                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   File Name: 09a0601n.06

                                          No. 08-1168

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                               FILED
UNITED STATES OF AMERICA,                                                  Aug 25, 2009
                                                                      LEONARD GREEN, Clerk
       Plaintiff-Appellee,

v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
JAMAL ELLEDGE,                                      EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                           /



BEFORE:         CLAY and ROGERS, Circuit Judges, and JORDAN, District Judge.*

       CLAY, Circuit Judge.        Defendant-Appellant Jamal Elledge appeals his 132-month

sentence of imprisonment after a jury found him guilty of conspiracy to distribute and

conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1)

and 846, and of attempted possession with intent to distribute marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 846. On appeal, Elledge argues that the sentencing court erred in determining

the drug quantity underlying his offense level, that the court erred in enhancing his sentence for

his supervisory role in the offense, and that his sentence is procedurally unreasonable. For the

reasons that follow, we REVERSE the district court’s judgment and REMAND for

resentencing.


       *
       The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
                                            No. 08-1168
                                          BACKGROUND

          A.     Procedural History

          In November of 2002, Defendant-Appellant Jamal Elledge (“Ellege”) was indicted for

conspiracy to distribute and possess with intent to distribute marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 846 (Count One), and for attempted possession with intent to distribute

marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count Two). His case proceeded to a

jury trial and on October 26, 2005, he was found guilty of both counts. He was initially sentenced

to concurrent terms of 262 months of imprisonment on each count, but while his direct appeal

was pending, he entered into a stipulation with the government, and this Court entered an order

dismissing the appeal and remanding the case for resentencing. A second sentencing hearing was

held on November 8, 2007, and the court sentenced Elledge to 132 months of imprisonment to

run concurrently on both counts, with credit for time served. Elledge filed a timely notice of

appeal.

          B.    Substantive Facts

          On November 10, 2002, law enforcement stopped a rental van in Phelps County,

Missouri. The driver and passenger, Eric Sander and Nigest Solomon, consented to a search of

the vehicle, and officers found what was later determined to be 297 pounds (gross weight) of

marijuana in the back of the van. Sander and Solomon agreed to cooperate with the authorities

and stated that an individual they knew as “Jay” (later identified as defendant Jamal Elledge) had

hired them to drive marijuana from Phoenix, Arizona to Detroit, Michigan. They agreed to

participate in a controlled delivery of the marijuana to “Jay” in the Detroit area.




                                                 -2-
                                        No. 08-1168
       With Solomon’s consent, law enforcement monitored and/or recorded a number of phone

conversations in which Elledge inquired as to the status of the trip, expressed frustration with

delays, pressured Solomon “keep going,” and told her he wanted her “out of Missouri.” The

parties also had conversations about arrangements for Elledge to pay Solomon and Sander $5,000

when they arrived in Detroit. After the seized marijuana was weighed in Missouri, federal

authorities flew Solomon and Sander to Detroit, along with the marijuana and the Nevada license

plate from their minivan.1      In Detroit, the marijuana was re-weighed, photographed and

videotaped. The duffle bags were then packed with sham packages and loaded into a nearly

identical minivan for the controlled delivery.

       As planned in phone conversations with Solomon, Elledge drove to a hotel parking lot,

entered the rental van, removed a key from under the mat, and attempted to drive away. Elledge

was arrested and officers seized his cell phone (later determined to be the phone used to

communicate with Solomon), an airline ticket stub, $5,139 in cash, and jewelry valued at

$29,050. Officers also found a scale capable of weighing 400 pounds in Elledge’s vehicle.

       In exchange for their cooperation, neither Solomon nor Sander were indicted for their

involvement in the offenses. At trial, Solomon testified to the aforementioned events and also

stated that she had driven a load of marijuana from Arizona to Michigan for Elledge twice in the

past, in August and October of 2002. The government presented evidence of hotel, airline, credit

card, and rental car records for those time periods to corroborate Solomon’s testimony. Sander

also testified to his involvement in the aforementioned events, explaining that he had become

        1
         Agents determined that it was important that the minivan used in Detroit appear nearly
identical to the van that was rented by Solomon because Elledge had seen the vehicle in Phoenix and
personally loaded the marijuana into it.

