          RECOMMENDED FOR FULL-TEXT PUBLICATION
               Pursuant to Sixth Circuit Rule 206                        2    United States v.          Nos. 01-5602/5603/5666/5667
     ELECTRONIC CITATION: 2003 FED App. 0239P (6th Cir.)                      Solorio et al.
                  File Name: 03a0239p.06

                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ARGUED: Robert L. Marlow, Shelbyville, Tennessee,
                    _________________                                    Michael D. Noel, Nashville, Tennessee, for Appellants. John
                                                                         A. Drennan, UNITED STATES DEPARTMENT OF
                                                                         JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
 UNITED STATES OF AMERICA , X                                            Robert L. Marlow, Shelbyville, Tennessee, Michael D. Noel,
              Plaintiff-Appellee, -                                      Nashville, Tennessee, Thomas J. Drake, Jr., Nashville,
                                   -                                     Tennessee, Paul J. Bruno, BRUNO, HAYMAKER &
                                   -   Nos. 01-5602/                     HEROUX, Nashville, Tennessee, for Appellants. John A.
             v.                    -   5603/5666/5667                    Drennan, UNITED STATES DEPARTMENT OF JUSTICE,
                                    >                                    Washington, D.C., Robert Anderson, ASSISTANT UNITED
                                   ,
 JOSE RUIZ SOLORIO                 -                                     STATES ATTORNEY, Nashville, Tennessee, for Appellee.
 (01-5602); RICKY MART IN          -
 LUNA (01-5603); DELMAS            -                                                         _________________
 DENNIS (01-5666); MARCO           -                                                             OPINION
 JUAREZ (01-5667),                 -                                                         _________________
        Defendants-Appellants. -
                                   -                                        KAREN NELSON MOORE, Circuit Judge. Delmas
                                  N                                      Dennis, Marco Juarez, Jose Ruiz Solorio, and Ricky Martin
       Appeal from the United States District Court                      Luna were all arrested for conspiring to possess with the
     for the Middle District of Tennessee at Nashville.                  intent to distribute cocaine in violation of 21 U.S.C. § 841, as
     No. 99-00120—Aleta A. Trauger, District Judge.                      well as for other various drug-related crimes. The four
                                                                         defendants were part of a vast drug enterprise that brought
            Submitted and Argued: April 29, 2003                         large quantities of cocaine and marijuana into Nashville.
                                                                         They were convicted by a jury of these crimes and given
              Decided and Filed: July 22, 2003                           sentences ranging from 210 months (Solorio) to 292 months
                                                                         (Juarez).
 Before: MOORE and ROGERS, Circuit Judges; KATZ,
                 District Judge.*                                          On appeal, they together raise nine claims of error. For the
                                                                         reasons that follow, we find none of their claims of error
                                                                         persuasive, and so we AFFIRM the judgment of the district
                                                                         court.
    *
     The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
Nos. 01-5602/5603/5666/5667                 United States v.       3    4      United States v.       Nos. 01-5602/5603/5666/5667
                                              Solorio et al.                   Solorio et al.

                      I. BACKGROUND                                     were stored at Solorio’s ranch. McMurry and Booker gave
                                                                        the money to pay for the cocaine and marijuana to Juarez,
A. Factual Background                                                   who gave it to Luna, who gave it to the parties owed.
  The defendants in this case were all part of a drug ring that             1. Juarez’s Role in the Conspiracy
bought, transported, and sold sizeable amounts of marijuana
and cocaine. The leaders of this operation (which was based               Juarez was employed directly by McMurry and Booker.
in Nashville) were Terrell McMurry and Timothy Booker.                  They paid him a salary, roughly between four and five
McMurry and Booker, as putative defendants, entered into                thousand dollars a month. Juarez helped McMurry and
plea agreements with the government, and thus became the                Booker transport and unload cocaine. He also helped send
government’s key witnesses at trial.           They testified           cash payments back to McMurry’s and Booker’s suppliers.
extensively to the roles of the four defendants in the overall          As the operation developed, McMurry, Booker, and Rocha
conspiracy.                                                             rented an apartment for Juarez in Chicago so that Juarez could
                                                                        deliver drugs to McMurry’s and Booker’s customers there.
   McMurry and Booker began distributing cocaine and
marijuana in 1994. They had two main sources of drugs. The                In addition to McMurry’s and Booker’s testimony, there
first were Omar Rocha Rodriguez (known as Omar Rocha)                   was considerable other evidence against Juarez. Juarez was
and Adriana Rocha Espinoza (a woman who lived with                      stopped by police in Chicago on October 30, 1998. He
Rocha). Rocha and Espinoza lived in San Diego and sent                  consented to a search, in which the FBI discovered that the
drugs to McMurry and Booker through Chicago. The                        vehicle had been retrofitted with hidden compartments of a
shipments from Rocha and Espinoza, which each consisted of              type that were used for transporting drugs. The FBI
between twenty and forty kilograms of cocaine, came three               intercepted phone calls between Juarez and McMurry
times from May 1998 to August 1999 (this being the time                 discussing Juarez’s plans to unload a shipment of drugs into
period stated in the indictment). The second source of drugs            Hearn’s house and revealing that one of the 50-pound
came from a source known as “Alex,” who was in Chicago.                 shipments of marijuana was short. The FBI also intercepted
                                                                        phone calls between Juarez and Booker discussing various
   At trial, Booker and McMurry explained that the                      drug-related matters. Juarez was photographed with
conspiracy operated in the following way. When the drugs                McMurry and Booker visiting Rocha in San Diego and was
arrived in Nashville, they were delivered by a green Tahoe              also seen with Rocha in Chicago several times.
truck, which Luna (who was also known as “Playboy”) would
meet. The drugs were unloaded by Luna, Juarez, McMurry,                   More evidence against Juarez was obtained in the course of
and Quentin Hearn.1 The drugs were generally kept at the                his arrest on March 18, 1999. That morning Juarez had left
homes of Juarez, McMurry, or Hearn. Especially large loads              the apartment he leased at 710 Saxony Drive in a white
                                                                        pickup, went to Hearn’s residence to unload the forty pounds
                                                                        of marijuana that were in the truck, and was arrested while
    1                                                                   driving away. After his arrest, the police searched his
     Quentin Hearn, M cMurry’s cousin, was another putative defendant   apartment pursuant to a valid search warrant. In the
who accepted a deal with the government and testified against the       apartment, they found two 9-mm Glock handguns. The guns
defendants at trial.
Nos. 01-5602/5603/5666/5667            United States v.     5    6        United States v.           Nos. 01-5602/5603/5666/5667
                                         Solorio et al.                   Solorio et al.

