district court opinions: “453.6 grams (equivalent to one agreement stated that Darwich’s prison sentence would not pound of marijuana) x 5 days per week x 52 weeks per year x 2 years that the conspiracy spanned. This resulted in a total of 235,872 grams of exceed ninety-six months. marijuana divided by 1,000 (grams to kilograms conversion) equals a total of 236 kilograms of marijuana.” Joint Appendix (“J.A.”) at 550 (7/10/01 A probation officer’s calculations for the PSR set Dist. Ct. Op. & Or.). United States Sentencing Guidelines (“U.S.S.G.”) Darwich’s base offense level at 26, for distribution of more §§ 2D1.1(a)(3) and 2D1.1(c)(7) provide that a base offense level of 26 is than100 but less than 400 kilograms of marijuana. Darwich required for offenses involving at least 100 but less than 400 kilograms objected to this base offense level calculation and together of marijuana. U.S.S.G. §§ 2D1 .1(a)(3), 2D1.1(c)(7) (1998 ). Nos. 99-2147; 01-2044 United States v. Darwich 5 6 United States v. Darwich Nos. 99-2147; 01-2044

with the United States Attorney made an unsuccessful attempt evidence, informing the sentencing court that approximately to stipulate to a specific sentence at the hearing on Darwich’s 655.4 grams of marijuana were uncovered at the market objections to the PSR. The district court declined to accept during the search. the stipulated sentence, and instead held an evidentiary hearing on the issue of marijuana quantity. At this The next witness to testify was Orlando Rush (“Rush”), a evidentiary hearing, the court heard testimony from four federal prisoner incarcerated for possession with intent to individuals, involved with or knowledgeable of the distribute crack cocaine. The government secured Rush’s conspiracy, addressing the question of drug quantity. testimony against Darwich by agreeing to recommend that Rush be released on bond and that his sentence be reduced to The first witness was Agent Kyle Dodge (“Dodge”). A time served. Rush testified that he bought nickel bags from substantial portion of Dodge’s testimony consisted of his Darwich for personal use “basically every day”3 over the summary recitation of the witnesses’ testimony before the course of approximately nine months prior to Rush’s arrest. grand jury. Dodge testified that: (1) Ira Earehart testified that Joint Appendix (“J.A.”) at 440 (Mot. Hr’g, Rush Direct). He on ten occasions he purchased marijuana in quantities ranging also testified that when he needed extra money he would buy from a nickel bag to one-quarter of a pound, and that on anywhere from one-half of an ounce to one pound for further twenty occasions he purchased pound quantities; (2) Leon resale during the same nine-month timeframe.4 Rush further Lippett (“Lippett”) testified that eight out of ten Canfield testified that Darwich sold approximately a pound of Market customers purchased marijuana; (3) Arnita Easterling marijuana each day. When questioned as to how he arrived (“Easterling”) testified that sometime in or around July 1997 at this figure, Rush noted that his nephews (also known as the she began bagging nickel bags of marijuana three times a “camel people”) worked as marijuana baggers at Darwich’s week and that other “camel people”2 also bagged marijuana; home and that they would sometimes tell him that they (4) Arthur Pace testified that in the fall of 1997 he bagged a bagged from one to two pounds at night.5 pound of marijuana into nickel bags each night; (5) Jillian Drappeaux (“Drappeaux”) testified that she purchased marijuana from the market approximately twenty times in 3 It is unclear from Rush’s testimony precisely how much marijuana quantities of a pound or less; (6) Odestser Pace testified that he purchased “basically every day.” When asked how many nickel bags as a market employee she sold nickel bags of marijuana; he would purchase at one time, Rush replied: “So metimes three to five (7) Jason Alquiza (“Alquiza”) testified that he regularly bags, something like that.” J.A. at 441 (M ot. Hr’g, Rush Direct). purchased marijuana at the market in quantities up to a pound; 4 (8) Smith, a market employee, testified that during his shift On cross exam ination, defense counsel impeached R ush with a prior nine out of ten customers came to purchase marijuana and affidavit from his own arrest in which he told the arresting officers that he had been selling marijuana over the past two months o nly. J.A. at 452-53 that ordinarily there were sixty-five to seventy market (Mo t. Hr’g, Rush Cross Exam.). customers during his shift; and (9) Kevin Dempsey testified that he worked at the market and assisted Darwich with the 5 Spe cifically, Rush testified that “[S]ometimes when I dropped one sale of marijuana. Dodge provided additional drug quantity of them off they tell me that, you know, if I picked them up I seen them the next day, that I packed up a pound or I did two pounds or a pound and a half, like that, you know.” J.A. at 443 (M ot. Hr’g, Rush Direct). On re- 2 cross examination Rush stated that his nephews worked “[p]ossibly every Before the grand jury, Easterling testified that there were other night beca use [he] would dro p them off just about every day, every baggers wh om D arwich referred to as the “camel peop le.” night.” J.A. at 456 (Mo t. Hr’g, Rush Re-cross Exam.). Nos. 99-2147; 01-2044 United States v. Darwich 7 8 United States v. Darwich Nos. 99-2147; 01-2044

Darwich called the next witness, Easterling. Easterling positions on sentencing. Ultimately, the district court agreed testified that she began bagging marijuana in September with the PSR calculations and the government when it 1997. She also testified that she did not bag every day and determined that Darwich was responsible for the distribution that there were periods of time when she did not bag of 236 kilograms of marijuana. The district court explained marijuana at all. Easterling indicated that she worked three or its reasoning: four days each week. Although Easterling never weighed the marijuana, she initially estimated that she bagged one-half of Several witnesses’ testimony established that Defendant a pound to one pound on the days when she worked. After sold marijuana in large quantities. Earhardt’s [sic] grand further probing, Easterling admitted that it actually may have jury testimony established that he bought “nickel bags” been less than one-quarter of a pound and that she really did from Defendant ten times and a pound of marijuana on not know the precise figure. In addition, Easterling testified twenty occasions. Drappeaux’s grand jury testimony that during her twelve-hour work days, she never saw anyone showed that she purchased up to one pound of marijuana besides Darwich and Dempsey, thereby eliminating any from Defendant more than twenty times. Alquiza possibility that she worked in conjunction with Rush’s testified before the grand jury that he was a regular nephews. In response to a question from the judge, Easterling purchaser of marijuana at the Canfield Market, responded that she filled 300 to 325 nickel bags on the days purchasing up to a pound at a time. Finally, Orlando when she worked. Rush testified at the evidentiary hearing that he would purchase anywhere from one ounce to one pound of The final witness was Smith, a Canfield Market employee. marijuana from Defendant for resale, plus smaller On direct examination, Smith admitted that he was not at the amounts for personal use. store every day and that there were times when he was absent due to vacation, hospitalization, and his other jobs. He also In addition to Defendant’s large-quantity sales, the testified that between 1997 and the early part of 1998, the testimony at the hearing demonstrated that Defendant store was closed for at least four weeks. Smith admitted also sold a great deal of marijuana in smaller quantities. seeing Darwich sell nickel bags of marijuana, but testified Arthur Pace’s grand jury testimony established that that he never saw Darwich distribute any larger amounts. Defendant paid him $300 a week to bag marijuana. Although Smith admitted that his statement before the grand Easterling testified at the hearing that she would bag jury that nine out of ten customers bought marijuana was a anywhere from a half pound to a pound of marijuana for guess, on cross examination he repeated that during his shift,6 Defendant. Further she stated that when she did work, nine out of ten customers bought nickel bags. she filled between 300 and 325 bags of marijuana.