                                                 -3-
                                         No. 08-1168
involved at Solomon’s request and that he had never personally spoken to or met Elledge. The

government also presented evidence from law enforcement agents who weighed the marijuana

seized from the minivan in Missouri and Michigan. The agents stated that the gross weight of the

marijuana was 297 pounds (approximately 135 kilograms), that the packaging likely weighed one

to two pounds, and that it was “not at all” possible that the net weight of the marijuana was less

than 220 pounds (100 kilograms).2

       Elledge challenged the weight of the marijuana that was seized and emphasized that the

agents did not maintain notes or receipts that would corroborate the weights of the packages, that

the scales used by agents did not print out a weight ticket and were not regularly certified, that the

government’s photos only revealed a weight marking on the outside of one bundle, and that

Elledge did not have a proper opportunity to contest the government’s findings because the

marijuana was destroyed after it was weighed and videotaped. Elledge also challenged the chain

of custody of the marijuana, noting that the Missouri agent did not transport the marijuana to the

airport and that the unidentified person who transported the marijuana to the airport did not testify

at trial. The jury convicted Elledge of both counts but returned a special verdict form specifying

that the associated drug quantity was 50 to 100 pounds, as opposed to the over 100 pounds

charged in the indictment.




        2
         Mark Williams, a former detective at the Missouri Sheriff’s Department, testified that he
individually weighed each of the sixteen bundles of marijuana that were seized and that the total
weight was 297 pounds. He testified that the weight included the wrapping of the marijuana, but
that it was not possible that the marijuana weighed less than 220 pounds in total. Drug Enforcement
Agency (“DEA”) Agent Ross Roel testified that he weighed each of the 16 bundles in Michigan,
marked the weight on each package, and used a calculator to arrive at a gross weight of 297 pounds.

                                                 -4-
                                        No. 08-1168
       Elledge’s Presentence Report (“PSR”) scored an offense level of 26 based on 100 to 300

kilograms of marijuana and recommended that he be sentenced as a career offender pursuant to

U.S.S.G. § 4B1.1. Elledge contested the drug quantity underlying the offense level and the career

offender designation.   The district court found the relevant drug quantity to be 50 to 100

kilograms but agreed that Elledge was a career offender. This resulted in a Guidelines range of

262 to 327 months and the court sentenced Elledge to 262 months of imprisonment on each count

to be served concurrently.

       On direct appeal, Elledge argued that the sentencing court erred in sentencing him as a

career offender because one of his prior convictions did not qualify as a predicate offense. While

the appeal was pending, the government and Elledge entered into a stipulated agreement wherein

Elledge dismissed the appeal and this Court remanded the case for resentencing. At resentencing,

the government no longer argued that Elledge was a career offender but argued that the district

court should hold him accountable for more than 100 kilograms of marijuana, that his guidelines

range should be enhanced for his supervisory role in the offense, and that the court should depart

from the Guidelines in light of his criminal history. Elledge objected to each of these positions.

More specifically, he argued that while the court was not bound by the jury-determined range of

50 to 100 kilograms, the court should adhere to it and use the most conservative offense level

consistent with that range (level 20, corresponding to 40 to 60 kilograms of marijuana). Without

addressing that argument directly, the Court determined that Elledge’s base offense level was 24

based on a drug quantity of 80 to 100 kilograms of marijuana and stated that the two-point

supervision enhancement was a “close question” but appropriate under the facts of the case. The

court therefore assigned an offense level of 26, corresponding to a Guidelines range of 120 to 150


                                               -5-
                                        No. 08-1168
months, and sentenced Elledge to 132 months of imprisonment to run concurrently on both counts

with credit for time served. Elledge filed a timely notice of appeal and the matter is now before

this Court.