were located inside a pair of boots, which were on top of a      were a Mexican passport, a visa, and a border-crossing card
small black bag. Inside the bag was a variety of drug            all with the name Omar Saenz Neda.2 The picture in the
trafficking tools: a money counter, drug ledgers, paper          passport, however, was of Luna.
money wrappers, and rubber bands. In the search of the
apartment, officers found one of Luna’s pagers. They also            3. Dennis’s Role in the Conspiracy
found drug ledgers with the name “Cepillo” next to some
figures.                                                            Dennis was McMurry’s and Booker’s largest drug
                                                                 customer; McMurry testified that Dennis normally received
  2. Luna’s Role in the Conspiracy                               half of each arriving drug shipment. Hearn testified that he
                                                                 delivered the drugs to Dennis at his store and returned
  Luna, like Juarez, aided in the transport and delivery of      Dennis’s payment to McMurry and Booker. In one
drugs, counted drug money, and transported McMurry and           transaction, Dennis paid McMurry $60,000 for cocaine.
Booker’s cash payments back to the drug suppliers. Luna was
not employed directly by McMurry and Booker. Instead, he           It was through a wiretap that the government discovered
worked principally for Rocha and was seen with him in            that Dennis was involved with McMurry. Government agents
Chicago several times.                                           intercepted a conversation between Dennis and McMurry.
                                                                 Though the conversation was essentially in code — Dennis
   In addition to Booker’s and McMurry’s testimony against       and McMurry deliberately used phrases and terms that only
Luna, there was other independent evidence implicating Luna      those inside the conspiracy would understand — McMurry
in the conspiracy. On January 29, 1999, the Nashville police     “decoded” the conversation at trial, explaining how the
stopped Luna. They found that his vehicle, like Juarez’s, had    conversation really was about how Dennis owed $6,000 to
been retrofitted with hidden compartments. The FBI, who          McMurry and how Dennis needed to return a number of
was intercepting McMurry’s conversations, overheard              short-weighed kilograms of cocaine (known as “bad checks”).
McMurry and Espinoza discussing this stop. Luna was also
visually spotted by the government both with McMurry (in a
parking garage) and with Rocha and Espinoza (in the Los
Angeles Airport).
   On April 15, 1999, after Juarez had been arrested, the
police searched Luna’s Nashville apartment pursuant to a
valid warrant. They found transaction receipts bearing his
name, receipts bearing Juarez’s and Espinoza’s names, and a
document indicating that a “Solorio Ruiz Jose” (presumably
the defendant, Jose Ruiz Solorio) had rented an automobile.           2
                                                                       In a subsequent search of Rocha’s residence, officers found a wallet
The police also found a drug ledger, balls of elastic bands      with a Mexican driver’s license, a Mexican voting card, and a Mexican
commonly used in drug transactions, a number of cellular         birth certificate all in the name of Omar Saenz N eda. In this search,
telephones, and a yellow sheet of paper with “Sepillo” written   police found several pieces of paper with “Cepillo” and “Jose Ruiz”
                                                                 written on them, drug ledgers, and a personal planner with Luna’s,
on it. Two days later, Luna was arrested. In his possession      Juarez’s, and Solorio’s names, and Solorio’s cell-phone numbe r.
Nos. 01-5602/5603/5666/5667                      United States v.          7    8       United States v.           Nos. 01-5602/5603/5666/5667
                                                   Solorio et al.                       Solorio et al.

  4. Solorio’s Role in the Conspiracy                                           Solorio. Solorio was asked if he was “Cepillo” and raised his
                                                                                hand and nodded.5 McMurry testified that after Solorio was
  Jose Ruiz Solorio, who was known as “Cepillo,”3 was more                      arrested, Solorio approached him in jail and told him that he
loosely connected to these drug transactions. While Booker                      had 40 kilograms of drugs buried at his Nashville ranch that
and McMurry knew the other three defendants intimately and                      needed to be excavated.
testified extensively against them, they had less of a
connection to Solorio. McMurry and Booker never talked to                       B. The Results of the Jury Trial
or met Solorio before his arrest. McMurry did testify,
however, that they often stored drugs at Solorio’s ranch in the                   The jury convicted the defendants on different counts of the
Nashville area.                                                                 indictment. All were convicted on Count 7 of the indictment,
                                                                                which alleged that the defendants had conspired to possess
   The more significant ties were between Solorio and Rocha.                    with intent to distribute cocaine in the amount of 5 kilograms
The FBI intercepted several telephone conversations between                     or more from May 31, 1998 to August 17, 1999. While
them. In one of these essentially coded conversations,                          Juarez, Luna, and Dennis were all convicted on Count 7 in the
Solorio spoke of getting one thousand “tires” out in a week —                   full amount of 5 kilograms or more, Solorio was only
“tires” apparently being euphemisms for units of cocaine.                       convicted of conspiring with respect to 500 grams or more.
After the FBI intercepted another of Solorio’s and Rocha’s
conversations, Solorio was photographed with Rocha and                            Dennis was convicted only on Count 7. He was sentenced
another man by the name of Moises Picos-Picos.4                                 to 240 months. Luna was convicted on Count 4 (conspiracy
                                                                                to possess with intent to distribute 100 kilograms of
   Moises Picos-Picos, who also testified for the government                    marijuana) as well as Count 7. Luna was sentenced to 235
at trial, worked for Solorio. Solorio leased an apartment for                   months. Solorio, in addition to Count 7, was convicted on
Picos-Picos and arranged for him to come over from Tijuana                      Count 10 (possession with intent to distribute 500 grams or
to help Solorio. Picos-Picos undertook many drug-related                        more of cocaine) and Count 11 (possession with intent to
tasks for Solorio, such as delivering bags of cocaine and                       distribute 100 kilograms or more of marijuana). Solorio was
money and keeping records of his drug transactions.                             sentenced to 210 months. Juarez was convicted on Counts 2
                                                                                (possession with intent to distribute 500 grams or more of
  On August 17, 1999 (after the arrests of Juarez and Luna),                    cocaine), 3 (attempt to conduct a financial transaction
law enforcement officers executed an arrest warrant for                         affecting interstate commerce involving the proceeds of
                                                                                unlawful activity), and 4 (conspiracy to possess with intent to
    3
      Bo th Officer Ta ylor and Agent W illiams testified that Cepillo was
an alias for Solorio. Agent Go mez, a translator with the FBI, testified that       5
                                                                                      The name “Cep illo” had been found in doc uments in Ro cha’s
her analysis of the wiretapped conversations revealed that Cepillo was          residence along with pap ers with the name “Jo se Ruiz” (Solorio’s first
actually a nickname for Solorio. Moreover, Solorio admitted at one point        name). “Cepillo” was listed as a client in the drug ledger found in
that he was known as Cepillo, as discussed below. Solorio’s nam e is            Juare z’s apartment. The name “Cepillo Tires” was found in ledgers in
often spelled “Solario” in various documents related to this case.              Luna’s apartment (“tires” again often being used as a code for units of
    4
                                                                                cocaine). A receipt bearing Solorio’s real name was also found at Luna ’s
        Picos-Picos is sometimes known as Picos-Peraza or just Peraza.          apartment.
Nos. 01-5602/5603/5666/5667             United States v.     9    10   United States v.         Nos. 01-5602/5603/5666/5667
                                          Solorio et al.               Solorio et al.