At the completion of the four witnesses’ testimony, the This Court was also impressed by the testimony which court instructed the parties to submit briefs arguing their showed that the Canfield Market was basically a drug operation and not a market selling legitimate consumer goods. Lippett testified before the grand jury that eight 6 of ten customers at the Canfield Market were there to Smith worked the evening shift from 5 :00 p .m. until closing. Sm ith testified that Darwich closed the store between 10:00 and 11:00 p.m. purchase marijuana. Smith testified before the grand jury However, Dodge was recalled at the end of the evidentiary hearing and that nine of ten customers at the Canfield Market testified that the electronic surveillance indicated the store close d almost purchased marijuana. Smith reiterated this testimony at every night at 9:00 p.m. Nos. 99-2147; 01-2044 United States v. Darwich 9 10 United States v. Darwich Nos. 99-2147; 01-2044

the hearing, again stating that nine of ten customers decided Apprendi. In light of the Court’s decision in purchased marijuana. Smith also testified that the Apprendi and the government’s failure to allege any specific Canfield Market did not have any milk, eggs, or bread in quantity of marijuana in the indictment, both Darwich and the the store. government filed motions in this court waiving oral argument and requesting that the case be remanded to the district court Finally, Rush testified that his nephews worked for for resentencing to the statutory maximum of sixty months Defendant for about two years. Rush’s nephews worked consistent with 21 U.S.C. § 841(b)(1)(D). The motion was every night, and Rush was aware of this fact because he granted, and on remand, the district court adamantly declined would drive his nephews to Defendant’s house. Rush to resentence Darwich pursuant to § 841(b)(1)(D). The court learned, through his nephews, that they would package stated that it had expended resources on Darwich’s case and between one and two pounds of marijuana a night for had found that he was responsible for 236 kilograms of Defendant. marijuana. In its opinion issued on July 10, 2001, and relying on United States v. Strayhorn, 250 F.3d 462 (6th Cir. 2001), United States v. Darwich, No. 98-80508, at 10-11 (Sept. 30, overruled on other grounds by United States v. Leachman, 1999). 309 F.3d 377 (6th Cir. 2002),7 the district court determined that, although quantity was not alleged in the indictment, the On October 4, 1999, Darwich was sentenced to eighty-eight evidence on quantity was established beyond a reasonable months in prison and four years of supervised release. That doubt. The district court relied on the same analysis same day, Darwich filed a notice of appeal to this court. The contained in its September 30, 1999 opinion and concluded central argument he raised in his appellate brief was that even that Darwich was responsible beyond a reasonable doubt for though the United States Attorney and Darwich had stipulated more than 100 but less than 400 kilograms of marijuana. On to a base-offense-level calculation, the district court July 16, 2001, Darwich appealed to this court from the district predetermined the sentence Darwich would receive based on court’s judgment resentencing him to eighty-eight months of the ninety-six month figure in the plea agreement without imprisonment based on its determination that the quantity considering the stipulation or the testimony at the evidentiary evidence was proved beyond a reasonable doubt.8 hearing. Specifically, the district judge said on the record, “I took a plea wherein the Court was under the impression that ninety-six months was the cap and that’s what I think is appropriate in this case.” J.A. at 498 (Mot. Hr’g). In 7 Strayhorn concludes that on remand a district court can correct an contrast, the government argued that the district court merely Apprendi error in the guilty plea context by determining the necessary declined to accept the parties’ proffered modified plea drug quantity under the proper beyond-a-reasonable-doubt standard or by agreement which stipulated the sentence and instead the court adhering to 21 U .S.C. § 84 1(b)(1 )(D) and the Sentencing G uidelines to resentence the defendant. United States v. Strayhorn, 250 F.3d 462, 471 affirmed its adherence to the ninety-six month cap provided (6th Cir. 2001). in the original Rule 11 plea agreement. In essence, the government argued, the district court merely refused to 8 The original app eal in this case was numbered No. 99-2147. After surrender its function of determining the appropriate sentence. the district judge issued its second opinion on remand, the parties moved to recall the mandate in the 99-2147 appeal, and a divided panel of this After the government and Darwich filed their briefs for the court granted the motion to recall the mandate. On November 29, 2001, first appeal but before oral argument, the Supreme Court we granted D arwich’s motio n to co nsolidate the 99 -214 7 appeal with his appeal from the district court’s second opinion on remand. Nos. 99-2147; 01-2044 United States v. Darwich 11 12 United States v. Darwich Nos. 99-2147; 01-2044

II. ANALYSIS The Supreme Court announced in Apprendi that “[o]ther than the fact of a prior conviction, any fact that increases the A. Apprendi Error penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable The district court on remand chose to reassess the evidence doubt.” 530 U.S. at 490. After the landmark decision in against Darwich and determined that the same evidence that Apprendi, we determined that the federal drug statute’s established Darwich’s involvement with at least 100 progression of increased maximum penalties based on the kilograms of marijuana by a preponderance of the evidence amount of drugs in possession triggers Apprendi’s protection. pre-Apprendi was sufficient to meet the beyond-a-reasonable- See Strayhorn, 250 F.3d at 467-68; see also United States v. doubt requirement post-Apprendi. In order for the district Zidell, 323 F.3d 412, 427-28 (6th Cir. 2003) (stating that court to have reached this conclusion, it must have found Apprendi requires a defendant to be sentenced using the Darwich responsible for at least fifty kilograms of marijuana default statutory maximum “unless the jury determines beyond a reasonable doubt,9 for otherwise his eighty-eight beyond a reasonable doubt that the offense involved a month sentence would have exceeded the statutory maximum quantity of drugs that triggers an enhanced statutory alleged in the indictment. To arrive at this conclusion, the maximum”); United States v. Copeland, 321 F.3d 582, 602 district court relied on the same evidence that it used when it (6th Cir. 2003) (reiterating that we require proof beyond a found by a preponderance of the evidence that Darwich was reasonable doubt when sentencing drug offenders under the responsible for 236 kilograms of marijuana, which included “higher tiers” of the scheme set forth in § 841(b)). Thus, for substantial hearsay testimony. In this consolidated appeal, the purpose of establishing the statutory-maximum sentence Darwich argues that the district court improperly concluded for drug offenses, the drug amount must be proved beyond a that the drug quantity necessary to sentence him to eighty- reasonable doubt. United States v. Garcia, 252 F.3d 838, 842 eight months in prison pursuant to 21 U.S.C. § 841(b)(1)(C), (6th Cir. 2001). In United States v. Flowal, 234 F.3d 932 (6th U.S.S.G. § 2D1.1(a)(3), and U.S.S.G. § 2D1.1(c)(7) was Cir. 2000), overruled on other grounds by Leachman, 309 proved beyond a reasonable doubt. Thus, our analysis will F.3d at 383,10 we held that each provision of § 841(b) focus on the specific question of whether a district court’s use of hearsay testimony to establish drug quantity beyond a reasonable doubt violates Apprendi. This is a question of first 10 impression in the courts of appeals. Leachman partially overruled a number of cases in this circuit, see, e.g., United States v. Harper, 246 F.3d 520 (6th Cir. 2001), and United States v. Humphrey, 287 F.3d 422 (6th Cir. 2002), to the extent that the 9 Supreme Court in Harris v. United States, -- U.S. --, 122 S. Ct. 2406 If the district court could not find fifty kilograms beyond a (2002), held tha t Apprendi’s protections o nly extend to those situations reaso nable doub t, then the district court would have b een un able to where a fact not prove d beyond a reaso nable do ubt enhances a sentence Darwich under § 841 (b)(1)(C) with a maximum sentence of defendant’s sentence beyond the statutory maximum, and does not extend twenty years and instead would have had to sentence him under to those cases where the fact only increases the defendant’s statutory § 841(b)(1)(D ). Section 841(b)(1)(D) provides for a maximum sentence mandatory minimum. W e note tha t these cases rem ain binding precedent of five years (or sixty months) when the amount of marijuana established except insofar as they are inconsistent with Ha rris’s rule regarding is less than fifty kilograms. Thus, without finding beyond a reasonable statutory mandatory-minimum sentences. We cite these cases for the doubt the necessary fifty kilograms to bring Darwich’s sentence within proposition that the subsections of § 841(b) require that the drug quantity the purview of § 841(b)(1)(C), Darwich’s eighty-eight month sentence be proved beyond a reasona ble doubt or else the defendant can receive would violate the sixty-mon th statutory maxim um co ntained in only the default statutory-maximum penalty for offenses which do not § 841(b )(1)(D). state drug quantity. See generally United States v. Lopez, 309 F.3d 966, Nos. 99-2147; 01-2044 United States v. Darwich 13 14 United States v. Darwich Nos. 99-2147; 01-2044