                                           DISCUSSION

                                                  I.
       Elledge first argues that the court’s unsupported drug quantity finding led to an improper

calculation of his base offense level under the Guidelines. While Elledge styles this issue as an

erroneous factual finding, his argument is essentially one of procedural error.3

       On appeal, sentences are reviewed for reasonableness under an abuse of discretion

standard. United States v. Booker, 543 U.S. 220, 260-61 (2005); United States v. Sedore, 512

F.3d 819, 822 (6th Cir. 2008). As part of the reasonableness inquiry, an appellate court must

ensure that the district court did not commit significant procedural error, such as:

       failing to calculate (or improperly calculating) the Guidelines range, treating the
       Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts, or failing to adequately


        3
         In the first issue of Elledge’s brief, he argues that “the district court clearly erred in its
unsupported finding of fact that defendant should be held accountable for 80-100 kilograms of
marijuana for purposes of determining his advisory guideline range.” Elledge Br. at 22. While he
presents the issue as one of fact, the substance of his argument challenges the court’s procedure in
addressing his argument. See Elledge Brief at 24 (stating that he repeatedly argued for a lower base
offense level and drug quantity in light of the facts of his case and relevant case law, but that “[t]he
court did not explain why it picked BOL 24 (80-100 kg) or why it rejected BOL 20 or 22 or address
Defendant’s reliance on Walton[.]”). In Elledge’s fourth assignment of error, he argues that his
sentence is procedurally unreasonable, that the “incorrect scoring of a guideline range is significant
procedural error[,]” and that “[i]f this Court determines that the district court erred in its
determination of Defendant’s guideline range, Defendant’s sentence must be vacated.” Elledge Br.
at 33-34. Because the substance of Elledge’s argument is one of procedural reasonableness, we will
address it as such. Based on above-quoted arguments and Elledge’s objections at trial, he has
sufficiently raised and preserved the issue for our review.

                                                 -6-
                                         No. 08-1168
       explain the chosen sentence-including an explanation for any deviation from the
       Guidelines range.


Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). This Court grants a presumption

of substantive reasonableness to sentences within the advisory Guidelines range. United States v.

Williams, 436 F.3d 706, 708 (6th Cir. 2006); see also Rita v. United States, 551 U.S. 338, 346

(2007) (approving of presumption).

       At trial, there was a dispute as to the quantity of drugs associated with Elledge’s conduct.

The government presented witnesses who claimed that the gross weight of the marijuana seized

by agents was 297 pounds (approximately 135 kilograms), and that the net weight, excluding an

estimated one to two pounds of packaging, was well above the charged 100 kilograms. Elledge,

however, challenged the chain of custody of the drugs, the lack of documentation supporting the

weights, and, most significantly, the government’s destruction of the drugs and packaging prior to

trial. The jury, apparently crediting some of Elledge’s arguments, returned a special verdict form

that specified that Elledge’s conduct involved 50 to 100 kilograms of marijuana, as opposed to

the “over 100 pounds” charged in the indictment.

       At resentencing, although Elledge conceded that the court was entitled to reject the jury-

determined range of 50 to 100 kilograms for the purposes of sentencing, he argued that the court

should adhere to it given the weaknesses of the government’s proofs on the matter. The court

explicitly agreed with the 50 to 100 kilogram range and expressed its dissatisfaction with the

DEA’s stated policy of destroying drugs prior to trial which, in its assessment, deprived Elledge

of his right to challenge the evidence as to chain of custody, quality, and quantity.



                                                 -7-
                                          No. 08-1168
       This did not resolve the issue, however. Elledge further argued—both in his sentencing

memorandum and at his resentencing hearing—that the 50 to 100 kilogram range corresponded to

three possible offense levels (level 20 for 40 to 60 kilograms of marijuana, level 22 for 60 to 80

kilograms, and level 24 for 80 to 100 kilograms), and that under United States v. Walton, 908

F.2d 1289, 1302 (6th Cir. 1990),4 the court should use most conservative estimate.

       After reiterating Elledge’s Walton argument at the resentencing hearing, defense counsel

stated at least three times that the judge would need to decide which offense level (20, 22, or 24)

would apply. The court—apparently misunderstanding the argument—repeatedly stated that it

chose a range of 50 to 100 kilograms. Finally, after the government joined in prompting the court

that it would need to select an offense level of “20, 22, or 24,” the court stated that “the base

offense level that I intended to pick was 24. That was the base offense level.” (Trial Tr. vol. 8 at

38.) The court did not discuss the matter further.5




        4
            In Walton, this Court stated:

                  We believe that the guidelines do not permit the District Court to
                  hold a defendant responsible for a specific quantity of drugs unless
                  the court can conclude the defendant is more likely than not actually
                  responsible for a quantity greater than or equal to the quantity for
                  which the defendant is being held responsible. [ . . . .] Thus when
                  choosing between a number of plausible estimates of drug quantity,
                  none of which is more likely than not the correct quantity, a court
                  must err on the side of caution.

