United States v. Solorio , 337 F.3d 574 ( 2003 )


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    Pursuant to Sixth Circuit Rule 206                        2    United States v.          Nos. 01-5602/5603/5666/5667
    ELECTRONIC CITATION: 
    2003 FED App. 0239P (6th Cir.)
                          Solorio et al.
    File Name: 03a0239p.06
    _________________
    UNITED STATES COURT OF APPEALS                                                                    COUNSEL
    FOR THE SIXTH CIRCUIT                                  ARGUED: Robert L. Marlow, Shelbyville, Tennessee,
    _________________                                    Michael D. Noel, Nashville, Tennessee, for Appellants. John
    A. Drennan, UNITED STATES DEPARTMENT OF
    JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
    UNITED STATES OF AMERICA , X                                            Robert L. Marlow, Shelbyville, Tennessee, Michael D. Noel,
    Plaintiff-Appellee, -                                      Nashville, Tennessee, Thomas J. Drake, Jr., Nashville,
    -                                     Tennessee, Paul J. Bruno, BRUNO, HAYMAKER &
    -   Nos. 01-5602/                     HEROUX, Nashville, Tennessee, for Appellants. John A.
    v.                    -   5603/5666/5667                    Drennan, UNITED STATES DEPARTMENT OF JUSTICE,
    >                                    Washington, D.C., Robert Anderson, ASSISTANT UNITED
    ,
    JOSE RUIZ SOLORIO                 -                                     STATES ATTORNEY, Nashville, Tennessee, for Appellee.
    (01-5602); RICKY MART IN          -
    LUNA (01-5603); DELMAS            -                                                         _________________
    DENNIS (01-5666); MARCO           -                                                             OPINION
    JUAREZ (01-5667),                 -                                                         _________________
    Defendants-Appellants. -
    -                                        KAREN NELSON MOORE, Circuit Judge. Delmas
    N                                      Dennis, Marco Juarez, Jose Ruiz Solorio, and Ricky Martin
    Appeal from the United States District Court                      Luna were all arrested for conspiring to possess with the
    for the Middle District of Tennessee at Nashville.                  intent to distribute cocaine in violation of 
    21 U.S.C. § 841
    , as
    No. 99-00120—Aleta A. Trauger, District Judge.                      well as for other various drug-related crimes. The four
    defendants were part of a vast drug enterprise that brought
    Submitted and Argued: April 29, 2003                         large quantities of cocaine and marijuana into Nashville.
    They were convicted by a jury of these crimes and given
    Decided and Filed: July 22, 2003                           sentences ranging from 210 months (Solorio) to 292 months
    (Juarez).
    Before: MOORE and ROGERS, Circuit Judges; KATZ,
    District Judge.*                                          On appeal, they together raise nine claims of error. For the
    reasons that follow, we find none of their claims of error
    persuasive, and so we AFFIRM the judgment of the district
    court.
    *
    The Honorable David A. Katz, United States District Judge for the
    Northern District of Ohio, sitting by designation.
    1
    Nos. 01-5602/5603/5666/5667                 United States v.       3    4      United States v.       Nos. 01-5602/5603/5666/5667
    Solorio et al.                   Solorio et al.
    I. BACKGROUND                                     were stored at Solorio’s ranch. McMurry and Booker gave
    the money to pay for the cocaine and marijuana to Juarez,
    A. Factual Background                                                   who gave it to Luna, who gave it to the parties owed.
    The defendants in this case were all part of a drug ring that             1. Juarez’s Role in the Conspiracy
    bought, transported, and sold sizeable amounts of marijuana
    and cocaine. The leaders of this operation (which was based               Juarez was employed directly by McMurry and Booker.
    in Nashville) were Terrell McMurry and Timothy Booker.                  They paid him a salary, roughly between four and five
    McMurry and Booker, as putative defendants, entered into                thousand dollars a month. Juarez helped McMurry and
    plea agreements with the government, and thus became the                Booker transport and unload cocaine. He also helped send
    government’s key witnesses at trial.           They testified           cash payments back to McMurry’s and Booker’s suppliers.
    extensively to the roles of the four defendants in the overall          As the operation developed, McMurry, Booker, and Rocha
    conspiracy.                                                             rented an apartment for Juarez in Chicago so that Juarez could
    deliver drugs to McMurry’s and Booker’s customers there.
    McMurry and Booker began distributing cocaine and
    marijuana in 1994. They had two main sources of drugs. The                In addition to McMurry’s and Booker’s testimony, there
    first were Omar Rocha Rodriguez (known as Omar Rocha)                   was considerable other evidence against Juarez. Juarez was
    and Adriana Rocha Espinoza (a woman who lived with                      stopped by police in Chicago on October 30, 1998. He
    Rocha). Rocha and Espinoza lived in San Diego and sent                  consented to a search, in which the FBI discovered that the
    drugs to McMurry and Booker through Chicago. The                        vehicle had been retrofitted with hidden compartments of a
    shipments from Rocha and Espinoza, which each consisted of              type that were used for transporting drugs. The FBI
    between twenty and forty kilograms of cocaine, came three               intercepted phone calls between Juarez and McMurry
    times from May 1998 to August 1999 (this being the time                 discussing Juarez’s plans to unload a shipment of drugs into
    period stated in the indictment). The second source of drugs            Hearn’s house and revealing that one of the 50-pound
    came from a source known as “Alex,” who was in Chicago.                 shipments of marijuana was short. The FBI also intercepted
    phone calls between Juarez and Booker discussing various
    At trial, Booker and McMurry explained that the                      drug-related matters. Juarez was photographed with
    conspiracy operated in the following way. When the drugs                McMurry and Booker visiting Rocha in San Diego and was
    arrived in Nashville, they were delivered by a green Tahoe              also seen with Rocha in Chicago several times.
    truck, which Luna (who was also known as “Playboy”) would
    meet. The drugs were unloaded by Luna, Juarez, McMurry,                   More evidence against Juarez was obtained in the course of
    and Quentin Hearn.1 The drugs were generally kept at the                his arrest on March 18, 1999. That morning Juarez had left
    homes of Juarez, McMurry, or Hearn. Especially large loads              the apartment he leased at 710 Saxony Drive in a white
    pickup, went to Hearn’s residence to unload the forty pounds
    of marijuana that were in the truck, and was arrested while
    1                                                                   driving away. After his arrest, the police searched his
    Quentin Hearn, M cMurry’s cousin, was another putative defendant   apartment pursuant to a valid search warrant. In the
    who accepted a deal with the government and testified against the       apartment, they found two 9-mm Glock handguns. The guns
    defendants at trial.
    Nos. 01-5602/5603/5666/5667            United States v.     5    6        United States v.           Nos. 01-5602/5603/5666/5667
    Solorio et al.                   Solorio et al.
    were located inside a pair of boots, which were on top of a      were a Mexican passport, a visa, and a border-crossing card
    small black bag. Inside the bag was a variety of drug            all with the name Omar Saenz Neda.2 The picture in the
    trafficking tools: a money counter, drug ledgers, paper          passport, however, was of Luna.
    money wrappers, and rubber bands. In the search of the
    apartment, officers found one of Luna’s pagers. They also            3. Dennis’s Role in the Conspiracy
    found drug ledgers with the name “Cepillo” next to some
    figures.                                                            Dennis was McMurry’s and Booker’s largest drug
    customer; McMurry testified that Dennis normally received
    2. Luna’s Role in the Conspiracy                               half of each arriving drug shipment. Hearn testified that he
    delivered the drugs to Dennis at his store and returned
    Luna, like Juarez, aided in the transport and delivery of      Dennis’s payment to McMurry and Booker. In one
    drugs, counted drug money, and transported McMurry and           transaction, Dennis paid McMurry $60,000 for cocaine.
    Booker’s cash payments back to the drug suppliers. Luna was
    not employed directly by McMurry and Booker. Instead, he           It was through a wiretap that the government discovered
    worked principally for Rocha and was seen with him in            that Dennis was involved with McMurry. Government agents
    Chicago several times.                                           intercepted a conversation between Dennis and McMurry.
    Though the conversation was essentially in code — Dennis
    In addition to Booker’s and McMurry’s testimony against       and McMurry deliberately used phrases and terms that only
    Luna, there was other independent evidence implicating Luna      those inside the conspiracy would understand — McMurry
    in the conspiracy. On January 29, 1999, the Nashville police     “decoded” the conversation at trial, explaining how the
    stopped Luna. They found that his vehicle, like Juarez’s, had    conversation really was about how Dennis owed $6,000 to
    been retrofitted with hidden compartments. The FBI, who          McMurry and how Dennis needed to return a number of
    was intercepting McMurry’s conversations, overheard              short-weighed kilograms of cocaine (known as “bad checks”).
    McMurry and Espinoza discussing this stop. Luna was also
    visually spotted by the government both with McMurry (in a
    parking garage) and with Rocha and Espinoza (in the Los
    Angeles Airport).
    On April 15, 1999, after Juarez had been arrested, the
    police searched Luna’s Nashville apartment pursuant to a
    valid warrant. They found transaction receipts bearing his
    name, receipts bearing Juarez’s and Espinoza’s names, and a
    document indicating that a “Solorio Ruiz Jose” (presumably
    the defendant, Jose Ruiz Solorio) had rented an automobile.           2
    In a subsequent search of Rocha’s residence, officers found a wallet
    The police also found a drug ledger, balls of elastic bands      with a Mexican driver’s license, a Mexican voting card, and a Mexican
    commonly used in drug transactions, a number of cellular         birth certificate all in the name of Omar Saenz N eda. In this search,
    telephones, and a yellow sheet of paper with “Sepillo” written   police found several pieces of paper with “Cepillo” and “Jose Ruiz”
    written on them, drug ledgers, and a personal planner with Luna’s,
    on it. Two days later, Luna was arrested. In his possession      Juarez’s, and Solorio’s names, and Solorio’s cell-phone numbe r.
    Nos. 01-5602/5603/5666/5667                      United States v.          7    8       United States v.           Nos. 01-5602/5603/5666/5667