provides for a different criminal offense with separate factor,” we must review whether the district court’s use of elements which all must be proved beyond a reasonable doubt hearsay testimony to establish the necessary drug quantity when a defendant guilty of a marijuana conspiracy is beyond a reasonable doubt is appropriate in light of sentenced in excess of the default statutory maximum set out Apprendi’s holding. Id. (citing United States v. Ramirez, 242 in § 841(b)(1)(D). Id. at 938; see also United States v. F.3d 348, 351 (6th Cir. 2001)). Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (continuing to hold, after Leachman, that § 841(b)(1)(D) is the statutory 1. Hearsay Testimony maximum sentence for conspiring to distribute an undetermined amount of marijuana), cert. denied, -- U.S. --, Although failure to raise an objection in the district court to 123 S. Ct. 1005 (2003). preserve an Apprendi issue limits appellate review to a plain error inquiry, see United States v. Page, 232 F.3d 536, 543 An Apprendi violation not only can occur when a case (6th Cir. 2000) (citing Fed. R. Crim. P. 52(b)), a pre-Apprendi proceeds to trial but also can occur when a defendant pleads defendant’s objection at the sentencing hearing to the quantity guilty to a drug offense. See Strayhorn, 250 F.3d at 468. If of drugs and the judge’s determination by a preponderance of an Apprendi error occurs in a situation involving a guilty plea, the evidence is sufficient to entitle the defendant to de novo the district court can cure the error by finding drug quantity review. See Copeland, 321 F.3d at 601; Humphrey, 287 F.3d beyond a reasonable doubt and sentencing the defendant at 445. In Strayhorn, the defendant preserved his challenge accordingly. Id. at 471. The justification for applying to his sentence by repeatedly objecting to the drug quantity Apprendi in the guilty plea context is that: determination at the plea hearing, at the sentencing hearing, and in written objections to the calculation of his base offense the defendant who pleads guilty to an unspecified level in his presentence report. See Strayhorn, 250 F.3d at amount of drugs and is then sentenced under the 467. We determined that although Strayhorn did not “utter preponderance-of-the-evidence standard may just as the words ‘due process,’” he nonetheless preserved his easily be subjected to an enhanced sentence in excess of challenge to the drug quantity determination. Id. Much like the default statutory maximum as the defendant who Strayhorn, Darwich adequately preserved his constitutional takes his case to trial and is then sentenced by the district challenge to the quantity determination under Apprendi. court under the same preponderance-of-the-evidence Darwich consistently objected, both in writing and orally, to standard. the PSR’s computation of a specific drug amount. Darwich objected to the drug quantity at the evidentiary hearing, Id. at 468. Because Strayhorn requires the district court, referencing the objections raised in his letter to the Probation when the defendant is subject to an enhanced sentence, to Department after it assessed the quantity. Darwich also consider “the determination of drug quantity under § 841(b) alerted the district court, at the plea hearing, that the amount . . . [as] an element of the offense rather than a sentencing of marijuana was in dispute. Thus, we review Darwich’s

970 (6th Cir. 2002) (noting that because the jury did not find beyond a reasonable doubt the necessary cocaine amounts for sentencing under §§ 841 (b)(1 )(A) o r 841(b)(1)(B ), Appren di would require that the defendant be sentence d und er the default statutory-maximum provision for cocaine contained in § 841(b)(1)(C)). Nos. 99-2147; 01-2044 United States v. Darwich 15 16 United States v. Darwich Nos. 99-2147; 01-2044

Apprendi challenge de novo because he adequately preserved kilogram quantity needed to sentence Darwich under § 841(b)(1)(C). his quantity claim.11 In the present case, the district court relied extensively on We have repeatedly held that hearsay is permissible at a Rush’s testimony12 that his nephews sometimes told him how sentencing hearing so long as it has some minimum indicia of many pounds of marijuana they bagged a night when he reliability. United States v. Davis, 170 F.3d 617, 622 (6th picked them up or happened upon them the next day. Rush’s Cir.), cert. denied, 528 U.S. 861 (1999); United States v. testimony regarding his nephews’ statements constitutes an Polselli, 747 F.2d 356, 358 (6th Cir. 1984), cert. denied, 469 out-of-court statement “offered in evidence to prove the truth U.S. 1196 (1985). Federal Rule of Evidence 1101(d)(3) of the matter asserted,” and it therefore meets the definition provides that the rules of evidence are “inapplicable” to of hearsay provided in Federal Rule of Evidence 801(c). Fed. “[m]iscellaneous proceedings,” including sentencing R. Evid. 801(c). However, Rule 801(d)(2)(E) provides that a hearings. Fed. R. Evid. 1101(d)(3). Although we recognize statement is not hearsay if: “[t]he statement is offered against this court’s traditional acceptance of hearsay testimony at a party and is . . . a statement by a coconspirator of a party sentencing, we take our direction from Strayhorn that drug during the course and in furtherance of the conspiracy.” Fed. quantity is considered an element of the offense and not a R. Evid. 801(d)(2)(E). “In order to admit the statement of a sentencing factor when such quantity alters the statutory- co-conspirator under . . . [Rule] 801(d)(2)(E), it must first be maximum sentence the defendant could receive. Strayhorn, determined that the conspiracy existed, that the defendant was 250 F.3d at 468 (citing Ramirez, 242 F.3d at 351); see also a member of the conspiracy, and that the co-conspirator’s Zidell, 323 F.3d at 427-28 (noting that specific cocaine statements were made in furtherance of the conspiracy.” quantities must be proved beyond a reasonable doubt in order United States v. Gessa, 971 F.2d 1257, 1261 (6th Cir. 1992) to sentence a defendant using the enhanced-penalty provisions (en banc) (internal quotation marks omitted); see also United of 21U.S.C. §§ 841(b)(1)(A) and 841(b)(1)(B)). In keeping States v. Hamilton, 689 F.2d 1262, 1268 (6th Cir. 1982), cert. with this principle, we hold that the normal rules of evidence denied, 459 U.S. 1117 (1983) (noting that these elements should apply when Apprendi requires the district court to find must be proved by a preponderance of the evidence). A the drug quantity beyond a reasonable doubt, and therefore it is not permissible to use hearsay evidence to reach the fifty- 12 Specifically, the testimony revealed: MR. TURK EL: And you said [yo ur nep hews] indicated to you the amount of marijuana that [Darwich] was 11 selling? W hile it is true that a defendant’s failure to ob ject to his sentence before the district court on the same ground raised on appeal limits our MR. RUSH: That they wo uld package up each night. review to plain error, United States v. Stubbs, 279 F.3d 402, 407 (6th Cir. 200 2), we conc lude that de novo review is appropriate because Darwich MR. TUR KEL: W hat did they tell you? objected to Rush’s hearsay testimony in a supp lement to his objections to the PSR. J.A. at 84 (Supp. to Sentencing M em. & O bjections). T hus, MR. RUSH: W ell, sometimes when I dropped one of them even though the gravamen of Darwich’s appeal involves a determination off they tell me that, you know, if I picked of whether Apprendi allows hearsay testimony to be co nsidered in proving them up I seen them the next day, that I drug quantity beyond a reasonable doubt, de novo review remains the packed up a pound or I did two pounds or a proper standard of review because Darwich objected to his sentence pound and a half, like that, you know. before the d istrict court on the same gro unds. J.A. at 443 (Tr. of Mo t. Hr’g, Rush Direct Exam.). Nos. 99-2147; 01-2044 United States v. Darwich 17 18 United States v. Darwich Nos. 99-2147; 01-2044