908 F.2d at 1302.
        5
       The court did not ask the parties if they objected to the sentence that was imposed, and the
government does not argue that plain error review should apply under United States v. Vonner, 516
F.3d 382, 386 (6th Cir. 2008), and United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004).

                                                  -8-
                                          No. 08-1168
       On appeal, Elledge argues that the district court “simply announced it had selected a base

offense level of 24” without addressing his arguments for a lower level. We agree and hold that

the court committed procedural error by failing to address Elledge’s non-frivolous arguments for

a lower sentence. Procedural reasonableness requires, among other things, that a district court

properly calculate the Guidelines range and that it “adequately explain the chosen sentence.”

Gall, 128 S. Ct. at 597. In light of this obligation, this Court consistently has held that, “[w]hen a

defendant raises a particular[, nonfrivolous] argument in seeking a lower sentence, the record

must reflect both that the district judge considered the defendant’s argument and that the judge

explained the basis for rejecting it.’” United States v. Lalonde, 509 F.3d 750, 770 (6th Cir. 2007)

(internal quotation marks omitted) (emphasis added); see also United States v. Peters, 512 F.3d

787, 789 (6th Cir. 2008) (holding that a sentence is not procedurally reasonable if, “[w]hen the

defendant or prosecutor ‘presents nonfrivolous reasons for imposing a different sentence,’” a

sentencing judge fails to “address the ‘parties’ arguments’ and ‘explain why he has rejected those

arguments’”) (quoting Rita, 127 S. Ct. at 2468)); United States v. Jackson, 408 F.3d 301, 305 (6th

Cir. 2005) (requiring an “articulation of the reasons the district court reached the sentence

ultimately imposed.”).6 As such, when Elledge offered non-frivolous arguments in favor of a

lower offense level, the court had an obligation to articulate its reasons for the selecting the

offense level it chose.




        6
         The above-cited cases are all consistent with the Gall Court’s observation that courts may
 be required to explicitly address relevant issues expressly raised by the parties. 128 S. Ct. at 599
 (“Had the prosecutor raised the issue, specific discussion of the point might have been in order[.]”).

                                                 -9-
                                     No. 08-1168
       Here the record plainly demonstrates that the district court failed to satisfy this

requirement. Elledge repeatedly argued that an offense level of 20 should apply under the

circumstances of the case and in light of Walton, but the court offered no explanation as to why it

selected an offense level of 24. Based on the record before it, we can only speculate as to the

reasoning underlying the offense level (and the associated drug quantity) that the sentencing court

chose, and it cannot be said that the court “provide[d] a clear explanation of why it has either

accepted or rejected the parties’ arguments and thereby chose the particular sentence imposed[.]”

United States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007). The sentence imposed was therefore

procedurally unreasonable and we will remand for resentencing.

                                                II.


       In his second assignment of error, Elledge argues that the district court clearly erred in

enhancing his base offense level by two levels for his role as an “organizer, leader, manager, or

supervisor” of Nigest Solomon under U.S.S.G. § 3B1.1.

       This Court reviews a district court’s factual findings for clear error. United States v.

Walls, 546 F.3d 728, 735 (6th Cir. 2008). A decision is clearly erroneous when this Court has a

“definite and firm conviction that a mistake has been made.” United States v. Jeross, 521 F.3d

562, 569 (6th Cir. 2008). However, as to the court’s legal conclusion on whether to impose a

leadership enhancement under § 3B1.1, this circuit has mixed authority regarding whether a

reviewing court should apply a de novo standard or a more deferential standard. In United States

v. Young, this Court summarized the “unsettled” state of the law in this area as follows:

                When reviewing § 3B1.1(a) impositions in the past, ‘we reviewed
                the district court’s factual findings for clear error and its legal