distribute 100 kilograms or more of marijuana), as well as          1. Standard of Review
Count 7. He was sentenced to concurrent terms, the longest
of which is 292 months.                                              “This court reviews de novo a denial of a motion for
                                                                  judgment of acquittal, but affirms the decision ‘if the
                      II. ANALYSIS                                evidence, viewed in the light most favorable to the
                                                                  government, would allow a rational trier of fact to find the
   The defendants raise a total of nine issues on appeal. The     defendant guilty beyond a reasonable doubt.’” United States
defendants allege that the district court erred in holding that   v. Harrod, 168 F.3d 887, 889-90 (6th Cir.) (citation omitted),
the evidence was sufficient and that a new trial was not          cert. denied, 526 U.S. 1127 (1999).
needed, failed to exclude the testimony of government
witnesses after they violated a sequestration order, improperly     2. Luna’s Insufficiency Claim
refused to dismiss a juror who knew a government witness in
the case, imposed sentences in violation of Apprendi, failed         Luna alleges that the evidence against him was insufficient
properly to resolve contested issues of fact as required by       because, when he was arrested, there were no drugs or large
Federal Rule of Criminal Procedure 32, improperly enhanced        sums of money in his possession. Nevertheless, we hold that
a sentence for the possession of a firearm, unacceptably failed   the evidence is clearly sufficient against him. McMurry,
to reduce a sentence for a defendant’s mitigating role,           Booker, and Hearn all testified extensively against Luna,
improperly enhanced a sentence for a defendant’s supervisory      explaining that Luna transported and delivered drugs and paid
role, and failed to depart downwards on a number of               off their suppliers. Luna was photographed with Rocha
discretionary issues. As we explain below, we conclude that       several times. State police had stopped Luna in a car outfitted
none of these contentions of error have merit.                    for transporting narcotics, and this incident became a topic of
                                                                  conversation between McMurry and Espinoza. A search of
A. Sufficiency of the Evidence                                    Juarez’s apartment revealed Luna’s cell phone. A search of
                                                                  Luna’s apartment revealed drug ledgers, balls of elastic bands
  Luna and Solorio argue that the district court erred in         commonly used in drug transactions, and a number of cellular
denying their Federal Rule of Criminal Procedure 29 motions       telephones. Finally, when Luna was arrested, he was found
for acquittal. Ultimately, we conclude that the evidence          with a Mexican passport, a visa, and a border-crossing card
against them is sufficient to uphold their convictions, and so    all with the name Omar Saenz Neda. Luna’s argument that
we reject their claims. Solorio then makes the related            the evidence was somehow insufficient because he did not
argument that the jury finding that he possessed with intent to   possess any drugs on his person at the time of his arrest is
distribute 500 grams of cocaine is fundamentally inconsistent     simply unpersuasive.
with the indictment (which alleged that he possessed with
intent to distribute 5 kilograms of cocaine). As we consider        3. Solorio’s Insufficiency Claim
the facts adduced at trial not to be fatally incompatible with
the indictment, we reject this claim.                               Solorio also claims that the evidence was insufficient
                                                                  against him. Solorio argues that the evidence was not
                                                                  sufficient to support the jury verdict on Count 7 (the
                                                                  conspiracy charge) or on Counts 10 and 11 (the possession
Nos. 01-5602/5603/5666/5667             United States v.    11    12       United States v.             Nos. 01-5602/5603/5666/5667
                                          Solorio et al.                   Solorio et al.

charges). Solorio also argues that a fatal variance was created   pounds of marijuana and $210,500. In the context of this
between the evidence adduced at trial and the terms of the        case, we find this testimony sufficient to support Solorio’s
indictment. We reject all of these claims of error.               convictions on Counts 10 and 11.6
    a.   Sufficiency of the Evidence With Respect to                   c.     The Alleged Inconsistency Between                            the
         Count 7                                                              Indictment and the Jury Verdict
  Solorio’s first argument is that there was not sufficient         Related to Solorio’s sufficiency arguments is his argument
evidence to convict him of the conspiracy to distribute           that the evidence adduced at trial was inconsistent with the
cocaine charge (Count 7). While the evidence is not quite as      terms of the indictment, necessitating reversal. We conclude
overwhelming as it was in Luna’s case, the evidence against       that this claim is without merit as well.
Solorio is certainly sufficient. There is evidence that Solorio
was connected to McMurry’s and Booker’s operation.                  The jury found Solorio guilty on Count 7 of conspiring to
Because Rocha was McMurry’s and Booker’s supplier,                possess with intent to distribute 500 grams of cocaine.
Solorio as Rocha’s agent was part of the conspiracy. In           Solorio seems to argue that this is inconsistent with the
addition, there were far more direct ties between Solorio and     indictment, because Count 7 of the indictment alleged that
McMurry’s and Booker’s operation. McMurry explicitly              Solorio (as well as the other defendants) conspired to possess
testified that his and Booker’s drugs were kept at Solorio’s      with intent to distribute 5 kilograms of cocaine. We interpret
ranch. As described earlier, searches of Rocha’s, Luna’s, and     this claim as arguing either that a variance developed between
Juarez’s apartments all revealed evidence that Solorio was a
part of their combined operation. There was also extensive
testimony from Picos-Picos establishing Solorio’s
relationship with Rocha and the various drug deals he made             6
                                                                         Solo rio makes the related argument that the district court erred in
and authorized Picos-Picos to conduct. We hold that a             denying his Federal Rule of Criminal Procedure 33 motion for a new trial
reasonable jury could well have found that Solorio was part       because the verdict was against the weight of the evidence. We review
of the Count 7 conspiracy.                                        the district court’s decision on this ground for an abuse of discretion.
                                                                  United States v. Fro st, 125 F.3d 346 , 382 (6th C ir. 199 7), cert. denied,
                                                                  525 U.S. 810 (199 8). In evaluating a Rule 33 motion based on the weight
    b. Sufficiency of the Evidence With Respect to                of the evidence, unlike a sufficiency claim, “the trial judge can consider
       Counts 10 and 11                                           the cred ibility of the witnesses and the weight of the evidence to insure
                                                                  that there is not a miscarriage of justice. It has often been said that he/she
  Solorio also claims that there is insufficient evidence to      sits as a thirteenth juror.” Un ited States v. A shworth, 836 F.2d 260, 266
support his conviction on Counts 10 and 11, which are             (6th Cir. 1988) (quotation omitted).
                                                                       For the reasons exp lained imme diately above , the evidence ag ainst
charges of possession of 500 grams or more of cocaine and         Solo rio was certainly adequate, especially given the wide discretion given
100 kilograms or more of marijuana. We hold that there is         to the district co urt judge. See id. (“Th e cou rt of appeals, howe ver, does
sufficient evidence to support these charges. Picos-Picos         not sit as a ‘thirteenth juror’ to judge the credibility of witnesses . . . .
testified that Solorio arranged for Picos-Picos to deliver one    Rather, we are limited to examining the evidence produced at trial to
kilogram of cocaine. Solorio’s drug records, as Picos-Picos       determine whether the district court’s determination that the evidence
                                                                  does not ‘prepond erate heavily against the verdict’ is a clear and m anifest
testified, showed a single drug transaction involving 500         abuse of discretion.”) (citation omitted).
Nos. 01-5602/5603/5666/5667                     United States v.        13     14   United States v.         Nos. 01-5602/5603/5666/5667
                                                  Solorio et al.                    Solorio et al.