    Solorio et al.                       Solorio et al.
    4. Solorio’s Role in the Conspiracy                                           Solorio. Solorio was asked if he was “Cepillo” and raised his
    hand and nodded.5 McMurry testified that after Solorio was
    Jose Ruiz Solorio, who was known as “Cepillo,”3 was more                      arrested, Solorio approached him in jail and told him that he
    loosely connected to these drug transactions. While Booker                      had 40 kilograms of drugs buried at his Nashville ranch that
    and McMurry knew the other three defendants intimately and                      needed to be excavated.
    testified extensively against them, they had less of a
    connection to Solorio. McMurry and Booker never talked to                       B. The Results of the Jury Trial
    or met Solorio before his arrest. McMurry did testify,
    however, that they often stored drugs at Solorio’s ranch in the                   The jury convicted the defendants on different counts of the
    Nashville area.                                                                 indictment. All were convicted on Count 7 of the indictment,
    which alleged that the defendants had conspired to possess
    The more significant ties were between Solorio and Rocha.                    with intent to distribute cocaine in the amount of 5 kilograms
    The FBI intercepted several telephone conversations between                     or more from May 31, 1998 to August 17, 1999. While
    them. In one of these essentially coded conversations,                          Juarez, Luna, and Dennis were all convicted on Count 7 in the
    Solorio spoke of getting one thousand “tires” out in a week —                   full amount of 5 kilograms or more, Solorio was only
    “tires” apparently being euphemisms for units of cocaine.                       convicted of conspiring with respect to 500 grams or more.
    After the FBI intercepted another of Solorio’s and Rocha’s
    conversations, Solorio was photographed with Rocha and                            Dennis was convicted only on Count 7. He was sentenced
    another man by the name of Moises Picos-Picos.4                                 to 240 months. Luna was convicted on Count 4 (conspiracy
    to possess with intent to distribute 100 kilograms of
    Moises Picos-Picos, who also testified for the government                    marijuana) as well as Count 7. Luna was sentenced to 235
    at trial, worked for Solorio. Solorio leased an apartment for                   months. Solorio, in addition to Count 7, was convicted on
    Picos-Picos and arranged for him to come over from Tijuana                      Count 10 (possession with intent to distribute 500 grams or
    to help Solorio. Picos-Picos undertook many drug-related                        more of cocaine) and Count 11 (possession with intent to
    tasks for Solorio, such as delivering bags of cocaine and                       distribute 100 kilograms or more of marijuana). Solorio was
    money and keeping records of his drug transactions.                             sentenced to 210 months. Juarez was convicted on Counts 2
    (possession with intent to distribute 500 grams or more of
    On August 17, 1999 (after the arrests of Juarez and Luna),                    cocaine), 3 (attempt to conduct a financial transaction
    law enforcement officers executed an arrest warrant for                         affecting interstate commerce involving the proceeds of
    unlawful activity), and 4 (conspiracy to possess with intent to
    3
    Bo th Officer Ta ylor and Agent W illiams testified that Cepillo was
    an alias for Solorio. Agent Go mez, a translator with the FBI, testified that       5
    The name “Cep illo” had been found in doc uments in Ro cha’s
    her analysis of the wiretapped conversations revealed that Cepillo was          residence along with pap ers with the name “Jo se Ruiz” (Solorio’s first
    actually a nickname for Solorio. Moreover, Solorio admitted at one point        name). “Cepillo” was listed as a client in the drug ledger found in
    that he was known as Cepillo, as discussed below. Solorio’s nam e is            Juare z’s apartment. The name “Cepillo Tires” was found in ledgers in
    often spelled “Solario” in various documents related to this case.              Luna’s apartment (“tires” again often being used as a code for units of
    4
    cocaine). A receipt bearing Solorio’s real name was also found at Luna ’s
    Picos-Picos is sometimes known as Picos-Peraza or just Peraza.          apartment.
    Nos. 01-5602/5603/5666/5667             United States v.     9    10   United States v.         Nos. 01-5602/5603/5666/5667
    Solorio et al.               Solorio et al.
    distribute 100 kilograms or more of marijuana), as well as          1. Standard of Review
    Count 7. He was sentenced to concurrent terms, the longest
    of which is 292 months.                                              “This court reviews de novo a denial of a motion for
    judgment of acquittal, but affirms the decision ‘if the
    II. ANALYSIS                                evidence, viewed in the light most favorable to the
    government, would allow a rational trier of fact to find the
    The defendants raise a total of nine issues on appeal. The     defendant guilty beyond a reasonable doubt.’” United States
    defendants allege that the district court erred in holding that   v. Harrod, 
    168 F.3d 887
    , 889-90 (6th Cir.) (citation omitted),
    the evidence was sufficient and that a new trial was not          cert. denied, 
    526 U.S. 1127
     (1999).
    needed, failed to exclude the testimony of government
    witnesses after they violated a sequestration order, improperly     2. Luna’s Insufficiency Claim
    refused to dismiss a juror who knew a government witness in
    the case, imposed sentences in violation of Apprendi, failed         Luna alleges that the evidence against him was insufficient
    properly to resolve contested issues of fact as required by       because, when he was arrested, there were no drugs or large
    Federal Rule of Criminal Procedure 32, improperly enhanced        sums of money in his possession. Nevertheless, we hold that
    a sentence for the possession of a firearm, unacceptably failed   the evidence is clearly sufficient against him. McMurry,
    to reduce a sentence for a defendant’s mitigating role,           Booker, and Hearn all testified extensively against Luna,
    improperly enhanced a sentence for a defendant’s supervisory      explaining that Luna transported and delivered drugs and paid
    role, and failed to depart downwards on a number of               off their suppliers. Luna was photographed with Rocha
    discretionary issues. As we explain below, we conclude that       several times. State police had stopped Luna in a car outfitted
    none of these contentions of error have merit.                    for transporting narcotics, and this incident became a topic of
    conversation between McMurry and Espinoza. A search of
    A. Sufficiency of the Evidence                                    Juarez’s apartment revealed Luna’s cell phone. A search of
    Luna’s apartment revealed drug ledgers, balls of elastic bands
    Luna and Solorio argue that the district court erred in         commonly used in drug transactions, and a number of cellular
    denying their Federal Rule of Criminal Procedure 29 motions       telephones. Finally, when Luna was arrested, he was found
    for acquittal. Ultimately, we conclude that the evidence          with a Mexican passport, a visa, and a border-crossing card
    against them is sufficient to uphold their convictions, and so    all with the name Omar Saenz Neda. Luna’s argument that
    we reject their claims. Solorio then makes the related            the evidence was somehow insufficient because he did not
    argument that the jury finding that he possessed with intent to   possess any drugs on his person at the time of his arrest is
    distribute 500 grams of cocaine is fundamentally inconsistent     simply unpersuasive.
    with the indictment (which alleged that he possessed with
    intent to distribute 5 kilograms of cocaine). As we consider        3. Solorio’s Insufficiency Claim
    the facts adduced at trial not to be fatally incompatible with
    the indictment, we reject this claim.                               Solorio also claims that the evidence was insufficient
    against him. Solorio argues that the evidence was not
    sufficient to support the jury verdict on Count 7 (the
    conspiracy charge) or on Counts 10 and 11 (the possession
    Nos. 01-5602/5603/5666/5667             United States v.    11    12       United States v.             Nos. 01-5602/5603/5666/5667
    Solorio et al.                   Solorio et al.
    charges). Solorio also argues that a fatal variance was created   pounds of marijuana and $210,500. In the context of this
    between the evidence adduced at trial and the terms of the        case, we find this testimony sufficient to support Solorio’s
    indictment. We reject all of these claims of error.               convictions on Counts 10 and 11.6
    a.   Sufficiency of the Evidence With Respect to                   c.     The Alleged Inconsistency Between                            the
    Count 7                                                              Indictment and the Jury Verdict
    Solorio’s first argument is that there was not sufficient         Related to Solorio’s sufficiency arguments is his argument
    evidence to convict him of the conspiracy to distribute           that the evidence adduced at trial was inconsistent with the
    cocaine charge (Count 7). While the evidence is not quite as      terms of the indictment, necessitating reversal. We conclude
    overwhelming as it was in Luna’s case, the evidence against       that this claim is without merit as well.
    Solorio is certainly sufficient. There is evidence that Solorio
    was connected to McMurry’s and Booker’s operation.                  The jury found Solorio guilty on Count 7 of conspiring to
    Because Rocha was McMurry’s and Booker’s supplier,                possess with intent to distribute 500 grams of cocaine.
    Solorio as Rocha’s agent was part of the conspiracy. In           Solorio seems to argue that this is inconsistent with the
    addition, there were far more direct ties between Solorio and     indictment, because Count 7 of the indictment alleged that
    McMurry’s and Booker’s operation. McMurry explicitly              Solorio (as well as the other defendants) conspired to possess
    testified that his and Booker’s drugs were kept at Solorio’s      with intent to distribute 5 kilograms of cocaine. We interpret
    ranch. As described earlier, searches of Rocha’s, Luna’s, and     this claim as arguing either that a variance developed between
    Juarez’s apartments all revealed evidence that Solorio was a
    part of their combined operation. There was also extensive
    testimony from Picos-Picos establishing Solorio’s
    relationship with Rocha and the various drug deals he made             6
    Solo rio makes the related argument that the district court erred in
    and authorized Picos-Picos to conduct. We hold that a             denying his Federal Rule of Criminal Procedure 33 motion for a new trial
    reasonable jury could well have found that Solorio was part       because the verdict was against the weight of the evidence. We review
    of the Count 7 conspiracy.                                        the district court’s decision on this ground for an abuse of discretion.
    United States v. Fro st, 
    125 F.3d 346
     , 382 (6th C ir. 199 7), cert. denied,
    