                                                -10-
                                             No. 08-1168
                conclusions de novo.’” [Walls, 546 F.3d at 734] (quoting United
                States v. McDaniel, 398 F.3d 540, 551 n.10 (6th Cir. 2005)).
                “However, in 2001, ‘the Supreme Court ruled in Buford v. United
                States that, in light of the fact-bound nature of the legal decision,
                an appellate court should review deferentially, rather than de novo,
                a district court’s application of U.S.S.G. § 4B1.2.’” Id. (quoting
                McDaniel, 398 F.3d at 551 n.10). Some cases in this circuit
                suggest, without discussing Buford, that “‘[a] district court’s
                determination regarding a defendant’s role in the offense is
                reversible only if clearly erroneous.’” United States v. Jeross, 521
                F.3d 562, 579 (6th Cir. 2008) (quoting United States v. Gates, 461
                F.3d 703, 709 (6th Cir. [2006]) . . . . Other cases state that “[w]e
                have not settled the question of what standard governs review of a
                sentencing enhancement under U.S.S.G. § 3B1.1.” United States
                v. Moncivais, 492 F.3d 652, 660 (6th Cir. 2007).


553 F.3d 1035, 1052-1053 (6th Cir. 2009). Because we conclude that Elledge is not entitled to

relief under any standard of review, we need not decide whether we owe deference to the district

court’s decision to impose a leadership enhancement under § 3B1.1.

       When deciding whether a supervisory enhancement should apply, a district court should

consider:

        the exercise of decision making authority, the nature of participation in the
        commission of the offense, the recruitment of accomplices, the claimed
        right to a larger share of the fruits of the crime, the degree of participation
        in planning or organizing the offense, the nature and scope of the illegal
        activity, and the degree of control and authority exercised over others.


18 U.S.C. § 3B1.1 cmt. n.4 (2009).

       In the instant case, the district court determined that “based upon Miss Solomon’s

testimony and the constant phone calls or calling you, you calling her for directions, her calling

you for directions, your giving her directions, I think that you were a supervisor.” (Trial Tr. vol.




                                                -11-
                                           No. 08-1168
8 at 36.) The court also stated that “the evidence fairly taken reflects that Mr. Elledge was the

brains behind the operation. He conceived it. He planned it.” (Id. at 18.)

       The record supports the court’s imposition of the enhancement. Although Elledge argues

that he and Solomon were equals or “joint-venturers,” the government presented evidence that

Elledge recruited Solomon for at least two trips, that he instructed her to rent a vehicle with

Nevada license plants to avoid suspicion, that he instructed her to take a particular route through

Missouri, and that he gave her directions regarding how to rent the vehicle and what credit card to

use. In addition, there is evidence that Elledge spoke to Solomon on seven recorded calls and

dozens of other unrecorded calls in the course of the trip, and that in the recordings, Elledge

repeatedly inquired as to Solomon’s progress, reminded her not to speed, instructed her continue

driving despite her stated illness, and expressed frustration with her lack of progress. Finally,

there is evidence that Elledge intended to pay Solomon $5,000 for her services, but that the load

of marijuana could be sold in Detroit for a profit of $300,000 or more.

       This Court has upheld § 3B1.1 enhancements in similar cases. In United States v. Munoz,

we found that a supervisory role existed when the defendant “made arrangements for the courier

to deliver the drugs,” was in “repeated contact” with the informant, and “played a role in

coordinating the delivery and payment for” the drugs. 233 F.3d 410, 416 (6th Cir. 2000).

Likewise, in United States v. Gaitan-Acevedo, we found that an enhancement was appropriate

when the defendant gave directions to a courier as to when a delivery was to be made and made

arrangements for the courier when his vehicle broke down, and when a second courier possessed

the defendant’s telephone number as a contact person. 148 F.3d 577, 595-96 (6th Cir. 1998).

Because Elledge’s conduct is markedly similar to the conduct discussed in Munoz and Gaitan-


                                               -12-
                                          No. 08-1168
Acevedo, and because the evidence clearly indicates that Solomon was acting under his direction,

the district court did not err in applying an enhancement under § 3B1.1, regardless of the standard

of review that is applied.