the indictment and the facts adduced at trial or that the                      unless ‘substantial rights’ of the defendant have been
indictment was constructively amended.7                                        affected,” while a constructive amendment is per se
                                                                               prejudicial. Id. (citation omitted); see also United States v.
  “This court reviews de novo the determination as to                          Manning, 142 F.3d 336, 339 (6th Cir. 1998) (stating that a
whether there has been an amendment to, or variance from, an                   substantial right of the defendant is violated by a variance
indictment.” United States v. Smith, 320 F.3d 647, 656 (6th                    “only when a defendant proves prejudice to his ability to
Cir.) (emphasis removed), cert. denied, 123 S. Ct. 1954                        defend himself or to the overall fairness of the trial”).
(2003). There is a difference between these two terms. “A
variance [to the indictment] occurs when the charging terms                       Solorio can show neither a prejudicial variance nor a
[of the indictment] are unchanged, but the evidence at trial                   constructive amendment. The facts adduced at trial were not
proves facts materially different from those alleged in the                    materially different from those alleged in the indictment. The
indictment. In contrast, an amendment involves a change,                       concept of variance is designed to prevent the prosecution
whether literal or in effect, in the terms of the indictment.”                 from convicting the defendant of a different offense, not a
United States v. Chilingirian, 280 F.3d 704, 711 (6th Cir.                     lesser variation on the charged offense. See Charles Alan
2002) (quotations omitted). “This Circuit has held that a                      Wright, 3 Federal Practice & Procedure § 516, at 25 (2d ed.
variance rises to the level of a constructive amendment when                   1982) (stating that “a defendant may be convicted of a lesser
the terms of an indictment are in effect altered by the                        offense necessarily included in the offense with which he is
presentation of evidence and jury instructions which so                        charged” and noting that the principle of variance only
modify essential elements of the offense charged that there is                 prevents him from “be[ing] convicted of a different offense”).
a substantial likelihood that the defendant may have been                      Solorio’s complaint here is merely that he was convicted of
convicted of an offense other than that charged in the                         a lesser-included offense, which is perfectly appropriate under
indictment.” Id. at 712 (quotation omitted).                                   Federal Rule of Criminal Procedure 31. See Fed. R. Crim. P.
                                                                               31(c) (stating that “[a] defendant may be found guilty of any
  Although the distinction between a variance and a                            of the following: (1) an offense necessarily included in the
constructive amendment has been called “sketchy,” we have                      offense charged”). Solorio therefore cannot show a
noted that the “consequences of each are significantly                         prejudicial variance, because he cannot show that the
different.” Id. “A variance will not constitute reversible error               variance affected his ability to defend himself. He similarly
                                                                               cannot show a constructive amendment to the indictment
                                                                               because he was not “convicted of an offense other than that
    7                                                                          charged in the indictment.” Chilingirian, 280 F.3d at 712.
      The government argues that this issue was not raised in the district
court and therefore should be reviewed for plain error. The governme nt
is correct when it points out that Solorio never specifically made an
                                                                                 We considered a case materially identical to this one in a
argument about an improper variance in his motion for acquittal. He did,       recent unpublished opinion. United States v. Vazquez, 49
however, state in that motion that since the jury found that Solorio did not   Fed. Appx. 550, 2002 WL 31367162 (6th Cir. Oct. 18, 2002),
conspire to distribute five kilograms, “the government failed to prove an      cert. denied, 123 S. Ct. 1331 (2003). In Vazquez, “the
essential element of Count 7 against Defendant Solorio.” J.A. at 21 5. W e     indictment charged Vazquez and his co-defendants with a
hold that Solorio did adequately raise the variance issue, although we
agree that this argument was awkwardly phrased both in the district court
                                                                               cocaine conspiracy that involved at least twelve kilograms of
and on ap peal.                                                                cocaine, which would have violated 21 U.S.C.
Nos. 01-5602/5603/5666/5667              United States v.    15    16   United States v.         Nos. 01-5602/5603/5666/5667
                                           Solorio et al.               Solorio et al.

§ 841(b)(1)(A).” Id. at 552 (footnote omitted). The jury,          Booker, after the court discovered that the two had conversed
however, “specifically found that Vazquez conspired to             during a trial recess. Assuming that there was a violation of
distribute more than five hundred grams but less than five         the relevant rule, we believe that the district court promptly
kilograms of cocaine.” Id. at 551. Since § 841(b)(1)(A)            and effectively remedied the violation, rendering total
requires a conspiracy of five kilograms or more, Vazquez was       exclusion of McMurry’s and Booker’s testimony unnecessary.
convicted of a conspiracy under § 841(b)(1)(B).                    As a result, we reject the defendants’ claims of error.
  We dismissed Vazquez’s claim of a fatal variance or                1. Facts Surrounding the Sequestration Order
constructive amendment:
                                                                      McMurry and Booker were the key witnesses for the
  Even if Vazquez can show a variance between the                  government against the four defendants. McMurry testified
  indictment and the proof at trial . . . we are not persuaded     first, testifying on Wednesday, September 20, 2000, through
  that it is substantially likely that Vazquez was convicted       Friday, September 22, 2000. Booker did not testify until
  of an offense other than the one charged in the                  Tuesday, September 26. On Saturday, September 23, the
  indictment. Vazquez was charged with a § 841(b)(1)(A)            government found out that Booker and McMurry had a
  cocaine conspiracy and convicted of the lesser-included          conversation about the case in a holding cell where they were
  offense of a § 841(b)(1)(B) cocaine conspiracy. See Fed.         both confined. The conversation took place on Thursday,
  R. Crim. P. 31(c). Because the essential elements of the         September 21, during a trial break. The government brought
  former necessarily include those of the latter, we hold          the issue before the district court, and a hearing was held on
  that the indictment was not constructively amended and           this issue on Monday, September 25. Both Booker and
  affirm Vazquez’s conviction.                                     McMurry testified.
Id. at 552-53. This case involves an identical fact pattern.          According to both Booker and McMurry, the conversation
The indictment charged Solorio with a conspiracy involving         was brief. Booker initiated the conversation by asking
more than five kilograms under § 841(b)(1)(A). While the           McMurry how his testimony was going, to which McMurry
jury did not find Solorio had conspired with respect to five       responded that the defense lawyers were “going to try to trip
kilograms or more (which would have established a violation        [Booker] up on some dates.” J.A. at 1337 (Trial Test. of
of § 841(b)(1)(A)), the jury did find that Solorio had             Booker). McMurry referred to one date in particular,
conspired with respect to 500 grams or more, which made out        “sometime in October when Carlos [Brittain] got pulled
the requirements of § 841(b)(1)(B). The jury merely                over.” J.A. at 1348. Booker responded by saying that he did
convicted Solorio of a lesser-included offense, and as a result,   not remember any dates and that he would just admit to not
his claims of prejudicial variance and constructive                remembering them. McMurry told Booker he was not
amendment are meritless.                                           impressed with the attorneys involved in the case and that
                                                                   defendant Dennis should have plea bargained. Booker also
B. Sequestration Order                                             testified that McMurry mentioned something about six VIP
                                                                   tickets and six thousand dollars, though McMurry denied that
  All four defendants raise the issue of whether the district
court erred in failing to strike the testimony of McMurry and
Nos. 01-5602/5603/5666/5667                       United States v.        17     18   United States v.          Nos. 01-5602/5603/5666/5667
                                                    Solorio et al.                    Solorio et al.