    525 U.S. 810
     (199 8). In evaluating a Rule 33 motion based on the weight
    b. Sufficiency of the Evidence With Respect to                of the evidence, unlike a sufficiency claim, “the trial judge can consider
    Counts 10 and 11                                           the cred ibility of the witnesses and the weight of the evidence to insure
    that there is not a miscarriage of justice. It has often been said that he/she
    Solorio also claims that there is insufficient evidence to      sits as a thirteenth juror.” Un ited States v. A shworth, 
    836 F.2d 260
    , 266
    support his conviction on Counts 10 and 11, which are             (6th Cir. 1988) (quotation omitted).
    For the reasons exp lained imme diately above , the evidence ag ainst
    charges of possession of 500 grams or more of cocaine and         Solo rio was certainly adequate, especially given the wide discretion given
    100 kilograms or more of marijuana. We hold that there is         to the district co urt judge. See 
    id.
     (“Th e cou rt of appeals, howe ver, does
    sufficient evidence to support these charges. Picos-Picos         not sit as a ‘thirteenth juror’ to judge the credibility of witnesses . . . .
    testified that Solorio arranged for Picos-Picos to deliver one    Rather, we are limited to examining the evidence produced at trial to
    kilogram of cocaine. Solorio’s drug records, as Picos-Picos       determine whether the district court’s determination that the evidence
    does not ‘prepond erate heavily against the verdict’ is a clear and m anifest
    testified, showed a single drug transaction involving 500         abuse of discretion.”) (citation omitted).
    Nos. 01-5602/5603/5666/5667                     United States v.        13     14   United States v.         Nos. 01-5602/5603/5666/5667
    Solorio et al.                    Solorio et al.
    the indictment and the facts adduced at trial or that the                      unless ‘substantial rights’ of the defendant have been
    indictment was constructively amended.7                                        affected,” while a constructive amendment is per se
    prejudicial. 
    Id.
     (citation omitted); see also United States v.
    “This court reviews de novo the determination as to                          Manning, 
    142 F.3d 336
    , 339 (6th Cir. 1998) (stating that a
    whether there has been an amendment to, or variance from, an                   substantial right of the defendant is violated by a variance
    indictment.” United States v. Smith, 
    320 F.3d 647
    , 656 (6th                    “only when a defendant proves prejudice to his ability to
    Cir.) (emphasis removed), cert. denied, 
    123 S. Ct. 1954
                            defend himself or to the overall fairness of the trial”).
    (2003). There is a difference between these two terms. “A
    variance [to the indictment] occurs when the charging terms                       Solorio can show neither a prejudicial variance nor a
    [of the indictment] are unchanged, but the evidence at trial                   constructive amendment. The facts adduced at trial were not
    proves facts materially different from those alleged in the                    materially different from those alleged in the indictment. The
    indictment. In contrast, an amendment involves a change,                       concept of variance is designed to prevent the prosecution
    whether literal or in effect, in the terms of the indictment.”                 from convicting the defendant of a different offense, not a
    United States v. Chilingirian, 
    280 F.3d 704
    , 711 (6th Cir.                     lesser variation on the charged offense. See Charles Alan
    2002) (quotations omitted). “This Circuit has held that a                      Wright, 3 Federal Practice & Procedure § 516, at 25 (2d ed.
    variance rises to the level of a constructive amendment when                   1982) (stating that “a defendant may be convicted of a lesser
    the terms of an indictment are in effect altered by the                        offense necessarily included in the offense with which he is
    presentation of evidence and jury instructions which so                        charged” and noting that the principle of variance only
    modify essential elements of the offense charged that there is                 prevents him from “be[ing] convicted of a different offense”).
    a substantial likelihood that the defendant may have been                      Solorio’s complaint here is merely that he was convicted of
    convicted of an offense other than that charged in the                         a lesser-included offense, which is perfectly appropriate under
    indictment.” Id. at 712 (quotation omitted).                                   Federal Rule of Criminal Procedure 31. See Fed. R. Crim. P.
    31(c) (stating that “[a] defendant may be found guilty of any
    Although the distinction between a variance and a                            of the following: (1) an offense necessarily included in the
    constructive amendment has been called “sketchy,” we have                      offense charged”). Solorio therefore cannot show a
    noted that the “consequences of each are significantly                         prejudicial variance, because he cannot show that the
    different.” Id. “A variance will not constitute reversible error               variance affected his ability to defend himself. He similarly
    cannot show a constructive amendment to the indictment
    because he was not “convicted of an offense other than that
    7                                                                          charged in the indictment.” Chilingirian, 
    280 F.3d at 712
    .
    The government argues that this issue was not raised in the district
    court and therefore should be reviewed for plain error. The governme nt
    is correct when it points out that Solorio never specifically made an
    We considered a case materially identical to this one in a
    argument about an improper variance in his motion for acquittal. He did,       recent unpublished opinion. United States v. Vazquez, 49
    however, state in that motion that since the jury found that Solorio did not   Fed. Appx. 550, 
    2002 WL 31367162
     (6th Cir. Oct. 18, 2002),
    conspire to distribute five kilograms, “the government failed to prove an      cert. denied, 
    123 S. Ct. 1331
     (2003). In Vazquez, “the
    essential element of Count 7 against Defendant Solorio.” J.A. at 21 5. W e     indictment charged Vazquez and his co-defendants with a
    hold that Solorio did adequately raise the variance issue, although we
    agree that this argument was awkwardly phrased both in the district court
    cocaine conspiracy that involved at least twelve kilograms of
    and on ap peal.                                                                cocaine, which would have violated 21 U.S.C.
    Nos. 01-5602/5603/5666/5667              United States v.    15    16   United States v.         Nos. 01-5602/5603/5666/5667
    Solorio et al.               Solorio et al.
    § 841(b)(1)(A).” Id. at 552 (footnote omitted). The jury,          Booker, after the court discovered that the two had conversed
    however, “specifically found that Vazquez conspired to             during a trial recess. Assuming that there was a violation of
    distribute more than five hundred grams but less than five         the relevant rule, we believe that the district court promptly
    kilograms of cocaine.” Id. at 551. Since § 841(b)(1)(A)            and effectively remedied the violation, rendering total
    requires a conspiracy of five kilograms or more, Vazquez was       exclusion of McMurry’s and Booker’s testimony unnecessary.
    convicted of a conspiracy under § 841(b)(1)(B).                    As a result, we reject the defendants’ claims of error.
    We dismissed Vazquez’s claim of a fatal variance or                1. Facts Surrounding the Sequestration Order
    constructive amendment:
    McMurry and Booker were the key witnesses for the
    Even if Vazquez can show a variance between the                  government against the four defendants. McMurry testified
    indictment and the proof at trial . . . we are not persuaded     first, testifying on Wednesday, September 20, 2000, through
    that it is substantially likely that Vazquez was convicted       Friday, September 22, 2000. Booker did not testify until
    of an offense other than the one charged in the                  Tuesday, September 26. On Saturday, September 23, the
    indictment. Vazquez was charged with a § 841(b)(1)(A)            government found out that Booker and McMurry had a
    cocaine conspiracy and convicted of the lesser-included          conversation about the case in a holding cell where they were
    offense of a § 841(b)(1)(B) cocaine conspiracy. See Fed.         both confined. The conversation took place on Thursday,
    R. Crim. P. 31(c). Because the essential elements of the         September 21, during a trial break. The government brought
    former necessarily include those of the latter, we hold          the issue before the district court, and a hearing was held on
    that the indictment was not constructively amended and           this issue on Monday, September 25. Both Booker and
    affirm Vazquez’s conviction.                                     McMurry testified.
    Id. at 552-53. This case involves an identical fact pattern.          According to both Booker and McMurry, the conversation
    The indictment charged Solorio with a conspiracy involving         was brief. Booker initiated the conversation by asking
    more than five kilograms under § 841(b)(1)(A). While the           McMurry how his testimony was going, to which McMurry
    jury did not find Solorio had conspired with respect to five       responded that the defense lawyers were “going to try to trip
    kilograms or more (which would have established a violation        [Booker] up on some dates.” J.A. at 1337 (Trial Test. of
    of § 841(b)(1)(A)), the jury did find that Solorio had             Booker). McMurry referred to one date in particular,
    conspired with respect to 500 grams or more, which made out        “sometime in October when Carlos [Brittain] got pulled
    the requirements of § 841(b)(1)(B). The jury merely                over.” J.A. at 1348. Booker responded by saying that he did
    convicted Solorio of a lesser-included offense, and as a result,   not remember any dates and that he would just admit to not
    his claims of prejudicial variance and constructive                remembering them. McMurry told Booker he was not
    amendment are meritless.                                           impressed with the attorneys involved in the case and that
    defendant Dennis should have plea bargained. Booker also
    B. Sequestration Order                                             testified that McMurry mentioned something about six VIP
    tickets and six thousand dollars, though McMurry denied that
    All four defendants raise the issue of whether the district
    court erred in failing to strike the testimony of McMurry and
    Nos. 01-5602/5603/5666/5667                       United States v.        17     18   United States v.          Nos. 01-5602/5603/5666/5667
    Solorio et al.                    Solorio et al.
    he said anything about the tickets or the money.8 Booker                         testifying and that the portion of McMurry’s testimony that
    plainly stated that nothing that McMurry had said affected his                   was subsequent to the violation should have been struck.
    testimony.
    2. Sequestration Analysis
    The district court found that there was a violation of
    Federal Rule of Evidence 615. However, the district court                          We review the district court’s decision regarding
    found that there was no evidence that the government had                         sequestration of witnesses for an abuse of discretion. United
    arranged (or even known about) the violation of Rule 615,                        States v. Gibson, 
    675 F.2d 825
    , 835 (6th Cir.), cert. denied,
    and no evidence that any of the defendants had been                              
    459 U.S. 972
     (1982).
    prejudiced by this violation. The district court took three
    steps to remedy the violation. It foreclosed the government                         Federal Rule of Evidence 615 states that “[a]t the request of
    from asking Booker (who had not yet testified) about the stop                    a party the court shall order witnesses excluded so that they
    of Carlos Brittain, the VIP tickets, or the $6,000. The district                 cannot hear the testimony of other witnesses.” Fed. R. Evid.
    court allowed the parties to explore the sequestration violation                 615. This rule codifies, to an extent, the sequestration powers
    fully in cross-examination, which they did. The district court                   of the trial judge at common law; we have stated that its
    also instructed the jury that they could consider the Rule 615                   purpose is to prevent “the influencing of a witness’ testimony
    violation in making credibility determinations. Defense                          by another witness.” United States v. Rugiero, 
    20 F.3d 1387
    ,
    counsel also repeatedly pointed out the violation in closing                     1392 (6th Cir.) (citing Gibson, 675 F.2d at 835), cert. denied,
    argument, encouraging the jury to devalue Booker’s and                           
    513 U.S. 878
     (1994). However, while the purpose of the rule
    McMurry’s testimony.                                                             is apparent; its purview is not. Circuits have split on the
    question of whether “the scope of Rule 615 extends beyond