statement is considered to be in furtherance of the conspiracy other than the illegal nature of the work, are no different than “if it is intended to promote the objectives of the conspiracy.” a statement by a farmer that he harvested forty acres of wheat United States v. Monus, 128 F.3d 376, 392 (6th Cir. 1997) by sundown. Because Rush’s testimony with respect to his (quotation omitted); Hamilton, 689 F.2d at 1270; see also nephews’ out-of-court statements is hearsay13 that does not United States v. Doerr, 886 F.2d 944, 951 (7th Cir. 1989) fall within an exception to the general rule, it was error for the (“We recently emphasized that the in furtherance requirement district court to rely on this evidence. of Rule 801(d)(2)(E) is a limitation on the admissibility of coconspirators’ statements that is meant to be taken Without Rush’s testimony regarding his nephews’ seriously.” (internal quotation marks omitted)). statements, the only other way for the district court to reach the necessary fifty kilograms beyond a reasonable doubt is Applying the test of Gessa, we do not question that a through Dodge’s testimony restating the testimony of grand conspiracy existed or that Darwich was an active participant jury witnesses. If permissible evidence, Dodge’s testimony in the conspiracy. However, we conclude that Rush’s would provide substantial evidence on the drug quantity nephews’ statements were not made in furtherance of the question. However, Agent Dodge’s testimony also comes conspiracy. As an initial matter, it is quite clear that mere within the definition of hearsay provided in Federal Rule of “idle chatter or casual conversation about past events” is not Evidence 801(c) because it constitutes an out-of-court considered a statement “in furtherance of the conspiracy.” statement “offered in evidence to prove the truth of the matter United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000) asserted.” Fed. R. Evid. 801(c). One potentially applicable (quotation omitted); see also United States v. Salgado, 250 exception, Federal Rule of Evidence 804(b)(1), provides that F.3d 438, 449-50 (6th Cir.), cert. denied, 534 U.S. 916 and former testimony, “given as a witness at another hearing of 534 U.S. 936 (2001); United States v. Foster, 711 F.2d 871, the same or a different proceeding,” will not be excluded by 880 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984) the hearsay rule if the declarant is unavailable and “the party (noting that “mere narrative declarations” made without the against whom the testimony is now offered . . . had an intent to induce assistance for the conspiracy do not fall opportunity and similar motive to develop the testimony by within the “strict requirements” of Rule 801). The nephews’ direct, cross, or redirect examination.” Fed. R. Evid. statements as to how much marijuana they bagged were 804(b)(1). Here, regardless of whether the grand jury neither attempts to “keep[] co-conspirators advised,” Tocco, witnesses properly could be considered “unavailable,” 200 F.3d at 419, nor were they “[s]tatements that identify Darwich had no opportunity to cross examine these participants and their roles in the conspiracy.” Monus, 128 witnesses.14 Therefore, the grand jury testimony does not fall F.3d at 393 (internal quotation marks omitted). It is apparent from the transcripts of Rush’s testimony that these statements were casual conversation about past events. Rush’s testimony 13 Rush also testified regarding his own purchases from Darwich of itself indicates that his nephews made these statements only marijuana for personal use and for resale. The district court could have occasionally; if he happened to pick his nephews up or see relied on this testim ony in its attempt to determine whether the evidence them in passing, they “sometimes” mentioned to him how establishes fifty kilogra ms beyond a reasonable d oub t. much marijuana they had bagged the previous night. J.A. at 14 443 (Tr. of Mot. Hr’g, Rush Direct Exam.). In sum, these W e note tha t both E asterling and S mith testified at the evidentiary statements are simply casual conversation — indicative of hearing on Darwich’s objections to the P SR’s drug quantity calculations and, thus, were subject then to cross examination. Conservatively how hard the nephews worked on a particular evening — and, calculating the amount o f drugs m entioned in the ir com bined testimony, Nos. 99-2147; 01-2044 United States v. Darwich 19 20 United States v. Darwich Nos. 99-2147; 01-2044

within the former-testimony exception to the hearsay rule. certain circumstances” is admissible pursuant to Rule 807). Cf. United States v. Foster, 128 F.3d 949, 954-56 (6th Cir. This rule requires that before Rule 807 can apply, the 1997) (holding that when the defendant’s witness is evidence must have “equivalent circumstantial guarantees of unavailable and the government had the same motive and trustworthiness” as compared to evidence admitted under the opportunity to develop the witness’s testimony at the grand other hearsay exceptions contained in Rules 803 and 804. jury proceeding, the requirements of 804(b)(1) are satisfied). Fed. R. Evid. 807; see Barlow, 693 F.2d at 962. In addition, as stated by the rule, the evidence admitted must go to a On occasion, when a statement is inadmissible hearsay “material fact,” must be more probative than any other under Federal Rules of Evidence 803 and 804, it still can be evidence that reasonably could have been procured, and its admitted under Federal Rule of Evidence 807, the residual admission must support the general purposes of the Rules of hearsay exception.15 United States v. Laster, 258 F.3d 525, Evidence and “the interests of justice.” Fed. R. Evid. 807; see 530 (6th Cir. 2001), cert. denied, 534 U.S. 1151 (2002);16 see United States v. Canan, 48 F.3d 954, 959 (6th Cir. 1995). also United States v. Barlow, 693 F.2d 954, 961-63 (6th Cir. While balancing all of these concerns, the district court also 1982), cert. denied, 461 U.S. 945 (1983) (holding that the must consider the “independent restrictions” on the admission grand jury testimony of an unavailable17 witness “under of certain evidence contained in the Confrontation Clause of the Sixth Amendment which protects a criminal defendant’s right to confront the witnesses against him and to challenge however, we cannot reach the necessary drug quantity beyond a their testimony through cross examination. Canan, 48 F.3d reaso nable doubt. at 959-960. 15 Rule 80 7 states: Without proper cross examination,18 the statements of A stateme nt not sp ecifically covered by Rule 803 o r 804 but Rush’s nephews cannot be deemed to have “equivalent having equivalent circum stantial guarantees of trustworthiness, circumstantial guarantees of trustworthiness.” These is not excluded by the hearsay rule, if the court determines that statements were off-the-cuff estimations subject to (A) the statem ent is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is miscalculations and/or inaccurate representations, creating the offered than any other evidence which the proponent can precise type of problem that the hearsay rule is designed to procure through reasonable efforts; and (C) the general purposes prevent. An opportunity to cross examine Rush’s nephews in of these rules and the interests of justice will best be served by this situation is the only way that Darwich would be able to admission of the statement into evidence. Fed. R. Evid. 807.

16 I dissented in Laster based on the majority’s expansive reading of 961 (internal quotation omitted) (analyzing the precursor to Rule 807, the residual hearsay exception that directly conflicted with both the plain Rule 804(b)(5)). W hen analyzing the admissibility under the language of the Rule and the legislative history. See Laster, 258 F.3d at Confrontation Clause of prior testimony, the Supreme Court has stated 533 (Moore, J., dissenting). Although I continue to believe that my view that the declarant must be unavailable and the testimony must have is the pro per interpretation of Rule 807, I recognize that Laster is the sufficient indicia o f reliability. See White v. Illinois, 502 U.S. 346, 354 current law of the circuit. (1992); Oh io v. Robe rts, 448 U.S. 56, 65-66 (1980).