he said anything about the tickets or the money.8 Booker                         testifying and that the portion of McMurry’s testimony that
plainly stated that nothing that McMurry had said affected his                   was subsequent to the violation should have been struck.
testimony.
                                                                                   2. Sequestration Analysis
  The district court found that there was a violation of
Federal Rule of Evidence 615. However, the district court                          We review the district court’s decision regarding
found that there was no evidence that the government had                         sequestration of witnesses for an abuse of discretion. United
arranged (or even known about) the violation of Rule 615,                        States v. Gibson, 675 F.2d 825, 835 (6th Cir.), cert. denied,
and no evidence that any of the defendants had been                              459 U.S. 972 (1982).
prejudiced by this violation. The district court took three
steps to remedy the violation. It foreclosed the government                         Federal Rule of Evidence 615 states that “[a]t the request of
from asking Booker (who had not yet testified) about the stop                    a party the court shall order witnesses excluded so that they
of Carlos Brittain, the VIP tickets, or the $6,000. The district                 cannot hear the testimony of other witnesses.” Fed. R. Evid.
court allowed the parties to explore the sequestration violation                 615. This rule codifies, to an extent, the sequestration powers
fully in cross-examination, which they did. The district court                   of the trial judge at common law; we have stated that its
also instructed the jury that they could consider the Rule 615                   purpose is to prevent “the influencing of a witness’ testimony
violation in making credibility determinations. Defense                          by another witness.” United States v. Rugiero, 20 F.3d 1387,
counsel also repeatedly pointed out the violation in closing                     1392 (6th Cir.) (citing Gibson, 675 F.2d at 835), cert. denied,
argument, encouraging the jury to devalue Booker’s and                           513 U.S. 878 (1994). However, while the purpose of the rule
McMurry’s testimony.                                                             is apparent; its purview is not. Circuits have split on the
                                                                                 question of whether “the scope of Rule 615 extends beyond
  On appeal, all the defendants argue that the district court’s                  the courtroom to permit the court to preclude out-of-court
remedies for the sequestration violation were insufficient,                      communication between witnesses about the case during
claiming that Booker should have been disqualified from                          trial.” Charles Alan Wright & Victor James Gold, 29 Federal
                                                                                 Practice & Procedure § 6243, at 61 (1997); compare United
                                                                                 States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993)
                                                                                 (stating that Rule 615 authorizes a trial court to “‘order
    8
      Governm ent agents intercepted a conversation between Dennis and           witnesses excluded’ only from the courtroom proper”)
McM urry where the two discussed the fact that Dennis owed $6,000 to             (citation omitted), cert. denied, 512 U.S. 1223 (1994), with
McM urry and the fact that Dennis needed to return a number of “bad              United States v. Prichard, 781 F.2d 179, 183 (10th Cir. 1986)
checks.” J.A. at 785 (Trial Test. of McMurry). McM urry exp lained in            (stating that a “sequestration order pursuant to Fed. R. Evid.
court that the $6,000 was “drug mo ney that [Dennis] owed me from the            615 requires not only that witnesses be excluded from the
drugs that I fronted him.” J.A. at 501 (Trial Test. of McM urry).
Apparently, Dennis attempted to rebut McM urry’s explanation of the              courtroom, but that witnesses also refrain from discussing
conversation by suggesting that the $6,000 was not for drugs, but was for        their testimony outside the courtroom”). This court once
VIP tic ke ts to a c on cert. D en nis claim s th at M cM urry’s stateme nt to   suggested in dicta that the rule’s ambit extends beyond the
Bo oker abo ut the V IP tickets and the $6 ,000 may ha ve be en M cM urry’s      courtroom. See Rugiero, 20 F.3d at 1394 (“[W]e think it
attempt to persuade Booker to testify that the $6,000 was owed for drugs         unnecessary, once the rule is invoked, that either party need
and not VIP tickets, thereby corroborating McM urry’s story and
undermining Dennis’s defense.
                                                                                 ask the court to instruct each witness not to discuss his
Nos. 01-5602/5603/5666/5667                     United States v.        19     20     United States v.              Nos. 01-5602/5603/5666/5667
                                                  Solorio et al.                      Solorio et al.

