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

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

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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