    On appeal, all the defendants argue that the district court’s                  the courtroom to permit the court to preclude out-of-court
    remedies for the sequestration violation were insufficient,                      communication between witnesses about the case during
    claiming that Booker should have been disqualified from                          trial.” Charles Alan Wright & Victor James Gold, 29 Federal
    Practice & Procedure § 6243, at 61 (1997); compare United
    States v. Sepulveda, 
    15 F.3d 1161
    , 1176 (1st Cir. 1993)
    (stating that Rule 615 authorizes a trial court to “‘order
    8
    Governm ent agents intercepted a conversation between Dennis and           witnesses excluded’ only from the courtroom proper”)
    McM urry where the two discussed the fact that Dennis owed $6,000 to             (citation omitted), cert. denied, 
    512 U.S. 1223
     (1994), with
    McM urry and the fact that Dennis needed to return a number of “bad              United States v. Prichard, 
    781 F.2d 179
    , 183 (10th Cir. 1986)
    checks.” J.A. at 785 (Trial Test. of McMurry). McM urry exp lained in            (stating that a “sequestration order pursuant to Fed. R. Evid.
    court that the $6,000 was “drug mo ney that [Dennis] owed me from the            615 requires not only that witnesses be excluded from the
    drugs that I fronted him.” J.A. at 501 (Trial Test. of McM urry).
    Apparently, Dennis attempted to rebut McM urry’s explanation of the              courtroom, but that witnesses also refrain from discussing
    conversation by suggesting that the $6,000 was not for drugs, but was for        their testimony outside the courtroom”). This court once
    VIP tic ke ts to a c on cert. D en nis claim s th at M cM urry’s stateme nt to   suggested in dicta that the rule’s ambit extends beyond the
    Bo oker abo ut the V IP tickets and the $6 ,000 may ha ve be en M cM urry’s      courtroom. See Rugiero, 
    20 F.3d at 1394
     (“[W]e think it
    attempt to persuade Booker to testify that the $6,000 was owed for drugs         unnecessary, once the rule is invoked, that either party need
    and not VIP tickets, thereby corroborating McM urry’s story and
    undermining Dennis’s defense.
    ask the court to instruct each witness not to discuss his
    Nos. 01-5602/5603/5666/5667                     United States v.        19     20     United States v.              Nos. 01-5602/5603/5666/5667
    Solorio et al.                      Solorio et al.
    testimony with another witness yet to testify.”). This court in                Gibson, 675 F.2d at 836 (quoting Holder v. United States,
    Rugiero did not, however, resolve the issue; we assumed that                   
    150 U.S. 91
    , 912 (1893)); see also Charles Alan Wright &
    there was a violation of the rule but concluded that in any                    Victor James Gold, 29 Federal Practice & Procedure § 6246,
    event the violation was not prejudicial. Id. (“But even if we                  at 93-95 (1997) (explaining that the district judge has many
    count this as a violation . . . we find no prejudicial error in the            options when faced with a violation of Rule 615, including
    district court’s rulings.”).                                                   holding the witness in contempt, holding the counsel who is
    responsible for the violation in contempt, allowing the
    As in Rugiero, we feel no need to decide the delicate issue                  witness to be cross-examined, explaining the significance of
    of whether Rule 615 extends beyond the courtroom.                              the violation to the jury, declaring a mistrial, striking the
    Assuming that Rule 615 extends to cover this situation and                     witness’s testimony in part, and disqualifying the witness
    that it was violated by the witnesses in this case, we hold that               from testifying entirely). As Gibson notes, we only permit
    district court’s remedy to the alleged violation was                           exclusion in “particular circumstances,” such as where a
    appropriately fashioned and well within her discretion.9 It is                 “witness has remained in court with the ‘consent, connivance,
    well settled in this circuit that a “‘violation of an order                    procurement, or knowledge’ of the party seeking his
    directing that witnesses be separated does not automatically                   testimony.” Gibson, 675 F.2d at 836 (citation omitted)
    bar a witness’ testimony.’” Id. (citation omitted). Instead:                   (holding it was not an abuse of discretion for the district court
    to bar a party’s witness from testifying after the witness had
    If a witness disobeys the order of withdrawal, while he                      remained in open court with the party’s knowledge in
    may be proceeded against for contempt and his testimony                      violation of a sequestration order). Exclusion is considered
    is open to comment to the jury by reason of his conduct,                     a very severe remedy. See John W. Strong, McCormick on
    he is not thereby disqualified, and the weight of authority                  Evidence § 50, at 210 (5th ed. 1999) (“The courts are
    is that he cannot be excluded on that ground merely,                         markedly reluctant to resort to the drastic remedy of
    although the right to exclude under particular                               disqualifying the witness.”); Charles Alan Wright & Victor
    circumstances may be supported as within the sound                           James Gold, 29 Federal Practice & Procedure § 6246, at 95
    discretion of the trial court.                                               (1997) (calling it a “drastic remed[y] that impose[s]
    significant hardship on a party that loses the testimony of a
    key witness”).10 Moreover, in order for a party to receive a
    9
    new trial based on a district court’s failure to exclude
    Of course, even if Rule 6 15 o nly applies to in-court communications    testimony, we have also held that the party must show that the
    between witnesses, trial courts still would “retain[] discretion to preclude   error prejudiced its right to a fair trial. Rugiero, 20 F.3d at
    such out-of-court communications between witnesses as a function of the
    court’s general powers to manage the conduct of the trial.” Charles Alan
    W right & Victor James Gold, 29 Federal Practice & Proced ure § 6243,               10
    at 62 (1997). Such orders a re “generally thought to be a standard                    Given the rare circumstances under which this remedy is justified
    concomitant of basic sequestration fare, serving to fortify the protections    as well as the district court’s discretion not to impose it, the authors of
    offered by Rule 615,” United States v. Sepulveda, 
    15 F.3d 1161
    , 1176 (1st      Federal Practice and Procedure “have found no federal appeals court
    Cir. 199 3), cert. denied, 
    512 U.S. 1223
     (1994), and we mean to cast no        decision holding that the failure to disqualify a witness after violation of
    aspersions on their use.                                                       an exclusion order is an abuse of discretion.” Charles A lan W right &
    In the case at bar, no independent seque stration order wa s issued, so   Victor James Gold, 29 Federal Practice & Procedure § 6246, at 96 n.22
    our only concern here is the protections afforded by Rule 615.                 (1997).
    Nos. 01-5602/5603/5666/5667              United States v.    21    22     United States v.              Nos. 01-5602/5603/5666/5667
    Solorio et al.                 Solorio et al.
    1394 (holding that it was not an abuse of discretion for a         Brittain’s stop.11 Second, McMurry may have stated
    district court to permit a witness’s testimony even after the      something about VIP tickets and six thousand dollars. In
    witness had violated the sequestration order with the              response, the district court prevented the government from
    knowledge of the witness’s party because the error was not         inquiring into this subject with Booker. These limitations
    prejudicial).                                                      prevented Booker’s testimony from being tainted by Booker’s
    and McMurry’s conversation. Additionally, the district court
    We conclude that the defendants have not shown that              gave a specific instruction to the jury regarding the violation
    exclusion was necessary in this case. First, the defendants do     of the Rule, and allowed the defense counsel to raise the
    not even argue that the prosecution had any knowledge of the       violation in their cross-examinations of Booker and in their
    clandestine meeting between McMurry and Booker. Our                closing arguments. These sensible and well-tailored steps not
    decision in Gibson suggests that exclusion of a witness is         only prevented the defendants from being prejudiced, but also
    only justified when the party seeking the testimony                did not unduly interfere with the government’s case. As a
    knowingly violates the sequestration order. Both Gibson and        result of these careful measures, the defendants are now
    Rugiero involved parties that knew of their witness’s              unable to show that the district court’s failure to exclude the
    sequestration violation at the time it took place. Rugiero, in     witnesses was prejudicial. See Rugiero, 
    20 F.3d at
    1394
    fact, upheld a district court’s order not to exclude the witness   (requiring prejudice before exclusion could be ordered);
    because of a lack of prejudice, though it called the issue “a      Charles Alan Wright & Victor James Gold, 29 Federal
    close one.” 
    Id.
     Here, none of the defendants even argue that       Practice & Procedure § 6246, at 91-92 (1997) (stating that
    the prosecution knew about the violation of the sequestration      “[v]iolation of an exclusion order is prejudicial if the witness
    order at the time of its occurrence.                               who violated that order subsequently gave important
    testimony that was influenced by the testimony of other
    Even if exclusion could be an appropriate remedy in a case      witnesses”). There is no evidence that any significant aspect
    like this one — where the sequestration rule was violated          of Booker’s testimony was influenced by McMurry’s
    without the knowledge of the party seeking to use the
    testimony of the sequestered witness — the measures taken
    by the district judge eliminated any prejudice the defendants           11
    Juarez argues that even McM urry’s and Booker’s general
    could have possibly faced as a result of the violation.            discussion about dates prejudiced his defense. Juarez argues that
    McM urry lied when he stated o n the stand that there were coc aine deals
    McMurry made two statements to Booker that potentially           after May of 1998, and claims that McM urry discussed dates with Booker
    could have influenced his testimony. First, McMurry                to get him to corroborate McMurry’s lie.
    mentioned that he was quizzed about dates. Only one date in             Juare z’s claim is pure speculation. Not only is there no evidence that
    particular was mentioned and that was the date that Carlos         McM urry lied on the stand, there also is no eviden ce that McM urry and
    Booker discussed the date when the cocaine deals ceased or referred to the
    Brittain was stopped by police. In response, the district court    May 1998 d ate. McM urry told Booker that the defendants’ lawyers were
    prevented the government from asking Booker about                  going to try to trip Booker up on dates; Booker then stated that he did not
    remember any dates and that he would just admit to failing to remember
    them. Other than discussing the date of the stop of Carlos Brittain, there
    was no discussion of particular dates or eve nts that occurred o n those
    dates. Juarez’s claim that he was prejudiced by the discussion of dates is
    therefore not at all persuasive.
    Nos. 01-5602/5603/5666/5667              United States v.    23    24    United States v.              Nos. 01-5602/5603/5666/5667
    Solorio et al.                Solorio et al.
    previous testimony. We therefore dismiss this contention of          2. Legal Analysis
    error.
    “‘[A] district court’s determination on a motion for either
    C. Juror Misconduct                                                a new trial or relief from judgment because a juror failed to
    fully disclose information during voir dire is reversible only
    Luna and Solorio raise the issue of whether the district         for either an abuse of discretion . . . or a clear error of law in
    court erred in not granting a new trial based on the fact that a   the exercise of this discretion.’” Zerka v. Green, 49 F.3d
    juror had not explained during voir dire his relationship with     1181, 1184 (6th Cir. 1995) (citation omitted).
    one of the government’s witnesses. Because Luna and
    Solorio have not shown deliberate concealment or actual bias         There are two ways in which a party seeking a new trial
    on the part of the juror, their claim fails.                       based on a juror’s concealment of information can obtain a
    new trial. First, if a juror deliberately conceals material
    1. Factual Background                                            information on voir dire, the party seeking a new trial can
    obtain relief by showing that the juror could have been
    On September 22, 2000, during the fourth day of trial, juror    challenged for cause. See Zerka, 49 F.3d at 1185 (“‘We hold
    James Fox submitted a note to the judge. The note explained        that to obtain a new trial in such a situation, a party must first