testimony with another witness yet to testify.”). This court in                Gibson, 675 F.2d at 836 (quoting Holder v. United States,
Rugiero did not, however, resolve the issue; we assumed that                   150 U.S. 91, 912 (1893)); see also Charles Alan Wright &
there was a violation of the rule but concluded that in any                    Victor James Gold, 29 Federal Practice & Procedure § 6246,
event the violation was not prejudicial. Id. (“But even if we                  at 93-95 (1997) (explaining that the district judge has many
count this as a violation . . . we find no prejudicial error in the            options when faced with a violation of Rule 615, including
district court’s rulings.”).                                                   holding the witness in contempt, holding the counsel who is
                                                                               responsible for the violation in contempt, allowing the
  As in Rugiero, we feel no need to decide the delicate issue                  witness to be cross-examined, explaining the significance of
of whether Rule 615 extends beyond the courtroom.                              the violation to the jury, declaring a mistrial, striking the
Assuming that Rule 615 extends to cover this situation and                     witness’s testimony in part, and disqualifying the witness
that it was violated by the witnesses in this case, we hold that               from testifying entirely). As Gibson notes, we only permit
district court’s remedy to the alleged violation was                           exclusion in “particular circumstances,” such as where a
appropriately fashioned and well within her discretion.9 It is                 “witness has remained in court with the ‘consent, connivance,
well settled in this circuit that a “‘violation of an order                    procurement, or knowledge’ of the party seeking his
directing that witnesses be separated does not automatically                   testimony.” Gibson, 675 F.2d at 836 (citation omitted)
bar a witness’ testimony.’” Id. (citation omitted). Instead:                   (holding it was not an abuse of discretion for the district court
                                                                               to bar a party’s witness from testifying after the witness had
  If a witness disobeys the order of withdrawal, while he                      remained in open court with the party’s knowledge in
  may be proceeded against for contempt and his testimony                      violation of a sequestration order). Exclusion is considered
  is open to comment to the jury by reason of his conduct,                     a very severe remedy. See John W. Strong, McCormick on
  he is not thereby disqualified, and the weight of authority                  Evidence § 50, at 210 (5th ed. 1999) (“The courts are
  is that he cannot be excluded on that ground merely,                         markedly reluctant to resort to the drastic remedy of
  although the right to exclude under particular                               disqualifying the witness.”); Charles Alan Wright & Victor
  circumstances may be supported as within the sound                           James Gold, 29 Federal Practice & Procedure § 6246, at 95
  discretion of the trial court.                                               (1997) (calling it a “drastic remed[y] that impose[s]
                                                                               significant hardship on a party that loses the testimony of a
                                                                               key witness”).10 Moreover, in order for a party to receive a
    9
                                                                               new trial based on a district court’s failure to exclude
      Of course, even if Rule 6 15 o nly applies to in-court communications    testimony, we have also held that the party must show that the
between witnesses, trial courts still would “retain[] discretion to preclude   error prejudiced its right to a fair trial. Rugiero, 20 F.3d at
such out-of-court communications between witnesses as a function of the
court’s general powers to manage the conduct of the trial.” Charles Alan
W right & Victor James Gold, 29 Federal Practice & Proced ure § 6243,               10
at 62 (1997). Such orders a re “generally thought to be a standard                    Given the rare circumstances under which this remedy is justified
concomitant of basic sequestration fare, serving to fortify the protections    as well as the district court’s discretion not to impose it, the authors of
offered by Rule 615,” United States v. Sepulveda, 15 F.3d 1161, 1176 (1st      Federal Practice and Procedure “have found no federal appeals court
Cir. 199 3), cert. denied, 512 U.S. 1223 (1994), and we mean to cast no        decision holding that the failure to disqualify a witness after violation of
aspersions on their use.                                                       an exclusion order is an abuse of discretion.” Charles A lan W right &
     In the case at bar, no independent seque stration order wa s issued, so   Victor James Gold, 29 Federal Practice & Procedure § 6246, at 96 n.22
our only concern here is the protections afforded by Rule 615.                 (1997).
Nos. 01-5602/5603/5666/5667              United States v.    21    22     United States v.              Nos. 01-5602/5603/5666/5667
                                           Solorio et al.                 Solorio et al.

1394 (holding that it was not an abuse of discretion for a         Brittain’s stop.11 Second, McMurry may have stated
district court to permit a witness’s testimony even after the      something about VIP tickets and six thousand dollars. In
witness had violated the sequestration order with the              response, the district court prevented the government from
knowledge of the witness’s party because the error was not         inquiring into this subject with Booker. These limitations
prejudicial).                                                      prevented Booker’s testimony from being tainted by Booker’s
                                                                   and McMurry’s conversation. Additionally, the district court
  We conclude that the defendants have not shown that              gave a specific instruction to the jury regarding the violation
exclusion was necessary in this case. First, the defendants do     of the Rule, and allowed the defense counsel to raise the
not even argue that the prosecution had any knowledge of the       violation in their cross-examinations of Booker and in their
clandestine meeting between McMurry and Booker. Our                closing arguments. These sensible and well-tailored steps not
decision in Gibson suggests that exclusion of a witness is         only prevented the defendants from being prejudiced, but also
only justified when the party seeking the testimony                did not unduly interfere with the government’s case. As a
knowingly violates the sequestration order. Both Gibson and        result of these careful measures, the defendants are now
Rugiero involved parties that knew of their witness’s              unable to show that the district court’s failure to exclude the
sequestration violation at the time it took place. Rugiero, in     witnesses was prejudicial. See Rugiero, 20 F.3d at 1394
fact, upheld a district court’s order not to exclude the witness   (requiring prejudice before exclusion could be ordered);
because of a lack of prejudice, though it called the issue “a      Charles Alan Wright & Victor James Gold, 29 Federal
close one.” Id. Here, none of the defendants even argue that       Practice & Procedure § 6246, at 91-92 (1997) (stating that
the prosecution knew about the violation of the sequestration      “[v]iolation of an exclusion order is prejudicial if the witness
order at the time of its occurrence.                               who violated that order subsequently gave important
                                                                   testimony that was influenced by the testimony of other
   Even if exclusion could be an appropriate remedy in a case      witnesses”). There is no evidence that any significant aspect
like this one — where the sequestration rule was violated          of Booker’s testimony was influenced by McMurry’s
without the knowledge of the party seeking to use the
testimony of the sequestered witness — the measures taken
by the district judge eliminated any prejudice the defendants           11
                                                                          Juarez argues that even McM urry’s and Booker’s general
could have possibly faced as a result of the violation.            discussion about dates prejudiced his defense. Juarez argues that
                                                                   McM urry lied when he stated o n the stand that there were coc aine deals
  McMurry made two statements to Booker that potentially           after May of 1998, and claims that McM urry discussed dates with Booker
could have influenced his testimony. First, McMurry                to get him to corroborate McMurry’s lie.
mentioned that he was quizzed about dates. Only one date in             Juare z’s claim is pure speculation. Not only is there no evidence that
particular was mentioned and that was the date that Carlos         McM urry lied on the stand, there also is no eviden ce that McM urry and
                                                                   Booker discussed the date when the cocaine deals ceased or referred to the
Brittain was stopped by police. In response, the district court    May 1998 d ate. McM urry told Booker that the defendants’ lawyers were
prevented the government from asking Booker about                  going to try to trip Booker up on dates; Booker then stated that he did not
                                                                   remember any dates and that he would just admit to failing to remember
                                                                   them. Other than discussing the date of the stop of Carlos Brittain, there
                                                                   was no discussion of particular dates or eve nts that occurred o n those
                                                                   dates. Juarez’s claim that he was prejudiced by the discussion of dates is
                                                                   therefore not at all persuasive.
Nos. 01-5602/5603/5666/5667              United States v.    23    24    United States v.              Nos. 01-5602/5603/5666/5667
                                           Solorio et al.                Solorio et al.

