United States v. Solorio

RECOMMENDED FOR FULL-TEXT PUBLICATION
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
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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.
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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.
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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.
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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
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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).
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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.
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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
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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. 466relief 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. 858Nos. 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. 876participants 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