17 18 In Barlow, we defined unavailability as including a situation when The Supreme Co urt considers cross exam ination to be the “greatest “a witness persists in refusing to testify concerning the subject matter of legal engine ever invented for the discovery of truth.” California v. his stateme nt desp ite an order of the co urt to do so .” Barlow, 693 F.2d at Green, 399 U.S. 149, 158 (1970) (internal quotation and citation omitted). Nos. 99-2147; 01-2044 United States v. Darwich 21 22 United States v. Darwich Nos. 99-2147; 01-2044

explore any concerns with the integrity and accuracy of these coconspirators, this court stated in Gomez-Lemos that there is statements. Moreover, we also must consider the source “a strong presumption against the trustworthiness of co- when evaluating the reliability of this hearsay testimony. The conspirators’ statements that are made after a conspiracy has testimony was offered by Rush when he was in a likely terminated in arrest.” Gomez-Lemos, 939 F.2d at 329. We position to supply self-serving testimony. While this further stated that: “outside of the co-conspirator exception testimony does not exculpate Rush at the expense of to the hearsay rule (where a statement is made during the implicating Darwich, it is the exact testimony the government course of the conspiracy and not after it has ended), the sought when it presented Rush with a deal. Rush’s testimony Supreme Court has consistently concluded that the uncross- suffers from the same infirmities as that of a coconspirator examined testimony of an alleged co-conspirator is not because the government promised Rush a chance at a reduced sufficiently reliable to meet the requirement of the sentence in exchange for his testimony against Darwich. See Confrontation Clause.” Id. at 332. Thus, we conclude that United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir. this grand jury testimony, at least with respect to those grand 1991); see generally Bruton v. United States, 391 U.S. 123, jury witnesses who did not also testify at the evidentiary 141 (1968) (White, J. dissenting) (stating that the confession hearing,19 lacks the necessary reliability to fall within the of a codefendant is less credible than ordinary hearsay residual hearsay exception.20 evidence “[d]ue to [the codefendant’s] strong motivation to implicate the defendant and to exonerate himself”); Miller v. 2. Insufficient Remaining Evidence Field, 35 F.3d 1088, 1092-93 (6th Cir. 1994) (noting that with respect to testimony from the alleged assailants who were also The only remaining evidence that the district court can use facing criminal charges, “the possibility certainly existed that to arrive at the fifty-kilogram mark beyond a reasonable doubt they would tailor their comments to the investigator so as to comes from Easterling’s and Smith’s testimony at the promote their own best interests”). As a final matter, evidentiary hearing, Dodge’s testimony regarding marijuana although the nephews’ statements regarding drug quantity go seized during the search, and Rush’s testimony regarding his to a material fact, the government has not shown that Rush’s own purchases. Dodge testified that during the search of the hearsay testimony is “more probative” than any other market approximately 655.4 grams (.655 kilograms) of evidence it could have procured using reasonable efforts. marijuana was confiscated. Rush testified that he bought three to five nickel bags of marijuana “basically” every day To ensure “equivalent circumstantial guarantees of from Darwich over a nine-month period. During the same trustworthiness” in the context of admitting grand jury testimony under the residual hearsay exception, Barlow listed the important factors, including: “the declarant’s relationship 19 All grand jury witnesses, other than Easterling and Smith, fall with both the defendant and the government, the declarant’s within this category. motivation to testify before the grand jury, the extent to which the testimony reflects the declarant’s personal knowledge, 20 Even if the hearsay testimony could have been considered reliab le whether the declarant has ever recanted the testimony, and the and trustworthy, it still would not be ad missible under Rule 807 . Rule existence of corroborating evidence available for cross- 807 requires that the “statem ent is more probative on the point for which examination.” Barlow, 693 F.2d at 962 (emphasis added). it is offered than any other evidence which the proponent can procure With respect to Dodge’s testimony repeating the statements through reasonable efforts.” In this case the government has not shown how it exerted reasonable efforts to secure the testimony of the grand jury of the grand jury witnesses, many of whom were arguably witnesses at the evidentiary hearing as requested by Darwich. Nos. 99-2147; 01-2044 United States v. Darwich 23 24 United States v. Darwich Nos. 99-2147; 01-2044

nine months, he also purchased anywhere from a half ounce pounds, which converts to 4.535970 kilograms.22 With to a pound every couple of weeks for further resale. Although respect to Easterling’s testimony, a conservative calculation Easterling admitted that there were times when she did not could find that she bagged 300 nickel bags at one gram of bag marijuana for Darwich, she estimated that, starting in marijuana each, three times a week, from September 1997 September 1997, she worked three to four days a week through April 1998 (the end-date of the conspiracy as bagging nickel bags for Darwich. Easterling attempted to specified in the indictment). This equation would yield 31.5 calculate the amount of marijuana she bagged in terms of kilograms of bagged marijuana.23 Finally, analyzing Smith’s pounds per day but ultimately testified that she filled between testimony conservatively and in keeping with the Probation 300 and 325 nickel bags each day she worked. Smith testified Department’s formula, we conclude that if fifty-eight that nine out of ten market customers purchased nickel bags customers bought nickel bags containing one gram of during his shift at the Canfield Market. marijuana five days per week24 for the two years of the conspiracy (104 weeks), the amount of marijuana sold would We previously have instructed that “when choosing total 30.16 kilograms. between a number of plausible estimates of drug quantity, . . . a court must err on the side of caution.” United States v. Although if we added all of these figures together we would Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. surpass the fifty kilograms needed, using the rule of Walton, 906, and 498 U.S. 989, and 498 U.S. 990 (1990); Arredondo Darwich’s argument against double-counting has particular v. United States, 178 F.3d 778, 787 (6th Cir. 1999). Using relevance. Darwich argues on appeal that in order to reach this principle as a guide, we must assign equivalent values of the fifty kilograms beyond a reasonable doubt, the sentencing marijuana to the admissible testimony. Dodge’s testimony court must refrain from considering evidence of bagged can be taken at face value because he attested to an amount of marijuana in conjunction with evidence of purchased marijuana that was actually confiscated by the FBI agents. marijuana. Darwich contends that if the court adds all of All the other witnesses provided figures subject to these figures to reach a drug quantity, the final drug count interpretation, and therefore the results must be cautiously would be inflated because the marijuana bagged for sale is the analyzed. The district court comfortably could have same marijuana that was purchased at the market. We agree determined that Rush purchased three nickel bags containing with this position and determine that in order to reach the one gram of marijuana each, seven times a week, for a nine- necessary fifty kilograms beyond a reasonable doubt the month (or thirty-nine week) period, which yields 819 grams of marijuana (.819 kilograms).21 Applying a formula for the larger quantities purchased by Rush, the district court could 22 One kilogram eq uals 2.204 6 pounds. have estimated conservatively that he bought one half of a pound, every two weeks, during the nine-month period 23 300 grams x 3 d ays x 35 weeks = 31,500 grams (31.5 kilograms). (approximately twenty weeks). This equation would yield 10 24 W hile it is true that during the six months that Canfield Market was under surveillance the marke t generally was open seven days a week, Smith’s testimony revealed that the store was closed for extended periods of time when D arwich was on vaca tion, when the store was robbed, and 21 twice when Darwich was in the hospital, once recovering from a gun-shot 3 grams x 7 days x 39 weeks (nine months) = 819 grams (.819 wound and once after a suicide attempt. All tolled, Smith accounted for kilograms). at least four weeks from 1997 to 1998 when the market was closed. Nos. 99-2147; 01-2044 United States v. Darwich 25 26 United States v. Darwich Nos. 99-2147; 01-2044