       Elledge also challenges the application of the enhancement by arguing that the district

court violated his Sixth Amendment right to a jury verdict under Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), by engaging in judicial fact-finding to determine by a preponderance of the

evidence that he played a supervisory role in the offense. This argument lacks merit in light of

relevant Supreme Court precedent. In Booker, the Supreme Court held that while the Sixth

Amendment is violated when a sentencing judge makes factual findings that determine a

mandatory guideline range, an advisory Guidelines system would not violate the constitutional

right to trial by jury. 543 U.S. at 233. This Court has since made clear that so long as a

sentencing court does not treat the Guidelines as mandatory, it is permissible for the court to

make factual findings in the course of calculating advisory Guidelines. United States v. Kosinski,

480 F.3d 769, 774-77 (6th Cir. 2007); United States v. Gardiner, 463 F.3d 445, 461 (6th Cir.

2006). Elledge does not argue that the court viewed the Guidelines as mandatory, and our review

of the record reveals that court did not consider itself bound by the Guidelines. Consequently, the

district court’s fact-finding with respect to Elledge’s supervisory enhancement did not violate the

Sixth Amendment.

       Finally, Elledge argues that the sentence imposed by the district court was procedurally

unreasonable in light of the improper application of the § 3B1.1 supervisory enhancement.7


        7
        With respect to his claim alleging an improper § 3B1.1 enhancement, Elledge does not
argue that the court failed to articulate the reasons underlying its application of the enhancement,
and the record would not support such an argument.

                                               -13-
                                       No. 08-1168
Because the court’s application of the contested enhancement was not in error, Elledge’s

procedural reasonableness argument with respect to this issue also fails.

                                         CONCLUSION

       For the reasons stated above, we REVERSE the district court’s judgment and REMAND

for resentencing.




                                                -14-
                                      No. 08-1168
       ROGERS, J., dissenting. I respectfully dissent from the determination that reversal is

required by the failure to explain how the guideline range was arrived at. While it is important

for a district court to make clear how its guideline calculation is made, in this case the reasoning

is obvious from the record. The evidence clearly showed that the amount of marijuana exceeded

100 kg, but the court decided to defer to the jury’s determination that the amount was between 50

kg and 100 kg.      The court was not required to defer to the jury verdict, but made that

determination in its discretion. That discretionary exercise of deference to the jury did not require

the court to go further and pick the lowest guideline range within the range found by the jury, and

the district court declined to do so. Additional explanation would have been helpful, but was not

required.

       All of the evidence showed that Elledge was responsible for a drug quantity that far

surpassed the range found by the jury. Both the detective from the Missouri Sheriff’s department

and the DEA agent testified that the gross weight of the marijuana was 134.7 kg (297 lbs),

including the wrapping but not including the duffel bags. Both witnesses also testified that the

wrappings weighed only a few pounds—one set of the wrapping weighed 0.24 lbs, and if that

weight was consistent for all the packages, the sixteen wrappers together would have weighed

3.87 lbs. The district court made a determination to cap the amount for sentencing purposes at the

highest range consistent with the jury verdict, after expressing its dissatisfaction with the DEA’s

policy permitting the pre-trial destruction of the drugs. No further explanation was reasonably

required as to why the court capped the drug amount without reducing it more than

necessary—doing so was all that was necessary to achieve the court’s purpose of conforming to

the jury’s verdict, and thereby expressing dissatisfaction with the DEA policy.


                                                -15-
                                          No. 08-1168
        The district court did not need to “err on the side of caution,” under United States v.

Walton, 908 F.2d 1289, 1302 (6th Cir. 1990). That admonishment applies when the court is

“choosing between a number of plausible estimates of drug quantity, none of which is more likely

than not the correct quantity,” id., or when “the amount of drugs is uncertain,” United States v.

Long, 190 F.3d 471, 478 (6th Cir. 1999). But the district court was not uncertain about the

amount of drugs in this case. All of the available evidence suggested that Elledge was actually

responsible for more than 100 kg of marijuana. The court’s decision to find less than 100 kg of

marijuana had nothing to do with uncertainty, and had only to do with deference to the jury and

concern about DEA evidence-preservation policy.        Neither concern plausibly suggested an

amount less than 80 kg.

        I agree with the other parts of the majority opinion and I would therefore affirm the

sentence of the district court.




                                              -16-