    that Fox had worked with government witness Donna Webber           demonstrate that a juror failed to answer honestly a material
    at Opryland. Fox was called into court. He stated that he          question on voir dire, and then further show that a correct
    worked with Webber at Opryland from 1982 to 1989, in food          response would have provided a valid basis for a challenge
    service. Initially, the district judge believed that Fox should    for cause.’”) (quoting McDonough Power Equip., Inc. v.
    be disqualified, but the government suggested that Fox could       Greenwood, 
    464 U.S. 548
    , 555-56 (1984)) (emphases
    still be a fair juror. The court then interrogated Fox on the      removed). In such a case, “bias may [but need not] be
    nature of his relationship with Webber. Fox stated that they       inferred.” Zerka, 49 F.3d at 1186 (emphasis removed).
    were merely coworkers and not friends, never socializing with
    each other outside of work. Fox had no opinion as to                 It is possible, however, that a juror could have concealed
    Webber’s truthfulness and stated that his previous                 information in a non-deliberate fashion, through an “honest,
    relationship with her would not affect his evaluation of her       though mistaken, response.” Id. at 1186 n.7. If information
    testimony or make him more or less likely to believe the           is not deliberately concealed, bias may not be inferred.
    government’s representation of the facts.                          Instead, “the movant must show actual bias” in order to
    obtain a new trial. Id. at 1186 (emphasis removed).12
    Counsel for Juarez objected, stating that had he known
    about the relationship between Fox and Webber, he would
    have exercised his peremptories differently. Counsel for                12
    Some circuits have held that a showing of deliberate concealment
    Solorio and Luna also objected.                                    is necessary for relief under McDonough. See Fitzgerald v. Greene, 
    150 F.3d 357
     , 364 n.3 (4th Cir.) (listing cases), cert. den ied, 
    525 U.S. 956
    (1998). As Fitzgerald reports, however, we rejected that position in
    Zerka, when we held that “McDonough doe s not entirely foreclose a p arty
    from seeking a new trial on the basis of a prospective juror’s honest,
    though mistaken response.” Zerka v. Green, 49 F .3d 1 181 , 118 6 n.7 (6th
    Nos. 01-5602/5603/5666/5667                     United States v.        25     26   United States v.         Nos. 01-5602/5603/5666/5667
    Solorio et al.                    Solorio et al.
    Luna and Solorio have not shown that they are entitled to                    Court’s decision in Apprendi v. New Jersey, 
    530 U.S. 466
    relief under either of these prongs. First, there has been no                  (2000). As we conclude that their sentences were all within
    showing of deliberate concealment. We find it eminently                        the prescribed statutory maximums, however, we reject their
    plausible that James Fox only remembered having met Donna                      challenges.
    Webber when she appeared on the stand and began testifying.
    The defendants have pointed to nothing (such as one of Fox’s                     Count 7 charged Juarez, Luna, and Solorio with conspiring
    answers to a question asked in voir dire) that contradicts this                to possess with intent to distribute five kilograms or more of
    point, which is also supported by the fact that Fox went                       cocaine. The jury found Juarez and Luna guilty under Count
    directly to the judge after hearing Webber’s testimony.                        7 with a quantity of cocaine that was five kilograms or more.
    The jury found Solorio guilty under Count 7, but found that
    Second, there has been no showing that Fox was actually                     the cocaine involved was less than five kilograms, but was
    biased. Fox was repeatedly asked whether his relationship                      500 grams or more. Juarez and Luna were sentenced pursuant
    with Webber would have any effect on his perception of her                     to 
    21 U.S.C. § 841
    (b)(1)(A), which applies to convictions
    testimony. He repeatedly and unambiguously answered that                       involving quantities of cocaine of five kilograms or more and
    it would not. We find this conclusion particularly reasonable                  provides a statutory sentencing range of ten years to life in
    in light of the fact that Fox and Webber’s relationship was                    prison. Juarez received a sentence of 292 months, and Luna
    limited in scope and had ended over a decade before the trial                  received a sentence of 235 months. Solorio was sentenced
    commenced.13                                                                   pursuant to 
    21 U.S.C. § 841
    (b)(1)(B), which applies to
    convictions involving cocaine quantities of 500 grams or
    D. Apprendi Violations                                                         more and provides a statutory range of five to forty years of
    imprisonment. Solorio received a sentence of 210 months.
    Juarez, Luna, and Solorio claim that the district judge used,
    for sentencing purposes, a drug quantity not found by the                        The defendants allege that Apprendi was violated by the
    jury, thereby violating principles laid out in the Supreme                     district court when, in determining base offense levels under
    the Guidelines, it held the defendants responsible for a higher
    quantity of drugs than determined by the jury. The district
    judge determined Juarez and Luna’s base levels after finding
    Cir. 1995).                                                                    150 kilograms of cocaine. The district judge determined
    13
    Solorio’s base level after finding forty-three kilograms of
    The defendants’ argum ent that they may ha ve exe rcised their          cocaine.
    peremptory challenges against Fox if they had known about his
    connection with Webbe r is unavailing. A showing that the juror                  The defendants’ Apprendi claims have no merit. The mere
    deliberately concealed information and could have been challenged for
    cause (or, alternatively, that the juror was actually biased) must be made.    fact that the district judge computed the defendants’ sentences
    See Zerka, 49 F.3d at 1185 (“‘[I]t ill serves the important end o f finality   under the Guidelines using a different quantity of drugs than
    to wipe the slate clean to recreate the peremptory challenge proc ess          the jury found is irrelevant under Apprendi as long as the
    because counsel lacked an item of information which objectively he             resultant sentence is still below the prescribed statutory
    should have obtained from a juror on voir dire exam ination.’”) (emp hasis     maximum for the quantity of drugs actually found by the jury.
    removed) (quoting McDonough Power Equip., Inc. v. Greenwood, 
    464 U.S. 548
    , 555 (1984)).
    See United States v. Lawrence, 
    308 F.3d 623
    , 634 (6th Cir.
    Nos. 01-5602/5603/5666/5667                       United States v.        27     28     United States v.               Nos. 01-5602/5603/5666/5667
    Solorio et al.                      Solorio et al.
    2002) (“Apprendi by its terms applies only where the finding                     E. Rule 32 Violation
    ‘increases the penalty for a crime beyond the prescribed
    statutory maximum,’ and we have squarely held that                                  In conjunction with his Apprendi claim, Luna argues that
    Apprendi does not apply to the Guidelines.”) (citation                           even if he was not sentenced in violation of Apprendi, the
    omitted); United States v. Garcia, 
    252 F.3d 838
    , 843 (6th Cir.                   district court erred to failing to make drug quantity findings
    2001) (“Apprendi does not purport to apply to penalties in                       as required by former Federal Rule of Criminal Procedure
    excess of any particular range or based on any particular                        32(c)(1), now Rule 32(i)(3)(B). The rule now states that “for
    offense level under the Sentencing Guidelines.”). Because                        any disputed portion of the presentence report or other
    Juarez’s and Luna’s sentences were below the life-sentence                       controverted matter” that arises at sentencing, the court must
    ceiling of 
    21 U.S.C. § 841
    (b)(1)(A) and because the jury                         “rule on the dispute or determine that a ruling is unnecessary
    found that Juarez and Luna had both conspired to possess                         either because the matter will not affect sentencing, or
    with intent to distribute more than five kilograms as required                   because the court will not consider the matter in sentencing.”
    by 
    21 U.S.C. § 841
    (b)(1)(A), their Apprendi claims fail.                         Fed. R. Crim. P. 32(i)(3)(B).15 We explained the former
    Similarly, because Solorio’s sentence was within the statutory
    range of five to forty years under 
    21 U.S.C. § 841
    (b)(1)(B)
    and because the jury found that Solorio conspired to possess                     conduct has been proved b y a preponderance of the evidence”).
    with intent to distribute 500 grams of cocaine or more as was                         15
    necessary for a conviction under 
    21 U.S.C. § 841
    (b)(1)(B),                               The former rule, literally read, required courts to “rule on any
    his Apprendi claim also fails.14                                                 unresolved objections to the presentence report.” See Fed. R. Crim. P.
    32(c)(1) (2001) (emp hasis added).            According to the Advisory
    Committee, the text of the rule left it unclear “whether that provision
    14
    should be read literally to mean every objection that might have been
    The facts surro unding Solorio’s conviction are slightly different        made to the report or only on those objections that might in some way
    than the facts surroun ding Juarez ’s and L una’s. In Solorio’s case, the jury   actually affect the sentence.” Fed. R. Crim. P. 32 , adviso ry com mittee’s
    found that Solo rio had conspired to possess with intent to distribute 500       note (2002). The broader reading of the rule, the committee feared,
    grams or more, but did not find that Solorio had conspired with resp ect to      “might place an unreasonable burden on the court without providing any
    5 kilograms or more of cocaine. The district judge, however, determined          real benefit to the sentencing process.” 
    Id.
     To am eliorate this concern,
    Solorio’s sentence under the Guidelines using 43 kilograms, which                the rule was revised to “narrow[] the req uirement for court find ings to
    according to Solorio, contravenes the jury’s “finding” that less than five       those instances when the objection addresses a ‘controverted matter.’” 
    Id.
    kilograms were involved. This, however, does not change our Apprendi                  W e, however, had not adopted the broad view of the rule tha t the rule
    analysis, for it does not change the fact that Solorio’s sentence was within     has been amended to prevent. Even before the rule change, we ha d held
    the statutory range under 
    21 U.S.C. § 8
     41(b)(1 )(B), app licable to             that a district court’s failure to address a co ntroverted matter under Rule
    defendants that conspire to p ossess with intent to distribute 500 grams or      32(c)(1) did not warrant reversal as long as the controverted m atter did
    more of cocaine.                                                                 not affect the d efendant’s sentence. See Un ited States v. P arrott, 148 F.3d
    Any appearance of inconsistency between the district judge’s and the        629, 634 (6th Cir. 1998) (explaining that such errors must be considered
    jury’s findings is obviated when one considers the differing standards of        harmless under Fed. R. Crim. P. 52(a)). We had also held that the
    proof in the two contexts. It is entirely plausible that a district judge        defendant had a duty to controvert expressly a matter in the district court
    could find one drug quantity made out by a preponderance of the evidence         before Rule 3 2 wo uld ap ply. See U nited States v. H urst, 
    228 F.3d 751
    ,
    even though the jury found a lesser quantity proved beyond a reasonable          760 (6th Cir. 2000) (holding that because the defendant “did not exp ressly
    dou bt. See Un ited States v. W atts, 
    519 U.S. 148
     , 157 (1997 ) (holding        call [these matters] to the court’s attention during the sentencing hearing,
    “that a jury’s verdict of acquittal does not prevent the sentencing court        it can hardly be said that these matters were su fficiently ‘controverted’ to
    from considering conduct underlying the acquitted charge, so long as that        trigger the sentencing court’s fact-finding duty under Rule 32(c)(1)”).
    Nos. 01-5602/5603/5666/5667                     United States v.        29     30   United States v.          Nos. 01-5602/5603/5666/5667
    Solorio et al.                    Solorio et al.
    version of the rule as requiring that “a court may not merely                  F. Firearm Enhancement
    summarily adopt the factual findings in the presentence report
    or simply declare that the facts are supported by a                               Next we address Juarez’s claim that the district court erred
    preponderance of the evidence.” United States v. Tarwater,                     in increasing his base offense level by two levels pursuant to
    