amount of marijuana sold must be considered separately from unfounded assumptions to conclude that Smith’s testimony the amount bagged for sale. The proffered evidence shows alone would suffice. that the total amount in bagged marijuana was just over thirty kilograms, nearly twenty kilograms shy of the fifty-kilogram In conclusion, the district court’s acceptance of hearsay mark. The evidence of sales established that Darwich sold testimony to reach the necessary fifty kilograms beyond a just over thirty-six kilograms of marijuana from the Canfield reasonable doubt was erroneous. Without establishing that Market. Thus, neither of these figures is sufficient to Darwich was responsible for at least fifty kilograms of establish fifty kilograms beyond a reasonable doubt. marijuana beyond a reasonable doubt, the court cannot sentence Darwich under § 841(b)(1)(C), and instead must The dissent makes three critical errors to reach its sentence him under § 841(b)(1)(D) which establishes a sixty- conclusion that drug quantity was established beyond a month maximum for quantities of marijuana under fifty reasonable doubt. First, it relies solely on Rush’s hearsay kilograms. 21 U.S.C. § 841(b)(1)(D). Therefore, Darwich’s testimony to establish the drug quantity beyond a reasonable sentence of eighty-eight months is improper because it doubt by finding that it falls within the “statement by a co- subjects him to a sentence in excess of the statutory maximum conspirator” exemption from the hearsay rule. Second, it fails in violation of his constitutional right to have each element of to address the inadmissibility of Dodge’s hearsay testimony the offense proved beyond a reasonable doubt. regarding the grand jury testimony. And third, it neglects the long-standing principle that a sentencing court is instructed to B. Sufficiency of the Evidence at Sentencing “err[] on the side of caution when calculating drug quantities.” Arredondo, 178 F.3d at 787. The dissent also Darwich, in a series of fact-based objections, challenges the hypothesizes that it is feasible to reach the necessary fifty district court’s finding by a preponderance of the evidence kilograms through Smith’s testimony alone by deriving a that he is responsible for 236 kilograms of marijuana over the formula from his testimony regarding the average number of length of the conspiracy.26 Specifically, Darwich argues that drug buys during his shift at the Canfield market. In a the district court erred by double-counting the amount of footnote, the dissent applies this formula of purchases per marijuana to reach the necessary drug figures, by failing to hour to the hours the Canfield market conducted business, account for interruptions in drug activity, and by relying on assuming that sales took place at a constant rate throughout the day. Although the dissent mentions this evidence as an aside, it is, nonetheless, surprising that the dissent would even purchased nickel bags conta ining 1.5 grams of marijuana five days per tentatively indicate that such an extrapolation would provide week for the two years of the conspiracy establishes only 49.14 kilograms evidence of drug quantity beyond a reasonable doubt. As of marijuana. stated above, Smith’s testimony only yields 30.16 kilograms 26 of marijuana.25 The dissent’s approach makes broad Even though we already have d etermined that Da rwich’s sentence is in conflict with Apprendi, we still need to address Darwich’s sufficiency of the evidence challenges to his base o ffense level because on remand Darwich’s total offense level can impact his ultimate sentence 25 provided that the total offense level permits the district court to sentence Even ignoring our duty to “err o n the side of caution,” we still fall him to less than the sixty-month maximum. The sentencing guidelines short of the necessary fifty kilograms when we use the number of require that Darwich must be involved with at least 100 kilogram s by a customers and amount of marijuana consistent with the higher ranges preponderance of the evidence before Darwich can receive the base provided by Smith’s testimony, i.e., assuming sixty-three customers offense level 26 that he was assigned at sentencing. Nos. 99-2147; 01-2044 United States v. Darwich 27 28 United States v. Darwich Nos. 99-2147; 01-2044

Rush’s purportedly incredible testimony. Although we preponderance of the evidence of at least 100 kilograms of addressed some of Darwich’s arguments in our Apprendi marijuana. discussion, we now will address them in the context of whether the district court could properly assign Darwich a As discussed in the preceding section, a conservative base offense level of 26, which requires finding by a estimate from Easterling’s testimony results in a finding that preponderance of the evidence involvement with more than she bagged 31.5 kilograms of marijuana. In addition, the less 100 and less than 400 kilograms of marijuana. stringent evidentiary standards applicable to sentencing allow the district court to consider Dodge’s hearsay testimony We review for clear error the district court’s factual reiterating the testimony before the grand jury. Dodge findings on drug quantity attributable to a defendant for testified that Arthur Pace told the grand jury that he bagged sentencing purposes. United States v. Mahaffey, 53 F.3d 128, one pound of marijuana each night during the fall of 1997. 131 (6th Cir. 1995); United States v. Walton, 908 F.2d 1289, This yields yet another 41.2 kilograms.27 Rush’s testimony 1300-01 (6th Cir.), cert. denied, 498 U.S. 989 (1990). “A repeating his nephews’ statements is also fair game when finding of fact will only be clearly erroneous when, although establishing drug quantity for sentencing by a preponderance there may be some evidence to support the finding, ‘the of the evidence. Rush testified that his nephews bagged a reviewing court on the entire evidence is left with the definite pound each night for the length of the two-year conspiracy. and firm conviction that a mistake has been committed.’” Using a mere fraction of this testimony provides adequate United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997) evidence of drug quantity in excess of 100 kilograms. Thus, (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 the district court did not clearly err in determining that (1985)), cert. denied, 523 U.S. 1086, and 523 U.S. 1101, and Darwich’s conspiracy involved at least 100 kilograms of 524 U.S. 920 (1998). If the district court interprets the marijuana. evidence in a manner consistent with the record, we are required to uphold its decision even if we would have reached 2. Interruptions in Activity the opposite conclusion. Anderson, 470 U.S. at 573-74 (“Where there are two permissible views of the evidence, the Darwich argues that the district court’s drug-quantity factfinder’s choice between them cannot be clearly findings did not adequately account for periods of time when erroneous.”). the Canfield Market was closed. The district court had determined that the probation department’s aggregating 1. Double-Counting at Sentencing formula was sufficient to account for the minor interruptions cited by Darwich. Darwich raises a double-counting argument concerning the district court’s calculations to establish drug quantity by a The district court did not clearly err when it found Darwich preponderance of the evidence, in which Darwich argues that responsible for a conspiracy involving, by a preponderance of the district court improperly combined both bagged and sold the evidence, at least 100 kilograms of marijuana. First, the marijuana to reach an inflated quantity. Separating the surveillance of the Canfield Market indicated that the store evidence of bagged marijuana from the evidence of marijuana was open seven days a week, whereas the probation sales, we believe that it is clear that using evidence of the bagging operation alone results in an easy finding by a 27 1 lb. x 7 days x 13 weeks (3 months) = 91 lbs. (41.2 kilograms). Nos. 99-2147; 01-2044 United States v. Darwich 29 30 United States v. Darwich Nos. 99-2147; 01-2044