previous testimony. We therefore dismiss this contention of          2. Legal Analysis
error.
                                                                     “‘[A] district court’s determination on a motion for either
C. Juror Misconduct                                                a new trial or relief from judgment because a juror failed to
                                                                   fully disclose information during voir dire is reversible only
  Luna and Solorio raise the issue of whether the district         for either an abuse of discretion . . . or a clear error of law in
court erred in not granting a new trial based on the fact that a   the exercise of this discretion.’” Zerka v. Green, 49 F.3d
juror had not explained during voir dire his relationship with     1181, 1184 (6th Cir. 1995) (citation omitted).
one of the government’s witnesses. Because Luna and
Solorio have not shown deliberate concealment or actual bias         There are two ways in which a party seeking a new trial
on the part of the juror, their claim fails.                       based on a juror’s concealment of information can obtain a
                                                                   new trial. First, if a juror deliberately conceals material
  1. Factual Background                                            information on voir dire, the party seeking a new trial can
                                                                   obtain relief by showing that the juror could have been
   On September 22, 2000, during the fourth day of trial, juror    challenged for cause. See Zerka, 49 F.3d at 1185 (“‘We hold
James Fox submitted a note to the judge. The note explained        that to obtain a new trial in such a situation, a party must first
that Fox had worked with government witness Donna Webber           demonstrate that a juror failed to answer honestly a material
at Opryland. Fox was called into court. He stated that he          question on voir dire, and then further show that a correct
worked with Webber at Opryland from 1982 to 1989, in food          response would have provided a valid basis for a challenge
service. Initially, the district judge believed that Fox should    for cause.’”) (quoting McDonough Power Equip., Inc. v.
be disqualified, but the government suggested that Fox could       Greenwood, 464 U.S. 548, 555-56 (1984)) (emphases
still be a fair juror. The court then interrogated Fox on the      removed). In such a case, “bias may [but need not] be
nature of his relationship with Webber. Fox stated that they       inferred.” Zerka, 49 F.3d at 1186 (emphasis removed).
were merely coworkers and not friends, never socializing with
each other outside of work. Fox had no opinion as to                 It is possible, however, that a juror could have concealed
Webber’s truthfulness and stated that his previous                 information in a non-deliberate fashion, through an “honest,
relationship with her would not affect his evaluation of her       though mistaken, response.” Id. at 1186 n.7. If information
testimony or make him more or less likely to believe the           is not deliberately concealed, bias may not be inferred.
government’s representation of the facts.                          Instead, “the movant must show actual bias” in order to
                                                                   obtain a new trial. Id. at 1186 (emphasis removed).12
  Counsel for Juarez objected, stating that had he known
about the relationship between Fox and Webber, he would
have exercised his peremptories differently. Counsel for                12
                                                                          Some circuits have held that a showing of deliberate concealment
Solorio and Luna also objected.                                    is necessary for relief under McDonough. See Fitzgerald v. Greene, 150
                                                                   F.3d 357 , 364 n.3 (4th Cir.) (listing cases), cert. den ied, 525 U.S. 956
                                                                   (1998). As Fitzgerald reports, however, we rejected that position in
                                                                   Zerka, when we held that “McDonough doe s not entirely foreclose a p arty
                                                                   from seeking a new trial on the basis of a prospective juror’s honest,
                                                                   though mistaken response.” Zerka v. Green, 49 F .3d 1 181 , 118 6 n.7 (6th
Nos. 01-5602/5603/5666/5667                     United States v.        25     26   United States v.         Nos. 01-5602/5603/5666/5667
                                                  Solorio et al.                    Solorio et al.

  Luna and Solorio have not shown that they are entitled to                    Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
relief under either of these prongs. First, there has been no                  (2000). As we conclude that their sentences were all within
showing of deliberate concealment. We find it eminently                        the prescribed statutory maximums, however, we reject their
plausible that James Fox only remembered having met Donna                      challenges.
Webber when she appeared on the stand and began testifying.
The defendants have pointed to nothing (such as one of Fox’s                     Count 7 charged Juarez, Luna, and Solorio with conspiring
answers to a question asked in voir dire) that contradicts this                to possess with intent to distribute five kilograms or more of
point, which is also supported by the fact that Fox went                       cocaine. The jury found Juarez and Luna guilty under Count
directly to the judge after hearing Webber’s testimony.                        7 with a quantity of cocaine that was five kilograms or more.
                                                                               The jury found Solorio guilty under Count 7, but found that
   Second, there has been no showing that Fox was actually                     the cocaine involved was less than five kilograms, but was
biased. Fox was repeatedly asked whether his relationship                      500 grams or more. Juarez and Luna were sentenced pursuant
with Webber would have any effect on his perception of her                     to 21 U.S.C. § 841(b)(1)(A), which applies to convictions
testimony. He repeatedly and unambiguously answered that                       involving quantities of cocaine of five kilograms or more and
it would not. We find this conclusion particularly reasonable                  provides a statutory sentencing range of ten years to life in
in light of the fact that Fox and Webber’s relationship was                    prison. Juarez received a sentence of 292 months, and Luna
limited in scope and had ended over a decade before the trial                  received a sentence of 235 months. Solorio was sentenced
commenced.13                                                                   pursuant to 21 U.S.C. § 841(b)(1)(B), which applies to
                                                                               convictions involving cocaine quantities of 500 grams or
D. Apprendi Violations                                                         more and provides a statutory range of five to forty years of
                                                                               imprisonment. Solorio received a sentence of 210 months.
  Juarez, Luna, and Solorio claim that the district judge used,
for sentencing purposes, a drug quantity not found by the                        The defendants allege that Apprendi was violated by the
jury, thereby violating principles laid out in the Supreme                     district court when, in determining base offense levels under
                                                                               the Guidelines, it held the defendants responsible for a higher
                                                                               quantity of drugs than determined by the jury. The district
                                                                               judge determined Juarez and Luna’s base levels after finding
Cir. 1995).                                                                    150 kilograms of cocaine. The district judge determined
    13
                                                                               Solorio’s base level after finding forty-three kilograms of
       The defendants’ argum ent that they may ha ve exe rcised their          cocaine.
peremptory challenges against Fox if they had known about his
connection with Webbe r is unavailing. A showing that the juror                  The defendants’ Apprendi claims have no merit. The mere
deliberately concealed information and could have been challenged for
cause (or, alternatively, that the juror was actually biased) must be made.    fact that the district judge computed the defendants’ sentences
See Zerka, 49 F.3d at 1185 (“‘[I]t ill serves the important end o f finality   under the Guidelines using a different quantity of drugs than
to wipe the slate clean to recreate the peremptory challenge proc ess          the jury found is irrelevant under Apprendi as long as the
because counsel lacked an item of information which objectively he             resultant sentence is still below the prescribed statutory
should have obtained from a juror on voir dire exam ination.’”) (emp hasis     maximum for the quantity of drugs actually found by the jury.
removed) (quoting McDonough Power Equip., Inc. v. Greenwood, 464
U.S. 548, 555 (1984)).
                                                                               See United States v. Lawrence, 308 F.3d 623, 634 (6th Cir.
Nos. 01-5602/5603/5666/5667                       United States v.        27     28     United States v.               Nos. 01-5602/5603/5666/5667
                                                    Solorio et al.                      Solorio et al.

