United States v. Darwich ( 2003 )

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. 2406If 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.