department’s formula calculating drug quantity used a five- (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 day-per-week assumption. It is not clearly erroneous for the (1985)). We will uphold the district court’s decision as long district court to determine that the formula’s use of fewer as it has interpreted the evidence in a manner consistent with days adequately compensates for any periods in which the the record. Anderson, 470 U.S. at 573-74. “Where there are market was closed. Second, as stated above, the evidence of two permissible views of the evidence, the factfinder’s choice marijuana sales is not necessary for a finding that Darwich’s between them cannot be clearly erroneous.” Id. at 574. conspiracy involved by a preponderance of the evidence more than 100 kilograms of marijuana because the evidence of U.S.S.G. § 2D1.1(b)(1) orders sentencing courts to increase bagged marijuana alone is enough to reach that mark the defendant’s sentence by two levels “[i]f a dangerous comfortably. Thus, Darwich’s argument that the Canfield weapon (including a firearm) was possessed.” U.S.S.G. Market was closed on a number of occasions has no bearing § 2D1.1(b)(1) (2001). The sentencing court is instructed to on whether the bagging operation continued uninterrupted. apply the two-level enhancement when a weapon is present, “unless it is clearly improbable that the weapon was 3. Unreliable Testimony connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3. This requirement for a strict sentence enhancement “reflects Darwich contends that the district court should not have the increased danger of violence when drug traffickers relied on Rush’s testimony because it was procured by the possess weapons.” Id. The government bears the burden of government’s promise to Rush of a reduced sentence. We showing by a preponderance of the evidence that the previously have stated that “[w]e are generally reluctant to set defendant either “actually or constructively possessed the aside credibility determinations made by the trier of fact, who weapon.” United States v. Hough, 276 F.3d 884, 894 (6th has had the opportunity to view the witness on the stand and Cir.), cert. denied, 535 U.S. 1089, and -- U.S. --, 123 S. Ct. assess his demeanor.” Peveler v. United States, 269 F.3d 693, 199 (2002). “Constructive possession of an item is the 702 (6th Cir. 2001). In keeping with this principle, we find ownership, or dominion or control over the item itself, or no reason to disrupt the district court’s determination that dominion over the premises where the item is located.” Rush’s testimony was credible, after the district court had a United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert. first-hand opportunity to observe him. denied, 519 U.S. 858 (1996) (citation and internal quotations omitted). Once the government meets its burden of showing C. Sentence Enhancements that the defendant possessed a weapon, a presumption arises that “the weapon was connected to the offense.” Hough, 276 1. Firearm Enhancement F.3d at 894. The burden then shifts to the defendant to “show that it was ‘clearly improbable’ that the weapon was “A district court's finding that a defendant possessed a connected with the crime.” Id. The district court applies the firearm during a drug crime is a factual finding subject to the two-level enhancement if the defendant fails to meet this clearly erroneous standard of review.” Bartholomew, 310 burden. United States v. Miggins, 302 F.3d 384, 391 (6th F.3d at 924 (quotation omitted). “A finding of fact will only Cir.), cert. denied, -- U.S. --, 123 S. Ct. 712 (2002), and -- be clearly erroneous when, although there may be some U.S. --, 123 S. Ct. 909, and -- U.S. --, 123 S. Ct. 1772 (2003). evidence to support the finding, ‘the reviewing court on the entire evidence is left with the definite and firm conviction The PSR recommended an enhancement based upon the that a mistake has been committed.’” Latouf, 132 F.3d at 331 seven firearms found pursuant to lawful searches of Nos. 99-2147; 01-2044 United States v. Darwich 31 32 United States v. Darwich Nos. 99-2147; 01-2044

Darwich’s home. The district court accepted these participants or if it could not be considered extensive. recommendations. On appeal, Darwich contends that the U.S.S.G. § 3B1.1(c). We review factual findings made by the weapons found in his home were not sufficiently linked to the district court when determining the appropriate sentence for drug activities that took place at the Canfield Market. In clear error. United States v. Mahaffey, 53 F.3d 128, 131 (6th support of his position, Darwich cites United States v. Peters, Cir. 1995). 15 F.3d 540 (6th Cir. 1994), a case involving cocaine seized in plain view from the top of a dresser. However, in Peters, In the PSR, the probation department recommended that the the sentencing court did not apply the firearm enhancement district court give Darwich a four-point enhancement for his even though a pistol with a fully loaded magazine was found leadership role in the offense. Darwich objected to this in a zippered pouch in the dresser drawer, because it enhancement. At sentencing, the district judge agreed with determined that the pistol was not connected to the drug the probation department, overruled Darwich’s objection, and offense. Id. at 546. We upheld the district court’s decision, applied the four-level enhancement. Specifically, the district noting our deferential posture when reviewing for clear error. court stated in response to Darwich’s objections that Id. “paragraph twenty-six speaks of a four point enhancement for adjustment in the role of the offense. And I’m denying the While Darwich might be correct in his position that the objections to that enhancement for the reasons stated by the government failed to demonstrate how these weapons were United States Probation Department.” J.A. at 507 connected to the Canfield Market activities, the weapons (Sentencing Tr.). surely could have been connected to the bagging operation that took place in his home. Because the weapons were found On appeal, Darwich argues that the district court did not in Darwich’s home where the drugs were bagged, a make specific factual findings on the question of leadership presumption arose that “the weapon[s were] connected to the and instead relied on the PSR in deciding to apply the offense.” Hough, 276 F.3d at 894. Once this presumption enhancement. At the time the district court held Darwich’s takes effect, the burden was on Darwich to “show that it was sentencing hearing, Rule 32(c)(1) of the Federal Rules of ‘clearly improbable’ that the weapon[s were] connected with Criminal Procedure provided that “[f]or each matter the crime.” Id. Darwich argues that the connection of the controverted, the court must make either a finding on the weapons to the drugs was tenuous, but fails to show that the allegation or a determination that no finding is necessary presumed connection was “clearly improbable.” Thus, the because the controverted matter will not be taken into account district court did not clearly err in applying the two-level in, or will not affect, sentencing.” Fed. R. Crim. P. 32(c)(1) firearm enhancement. (1999). As discerned by our previous cases, the purpose of this rule was “to ensure that sentencing is based on reliable 2. Leadership Enhancement facts found by the court itself after deliberation,” and thus, the district court cannot “summarily adopt the factual findings in U.S.S.G. § 3B1.1(a) provides that a defendant’s sentence the presentence report or simply declare that the facts are can be enhanced by four levels “[i]f the defendant was an supported by a preponderance of the evidence.” United States organizer or leader of a criminal activity that involved five or v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002). This court more participants or was otherwise extensive.” U.S.S.G. required “literal compliance” with this rule in order to § 3B1.1(a). Subsection (c) provides for a two-level enhance the accuracy of the sentence and the clarity of the enhancement if the criminal activity involved less than five Nos. 99-2147; 01-2044 United States v. Darwich 33 34 United States v. Darwich Nos. 99-2147; 01-2044

record. United States v. Parrott, 148 F.3d 629, 633 (6th Cir. whether it could be considered extensive. In fact, even 1998). though Darwich objected to the PSR’s role-in-the-offense enhancement, the district court neglected to address this On December 1, 2002, amendments to the Federal Rules of objection in its opinion. Instead, the district court’s opinion Criminal Procedure replaced Rule 32(c)(1) with Rule 32(i)(3). addressed solely the issue of whether 236 kilograms of Rule 32(i)(3)(B) states that “for any disputed portion of the marijuana could be attributed to Darwich. The district court presentence report or other controverted matter” during embedded any potential reasoned explanation for its sentencing, the court must “rule on the dispute or determine resolution of the disputed matter within its explanation of that a ruling is unnecessary either because the matter will not how the drug quantity was established beyond a reasonable affect sentencing, or because the court will not consider the doubt.28 At the subsequent sentencing hearing, the district matter in sentencing.” Fed. R. Crim. P. 32(i)(3) (2003). This court likewise failed to issue a ruling on this disputed matter. new rule attempts to eliminate confusion over whether courts In ordering a four-level enhancement, the district court were required to make rulings on every objection to the PSR exclusively relied on the reasoning of the probation or only those that have the potential to affect the sentence. department. However, we recently reiterated that exclusive Fed. R. Crim. P. 32(i)(3) advisory committee’s note (2002). reliance on the PSR when a matter is in dispute cannot be The new rule makes clear that controverted matters at considered a ruling. See generally United States v. Treadway, sentencing only require a ruling if the disputed matter will 328 F.3d 878, 886 (6th Cir. 2003) (noting that Rule 32(i)(3)’s affect the eventual sentence. Prior to these revisions, we predecessor, Rule 32(c)(1), in conjunction with U.S.S.G. already had interpreted the rule in a manner consistent with § 6A1.3, prohibits reliance on the PSR when factual matters Rule 32(i)(3)’s recent clarification. See, e.g., United States v. are in dispute). Even though Treadway applied Rule 32(c)(1), Hurst, 228 F.3d 751, 760 (6th Cir. 2000) (requiring a we hold that a Rule 32(i)(3) ruling, similarly, requires more defendant to “expressly call [controverted matters] to the than blind reliance on the PSR. court’s attention” before Rule 32(c)(1) would apply); Parrott, 148 F.3d at 634 (holding that failure to follow Rule 32(c)(1) Because the PSR cannot be substituted for a ruling on a is harmless error when resolution of the controverted matter disputed matter and because the district court did not issue a would not affect the defendant’s sentence). ruling on the disputed matter of whether Darwich’s illegal drug activity was extensive or involved more than five Because the matter of leadership role was disputed by Darwich in his objections to the PSR, the district court had an obligation under Rule 32(i)(3) to issue a ruling on the 28 The district co urt attributed 236 kilogram s to Darwich noting that disputed matter unless the matter would not affect sentencing its “findings in this matter are based on the testimony of several witnesses, or would not be considered in sentencing. Here, the disputed all of which demonstrate that the Defendant was a wholesaler and retailer matter — whether Darwich was an organizer or leader of this of marijuana, selling a great deal of marijuana over a long period.” J.A. at 561 (7/10 /01 D ist. Ct. Op . & O r.). The cou rt also commented that it marijuana conspiracy — absolutely would affect sentencing was “impressed by the testimony which showed that Canfield Market was because without the four-point enhancement provided in the basically a drug operation.” Id. at 560. The district court further guidelines, Darwich would have a total offense level of 25 commented o n the length of the conspiracy and the number of small and which allows for a sentence of as little as fifty-seven months. large quantity sales. Id. W e determine that these statements, without The district court never issued a specific ruling on whether more, are insufficient to constitute a ruling satisfying Rule 32(i)(3) on whether the criminal activity was extensive or involved more than five the criminal activity involved five or more individuals or people as is required for an enhancement under § 3B1.1(a). Nos. 99-2147; 01-2044 United States v. Darwich 35 36 United States v. Darwich Nos. 99-2147; 01-2044