    308 F.3d 494
    , 518 (6th Cir. 2002).                                             U.S.S.G. § 2D1.1(b)(1) for possessing a firearm.
    Luna claims that the district judge did not make a                            1. Relevant Factual Development
    determination, for sentencing purposes, of the quantity of
    drugs for which Luna was responsible. This claim is                               Early in the morning of March 18, 1999, Juarez drove away
    meritless. At Luna’s sentencing hearing, the district judge                    from his apartment, located at 710 Saxony Drive, in a white
    stated that the government was “maintaining that . . . the                     pickup truck. Inside of the pickup was forty pounds of
    conspiracy was between 200 and 400 kilograms.” J.A. at                         marijuana. Juarez helped Hearn to unload the marijuana at
    2378. The district judge determined that once the drug                         Hearn’s residence. Juarez was stopped and arrested while he
    quantity reached 150 kilograms (which it did in this case), the                was leaving. Subsequent to his arrest, the police searched
    total offense would be 38, because “[t]hat’s the highest it can                Juarez’s apartment pursuant to a valid search warrant. In the
    be.” J.A. at 2378. The district court correctly found that a                   apartment, they found two 9-mm Glock handguns. The guns
    further quantity determination was unnecessary because the                     were located at the bottom of a pair of boots, which were on
    base offense level “would be the same whether it’s 150                         top of a little black bag. Inside the bag were a variety of drug
    kilograms or 900 kilograms or whatever.” J.A. at 2378; see                     trafficking tools: a money counter, drug ledgers, paper
    also United States Sentencing Commission Guidelines                            money wrappers, and rubber bands. Boxes for the firearms
    Manual (“U.S.S.G.”) § 2D1.1(C)(1), at 112 (2001) (reporting                    were later found at Luna’s house.
    that for “150 KG or more of Cocaine” the base offense level
    is 38). The district court therefore properly resolved all                       At the time of Juarez’s arrest, his apartment was in disarray.
    material factual disputes. Luna’s contention to the contrary                   The food in the refrigerator was rotten, and the electricity was
    is meritless.16                                                                turned off. Juarez claims that he was not living in the
    apartment at the time of the arrest in March but admits that he
    and his wife had lived there the previous summer and that his
    name was on the lease.
    2. Legal Analysis
    “A district court’s finding that a defendant possessed a
    16                                                                         firearm during a drug crime is a factual finding subject to the
    W e cannot help but noting tha t Luna’s claim also fails be cause it    clearly erroneous standard of review.” United States v.
    was no t prop erly raised . As we held in the Hurst case (and as the recent
    amendment to Rule 32 was meant to insure), a criminal defendant has a          Bartholomew, 
    310 F.3d 912
    , 924 (6th Cir. 2002), cert. denied,
    duty to tell the district judge that matters are controverted. Luna never      
    123 S. Ct. 1005
     (2003). Enhancement analysis under
    raised this matter in front of the district judge. Luna’s counsel was asked,   § 2D1.1(b)(1) has two parts. First, the government has the
    “Are there any other issues in dispute, Mr. Drake, that I didn’t already       initial burden of showing “by a preponderance of the evidence
    rule on?” He answered, “No, your Honor.” J.A. at 2379.
    Nos. 01-5602/5603/5666/5667              United States v.    31    32   United States v.          Nos. 01-5602/5603/5666/5667
    Solorio et al.               Solorio et al.
    that the defendant possessed the firearm” for purposes of          (1996) (affirming the enhancement of a defendant’s sentence
    § 2D1.1(b)(1). United States v. Miggins, 
    302 F.3d 384
    , 390-        when the guns were found in a “residence to which
    91 (6th Cir. 2002), cert. denied, 
    123 S. Ct. 712
    , 909, 1772        [defendant] had full access and where drugs were found”).
    (2002-03). Possession may be actual or constructive. “To           Juarez’s argument that Luna was the one who owed the guns
    establish constructive possession, the government must show        is irrelevant. See United States v. Saikaly, 
    207 F.3d 363
    , 368
    that the defendant had ownership, dominion, or control over        (6th Cir. 2000) (“Saikaly also seems to rely on the fact that he
    the [firearm] or dominion over the premises where the              did not own the firearms. This is irrelevant. The issue is not
    [firearm] is located.” 
    Id.
     (quotations omitted). “[T]he burden     ownership, but possession of the firearms.”). The district
    [then] shifts to the defendant to demonstrate that it was          court did not clearly err in applying this enhancement.
    clearly improbable that the weapon was connected to the
    offense.” 
    Id.
     Only if the defendant can make this showing          G. Supervisory Role Increase
    does the enhancement not apply.
    We next turn to Solorio’s claim that the district court erred
    The government met its burden of showing constructive            in increasing his base offense level by three points for his
    possession. Juarez leased the apartment where the guns were        leadership role in the drug conspiracy. We conclude that the
    found and had left them in the apartment on the morning of         district court did not err in making this determination, and
    March 18, 1999, the morning he was arrested. It therefore          therefore uphold the supervisory role increase.
    falls to Juarez to prove that it was clearly improbable that the
    weapon was connected to the offense. Juarez has not shown            We note at the outset that it is unclear what standard of
    this to be the case. The firearms, two 9-mm handguns, are          review we employ with regard to a district court’s
    weapons “often used in drug trafficking.” United States v.         enhancement decision under § 3B1.1. A few years ago it was
    Jernigan, Nos. 01-2121/2304, 
    2003 WL 463483
    , at *4 (6th            clear that we reviewed a district court’s factual findings for
    Cir. Feb. 18, 2003). Moreover, the firearms were found in a        clear error and legal conclusions de novo. See, e.g., United
    pair of boots on top of a bag full of other objects related to     States v. Taylor, 
    248 F.3d 506
    , 515 (6th Cir.), cert. denied,
    drug trafficking, including a money counter, drug ledgers,         
    534 U.S. 981
     (2001). The Supreme Court’s decision in
    paper money wrappers, and rubber bands. When Juarez was            Buford v. United States, 
    532 U.S. 59
     (2001), however, has
    arrested on March 18, 1999, he had just smuggled forty             suggested that deference may be appropriate when we review
    pounds of marijuana, apparently from the apartment. The            a district court’s application of the Guidelines, especially
    district court found “evidence of drug activity in that            when it involves fact-bound determinations, issues that
    apartment both before and after the guns were brought there.”      district courts may have comparatively greater expertise in
    J.A. at 2454. Juarez has not therefore shown that it was           addressing, or situations in which there will be limited value
    clearly improbable that the weapon was connected to the            to uniform court of appeals precedent. In United States v.
    offense. See Keszthelyi, 308 F.3d at 579 (affirming the            Dupree, 
    323 F.3d 480
     (6th Cir. 2003), this court noted that
    enhancement of a defendant’s sentence when drugs were              the impact of Buford on supervisory enhancements had not
    found in the residence and firearms were found in the              been resolved, stating that “standard of review for
    defendant’s bedroom, including a shotgun found in a closet         enhancements under § 3B1.1 is now open to question.” Id. at
    containing cash from the drug transactions); United States v.
    Hill, 
    79 F.3d 1477
    , 1486 (6th Cir.), cert. denied, 
    519 U.S. 858
    Nos. 01-5602/5603/5666/5667                      United States v.        33     34    United States v.         Nos. 01-5602/5603/5666/5667
    Solorio et al.                     Solorio et al.
    494. The Dupree court apparently did not resolve this thorny                    should be considered a supervisor. As the government notes,
    question.17                                                                     there is uncontroverted evidence that Solorio recruited Moises
    Picos-Picos as an accomplice and exercised control over him.
    We do not need to resolve the Buford question here, for we                   Solorio arranged for Picos-Picos to come from Tijuana to
    would affirm the district court’s application of the                            help Solorio and leased an apartment for him. In return,
    enhancement regardless of the standard of review. To begin                      Picos-Picos worked for Solorio, delivering bags of cocaine
    the analysis, Guideline § 3B1.1(b) provides that a court                        and money, and keeping records of drug transactions for
    should increase a defendant’s base offense level by three                       Solorio. Solorio planned and directed all of Picos-Picos’s
    levels, “[i]f the defendant was a manager or supervisor (but                    drug activities. This is sufficient to establish that Solorio was
    not an organizer or leader) and the criminal activity involved                  a supervisor within the meaning of the Guideline. See
    five or more participants or was otherwise extensive.” See                      Dupree, 
    323 F.3d at 494
     (upholding the enhancement for a
    U.S.S.G. § 3B1.1(b) (2001). The government bears the                            robber who supplied the gun, provided information about the