individuals, we conclude that the district court failed to ______________________________________________ comply with Rule 32(i)(3). Accordingly, on remand the district court should issue a ruling on the disputed matter of CONCURRING IN PART, DISSENTING IN PART whether Darwich deserves an enhancement for role in the ______________________________________________ offense in accordance with Rule 32(i)(3). KENNEDY, Circuit Judge, concurring in part and III. CONCLUSION dissenting in part. Defendant raised no hearsay objection of any kind at his sentencing hearing, including no objection to Because the district court could not properly conclude that Rush’s testimony, and indeed stipulated to the admission of the evidence established fifty kilograms beyond a reasonable extensive grand jury testimony, all of it hearsay. He did not doubt, we REVERSE the district court’s determination of the raise the hearsay issue before the district court on his amount of drugs, VACATE Darwich’s sentence based both resentencing after remand following Apprendi. He did not on the insufficient drug quantity conclusion and also on the raise the issue in his appellate briefs. district court’s failure to issue a ruling on the disputed matter of whether Darwich deserved a leadership enhancement, and The majority holds that defendant did not forfeit or waive REMAND this case to the district court with instructions to the issue because in his Supplement to Sentencing proceed in accordance with this opinion and sentence Memorandum and Objections (to the presentence report) he Darwich to a prison term not exceeding sixty months. raised a question as to the reliability of Rush’s nephews’ hearsay statements. However, he raised no objection to their admissibility. There was nothing to alert the district court to the present hearsay issue. The issue was first raised by this court at oral argument. Defendant is therefore limited to plain error review. Federal Rule of Evidence 103(d). To establish plain error, a claimant must show that there is “(1) error, (2) that is plain, . . . (3) that affects substantial rights,” and (4) that “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631 (2002) (internal quotation marks omitted); Johnson v. United States, 520 U.S. 461, 466-67 (1997). The district court’s reliance on Orlando Rush’s testimony was not plain error because Rush’s testimony was not plainly hearsay. Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay if it is “a statement by a co- conspirator of a party during the course and in furtherance of the conspiracy.” Rush’s nephews bagged illegal drugs for Darwich, and thus were co-conspirators. The majority agrees that Rush was a co-conspirator since he admitted to re-selling Nos. 99-2147; 01-2044 United States v. Darwich 37 38 United States v. Darwich Nos. 99-2147; 01-2044

drugs purchased from Darwich. He also aided the conspiracy assumption, this evidence alone supports a finding of 236 by providing transportation for his nephews to Darwich’s kilograms of marijuana.1 home with knowledge that they were paid to bag drugs there. Although we have no specific finding that the nephews’ Because this evidence is more than sufficient to insulate the statements were made in furtherance of the conspiracy, it district court’s quantity calculation from possible Apprendi would not have been plain error for the district court to so error, I would not need to reach the question of whether find. A statement is made in furtherance of a conspiracy if it reliance on Agent Dodge’s testimony about the conspiracy is intended to promote the objectives of the conspiracy. and transcripts of the grand jury proceedings would have been United States v. Hamilton, 689 F.2d 1262, 1270 (6th Cir. plain error. Any hypothetical error is harmless. However, I 1982). This includes statements “made to keep a conspirator cannot see how accepting a stipulation to grand jury abreast of a co-conspirator’s activities . . . .” United States v. testimony can be plain error or even error under the Rios, 842 F.2d 868, 874 (6th Cir. 1988) (citing United States circumstances here. v. Layton, 720 F.2d 548, 557 (9th Cir. 1983)) (internal quotation marks omitted). Rush’s nephews kept Rush, a co- Defendant cannot establish that his rights are substantially conspirator, apprised of the quantity of drugs they were affected or the fairness of the proceedings significantly bagging for Darwich. We have affirmed a district court’s affected by any error here, even if one found it did occur. ruling in a similar instance in an unpublished decision, United After the remand, the defendant and the government sought States v. Brooks, 41 Fed. Appx. 718, 723 (6th Cir. 2002). In to have the district court accept a joint stipulation that the Brooks, the district court admitted the statements of a co- government would be able to prove that defendant trafficked conspirator that he and the defendant had “gone to Knoxville between 80 and 100 kilograms of marijuana. to cook some methamphetamine.” Id. We held that, because such statements could be interpreted as keeping the listener While the district judge rejected the stipulation, holding abreast of the activities of the conspirators, they were that it was his responsibility under the sentencing guidelines admissible under Rule 801(d)(2)(E). Id. Based on this case to determine the amount, and instead conducted the law, it would not have been plain error to hold that Rush’s evidentiary hearing, 2 that defendant was willing to stipulate statements were admissible non-hearsay. to that amount is persuasive that neither his rights nor the

Orlando Rush’s testimony about his nephews’ statements is alone sufficient to affirm both the 50 kilograms beyond a reasonable doubt and 100 kilograms by a preponderance of the evidence. Rush testified that his nephews told him they bagged one pound per day from “some time” in 1996 until he surrendered in 1998 – dates roughly consistent with the 104 1 week span within the conspiracy. He testified he knew that Had the defendant objected to Rush’s hearsay testimony or not the nephews worked about every night since he dropped them stipulated to Agent Dodge’s testimony or the grand jury transcripts, there off about every day. Based on the five-day-per-week is at least some indication in the record that one of the nephews could have been called as a witness. (J.A. 129)

2 The stipulation would have capped the sentence under the cap in the plea agreem ent. Nos. 99-2147; 01-2044 United States v. Darwich 39

fairness and integrity of the proceeding are substantially affected by a finding of 50 kilograms.3 For the foregoing reasons, I dissent from this portion of the court’s decision.

3 Further, based on T om Smith’s testimony, up to 79 kilograms can be attributed to Darwich based on nickel bag sa les alone. Smith testified that 90 percent of Canfield Market’s customers purchased nickel bags. His testimony established that between 65 and 70 customers came to the market during his shift, which was from 5:00 p.m. to 9:00 p.m., closing time. He further testified that the market typically opened at 11:00 a.m. Assum ing a relatively constant rate of patronage throughout the day, the Canfield Market had approximately16 customers per hour, and 160 customers per day. If 90 percent of its 160 customers per day bought one- gram nickel bags five days per week, then over the course of the conspiracy Darwich so ld 79 kilograms in nickel bags alone.