    burden of proving that the enhancement applies. Dupree, 323                     victimized store and armored truck service, and moved
    F.3d at 491.                                                                    surveillance cameras).
    In considering whether a defendant was a manager or                              Solorio’s only argument against the enhancement is that the
    supervisor, we consider such factors as “‘the defendant’s                       “Picos-Peraza matter was separate from any dealing with
    exercise of decision-making authority, any recruitment of                       Omar Rocha and the conspirators related to Mr. Rocha.”
    accomplices, the claimed right to a larger share of the fruits of               Solorio Br. at 24. Solorio therefore argues that an
    the crime, the degree of participation in planning the offense,                 enhancement under § 3B1.1(b) was inappropriate because it
    and the degree of control the defendant exercised over                          requires a showing that the enterprise had “five or more
    others.’” Id. Under this standard, we believe that Solorio                      participants or was otherwise extensive.”             U.S.S.G.
    § 3B1.1(b). Solorio argues, in effect, that the jury’s verdict
    holding that he conspired only with respect to 500 grams of
    17                                                                          cocaine proves that he did not belong to the larger conspiracy.
    After looking closely at Dupree, we are of the opinion that the
    Dupree court did not resolve the Buford issue. The Dupree court noted
    It supposedly demonstrates that the jury believed that there
    that we had (in an unpublished opinion) suggested that Buford may mean          was a subconspiracy between himself and Picos-Picos. This
    that § 3B1.1 enhancements should be reviewed under a more deferential           conspiracy, Solorio alleges, is not “extensive” within the
    standard of review. The Dupree court did no t resolve this conflict, but        meaning of the Guideline and does not involve five people —
    concluded by stating that “[g]iven this court’s recent reference to a more      thereby preventing Solorio from receiving the enhancement.
    deferential standard of review, we uphold the enhancement based on the
    district court’s findings.” United States v. Dupree, 
    323 F.3d 480
     , 494 (6th
    Cir. 2003).
    We do not find this argument persuasive. The district court
    Although this language could be taken to read that the Buford              at sentencing explicitly found that Solorio was part of the
    deferential standard of review is now the law for § 3B 1.1 applications, we     larger conspiracy. Even if the jury had found that Solorio was
    believe that the Dupree court did not decide this issue. The court never        only part of a conspiracy between himself and Picos-Picos,
    stated that Buford either did or did not apply to this factual situation, and   the differences in the standards of proof at the guilt and
    Dupree contains no legal analysis of the issue. Under these circumstances
    we do not believe that we have taken a clear p osition on the applicability
    sentencing phases resolve any seeming inconsistency. As a
    of Buford to review of § 3 B1.1 enhance ments.                                  result, even if the jury verdict were construed as finding that
    Nos. 01-5602/5603/5666/5667              United States v.    35    36    United States v.          Nos. 01-5602/5603/5666/5667
    Solorio et al.                Solorio et al.
    Solorio did not belong to the larger conspiracy beyond a           reduction. There is no doubt that Solorio was intimately
    reasonable doubt, the district judge still could have found by     connected with the drug conspiracy. His own records indicate
    a preponderance that Solorio did belong to the larger              that he distributed extensive amounts of cocaine and
    conspiracy. See United States v. Watts, 
    519 U.S. 148
    , 157          marijuana. To the extent that Solorio did not distribute the
    (1997) (explaining “that a jury’s verdict of acquittal does not    drugs himself, he was directing his associate Picos-Picos to
    prevent the sentencing court from considering conduct              do so in his stead. Picos-Picos delivered large quantities of
    underlying the acquitted charge, so long as that conduct has       drugs for Solorio and received cash payments for him as well.
    been proved by a preponderance of the evidence”). We               The control he exerted over Picos-Picos clearly reflects that
    therefore affirm the district court’s decision to apply the        Solorio was no minor participant in this conspiracy. We can
    supervisory enhancement.                                           see no error in the district court’s denial of the mitigating-role
    reduction.
    H. Mitigating Role Reduction
    I. Downward Departure
    Solorio claims that the district court erred in denying him
    a mitigating-role reduction pursuant to U.S.S.G. § 3B1.2 for         We now turn to the defendants’ last claim of error. Juarez
    having a small role in the conspiracy. This claim is easily        and Solorio both argue that the district court erred by refusing
    resolved against Solorio.                                          to depart downward from their sentences under the
    Guidelines. Juarez argues that he should have been given a
    “Whether a defendant is entitled to a downward                   downward departure on the basis of harsh conditions of
    [adjustment] under § 3B1.2 depends heavily on factual              confinement. Solorio argues he should have been given a
    determinations, which we review only for clear error.”             downward departure based on his status as a deportable
    United States v. Campbell, 
    279 F.3d 392
    , 396 (6th Cir. 2002).      person.
    Solorio has the burden of proving, by a preponderance of the
    evidence, that he is entitled to the reduction. United States v.     We have held that “a district court’s discretionary refusal to
    Bartholomew, 
    310 F.3d 912
    , 924 (6th Cir. 2002). Under              depart downward is generally not appealable, unless the
    § 3B1.2, a defendant can receive a four-level reduction for        district court mistakenly believed it did not have legal
    being a minimal participant or a two-level reduction for being     authority to depart downward.” United States v. Pruitt, 156
    a minor participant. “A minimal participant is one who is          F.3d 638, 650 (6th Cir. 1998), cert. denied, 
    525 U.S. 1091
    ‘plainly among the least culpable of those involved in the         (1999). The defendant has the burden to show that the district
    conduct of a group,’ and a minor participant is one who ‘is        court believed it lacked authority to depart downward. See
    less culpable than most other participants, but whose role         United States v. Cook, 
    238 F.3d 786
    , 791 (6th Cir.) (stating
    could not be described as minimal.’” 
    Id.
     (quoting U.S.S.G.         that “where explicit mention is not made of the court’s power
    § 3B1.2, cmt. nn. 1, 3).                                           to depart downwards, ‘it should be assumed that the court in
    the exercise of its discretion found downward departure
    Solorio here was not less culpable than most of the other        unwarranted’”) (citation omitted), cert. denied, 
    534 U.S. 876
    participants in the conspiracy. All the reasons that supported     (2001).
    the district court’s finding that Solorio was a supervisor
    justify the denial of Solorio’s request for a mitigating-role
    Nos. 01-5602/5603/5666/5667              United States v.     37    38   United States v.       Nos. 01-5602/5603/5666/5667
    Solorio et al.                Solorio et al.
    In both Juarez’s and Solorio’s cases, the district judge         depart in this case is unreviewable. We accordingly dismiss
    stated that she did not find a departure to be authorized, but      Juarez’s and Solorio’s allegations of error.
    that even if it were, she would exercise her discretion not to
    depart. It appears that we have never squarely addressed in a                         III. CONCLUSION
    published opinion whether a district judge’s refusal to grant
    a departure is reviewable when it is clear both that the judge        For the foregoing reasons, we AFFIRM the district court’s
    believes that she has no authority to depart and that she would     decision in all respects.
    not depart even if she had the authority — although this
    phrasing seems to be a common practice in district courts.
    See United States v. Hill, No. 89-5952/5954/5957, 
    1991 WL 63621
    , at *3 (6th Cir. Apr. 23, 1991) (holding unappealable
    a refusal to depart when the judge made an apparently
    ambiguous remark indicating that he would not depart even
    if he were authorized to do so); see also United States v.
    Norfleet, No. 98-1311, 
    1999 WL 1281718
    , at *2-*3 (6th Cir.
    Dec. 28, 1999), cert. denied, 
    529 U.S. 1135
     (2000); United
    States v. Coleman, No. 98-1861, 
    2000 WL 1872015
    , at *1
    (6th Cir. Dec. 14, 2000).
    If there was any doubt about the issue, we dispel it today by
    holding the district judge’s refusal to depart here to be
    unreviewable. This accords with the practice of the federal
    circuits that have considered the question. United States v.
    DeLeon, 
    187 F.3d 60
    , 69 (1st Cir.), cert. denied, 
    528 U.S. 1030
     (1999); United States v. Williams, 
    898 F.2d 1400
    , 1403
    (9th Cir. 1990); see also Charles Alan Wright et al., 15B
    Federal Practice & Procedure § 3918.8, at 585 (2d ed. 1992)
    (“If the district court both concludes that there is no authority
    to make a downward departure and that in any event there is
    no basis for making a departure, the alternative discretionary
    refusal to depart has been held sufficient to support the
    sentence and to defeat review.”). Given the “strong
    presumption that a district court’s denial of a downward
    departure is based on an exercise of discretion,” Cook, 
    238 F.3d at 791
    , and the useless formality of a remand to a judge
    who has already stated that she would not exercise her
    discretion to depart, we conclude that the decision not to
    

Document Info

Docket Number: 01-5602, 01-5603, 01-5666 and 01-5667

Citation Numbers: 337 F.3d 574

Judges: Katz, Moore, Rogers

Filed Date: 7/22/2003

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (27)

united-states-v-david-sepulveda-united-states-of-america-v-edgar , 15 F.3d 1161 ( 1993 )

United States of America, Plaintiff-Appellee/cross-... , 280 F.3d 704 ( 2002 )

United States v. Jeffrey Williams , 898 F.2d 1400 ( 1990 )

United States v. Bobby Howard Cook , 238 F.3d 786 ( 2001 )

United States v. Carlton Victor Smith Thomas Albert Nichols ... , 320 F.3d 647 ( 2003 )

Buford v. United States , 121 S. Ct. 1276 ( 2001 )

United States v. Donald Miggins, Edward McDaniels and ... , 302 F.3d 384 ( 2002 )

United States v. Mychal Manning , 142 F.3d 336 ( 1998 )

United States v. Allen Lawrence, Jr. , 308 F.3d 623 ( 2002 )

United States v. Larry T. Tarwater , 308 F.3d 494 ( 2002 )

United States v. DeLeon , 187 F.3d 60 ( 1999 )

United States v. Neil E. Campbell Paul Carpenter Rickey D. ... , 279 F.3d 392 ( 2002 )

United States v. Richard Charles Bartholomew, Warren Gene ... , 310 F.3d 912 ( 2002 )

Apprendi v. New Jersey , 120 S. Ct. 2348 ( 2000 )

United States v. Scottie Ray Hurst , 228 F.3d 751 ( 2000 )

Holder v. United States , 14 S. Ct. 10 ( 1893 )

United States v. Bruce Everett Harrod , 168 F.3d 887 ( 1999 )

United States v. J.D. Ashworth, A/K/A James Daniel Ashworth ... , 836 F.2d 260 ( 1988 )

United States v. Carl Emmitt Prichard , 781 F.2d 179 ( 1986 )

United States v. Mansour W. Saikaly , 207 F.3d 363 ( 2000 )

View All Authorities »