2002) (“Apprendi by its terms applies only where the finding                     E. Rule 32 Violation
‘increases the penalty for a crime beyond the prescribed
statutory maximum,’ and we have squarely held that                                  In conjunction with his Apprendi claim, Luna argues that
Apprendi does not apply to the Guidelines.”) (citation                           even if he was not sentenced in violation of Apprendi, the
omitted); United States v. Garcia, 252 F.3d 838, 843 (6th Cir.                   district court erred to failing to make drug quantity findings
2001) (“Apprendi does not purport to apply to penalties in                       as required by former Federal Rule of Criminal Procedure
excess of any particular range or based on any particular                        32(c)(1), now Rule 32(i)(3)(B). The rule now states that “for
offense level under the Sentencing Guidelines.”). Because                        any disputed portion of the presentence report or other
Juarez’s and Luna’s sentences were below the life-sentence                       controverted matter” that arises at sentencing, the court must
ceiling of 21 U.S.C. § 841(b)(1)(A) and because the jury                         “rule on the dispute or determine that a ruling is unnecessary
found that Juarez and Luna had both conspired to possess                         either because the matter will not affect sentencing, or
with intent to distribute more than five kilograms as required                   because the court will not consider the matter in sentencing.”
by 21 U.S.C. § 841(b)(1)(A), their Apprendi claims fail.                         Fed. R. Crim. P. 32(i)(3)(B).15 We explained the former
Similarly, because Solorio’s sentence was within the statutory
range of five to forty years under 21 U.S.C. § 841(b)(1)(B)
and because the jury found that Solorio conspired to possess                     conduct has been proved b y a preponderance of the evidence”).
with intent to distribute 500 grams of cocaine or more as was                         15
necessary for a conviction under 21 U.S.C. § 841(b)(1)(B),                               The former rule, literally read, required courts to “rule on any
his Apprendi claim also fails.14                                                 unresolved objections to the presentence report.” See Fed. R. Crim. P.
                                                                                 32(c)(1) (2001) (emp hasis added).            According to the Advisory
                                                                                 Committee, the text of the rule left it unclear “whether that provision
    14
                                                                                 should be read literally to mean every objection that might have been
       The facts surro unding Solorio’s conviction are slightly different        made to the report or only on those objections that might in some way
than the facts surroun ding Juarez ’s and L una’s. In Solorio’s case, the jury   actually affect the sentence.” Fed. R. Crim. P. 32 , adviso ry com mittee’s
found that Solo rio had conspired to possess with intent to distribute 500       note (2002). The broader reading of the rule, the committee feared,
grams or more, but did not find that Solorio had conspired with resp ect to      “might place an unreasonable burden on the court without providing any
5 kilograms or more of cocaine. The district judge, however, determined          real benefit to the sentencing process.” Id. To am eliorate this concern,
Solorio’s sentence under the Guidelines using 43 kilograms, which                the rule was revised to “narrow[] the req uirement for court find ings to
according to Solorio, contravenes the jury’s “finding” that less than five       those instances when the objection addresses a ‘controverted matter.’” Id.
kilograms were involved. This, however, does not change our Apprendi                  W e, however, had not adopted the broad view of the rule tha t the rule
analysis, for it does not change the fact that Solorio’s sentence was within     has been amended to prevent. Even before the rule change, we ha d held
the statutory range under 21 U.S.C. § 8 41(b)(1 )(B), app licable to             that a district court’s failure to address a co ntroverted matter under Rule
defendants that conspire to p ossess with intent to distribute 500 grams or      32(c)(1) did not warrant reversal as long as the controverted m atter did
more of cocaine.                                                                 not affect the d efendant’s sentence. See Un ited States v. P arrott, 148 F.3d
     Any appearance of inconsistency between the district judge’s and the        629, 634 (6th Cir. 1998) (explaining that such errors must be considered
jury’s findings is obviated when one considers the differing standards of        harmless under Fed. R. Crim. P. 52(a)). We had also held that the
proof in the two contexts. It is entirely plausible that a district judge        defendant had a duty to controvert expressly a matter in the district court
could find one drug quantity made out by a preponderance of the evidence         before Rule 3 2 wo uld ap ply. See U nited States v. H urst, 228 F.3d 751,
even though the jury found a lesser quantity proved beyond a reasonable          760 (6th Cir. 2000) (holding that because the defendant “did not exp ressly
dou bt. See Un ited States v. W atts, 519 U.S. 148 , 157 (1997 ) (holding        call [these matters] to the court’s attention during the sentencing hearing,
“that a jury’s verdict of acquittal does not prevent the sentencing court        it can hardly be said that these matters were su fficiently ‘controverted’ to
from considering conduct underlying the acquitted charge, so long as that        trigger the sentencing court’s fact-finding duty under Rule 32(c)(1)”).
Nos. 01-5602/5603/5666/5667                     United States v.        29     30   United States v.          Nos. 01-5602/5603/5666/5667
                                                  Solorio et al.                    Solorio et al.

version of the rule as requiring that “a court may not merely                  F. Firearm Enhancement
summarily adopt the factual findings in the presentence report
or simply declare that the facts are supported by a                               Next we address Juarez’s claim that the district court erred
preponderance of the evidence.” United States v. Tarwater,                     in increasing his base offense level by two levels pursuant to
308 F.3d 494, 518 (6th Cir. 2002).                                             U.S.S.G. § 2D1.1(b)(1) for possessing a firearm.

   Luna claims that the district judge did not make a                            1. Relevant Factual Development
determination, for sentencing purposes, of the quantity of
drugs for which Luna was responsible. This claim is                               Early in the morning of March 18, 1999, Juarez drove away
meritless. At Luna’s sentencing hearing, the district judge                    from his apartment, located at 710 Saxony Drive, in a white
stated that the government was “maintaining that . . . the                     pickup truck. Inside of the pickup was forty pounds of
conspiracy was between 200 and 400 kilograms.” J.A. at                         marijuana. Juarez helped Hearn to unload the marijuana at
2378. The district judge determined that once the drug                         Hearn’s residence. Juarez was stopped and arrested while he
quantity reached 150 kilograms (which it did in this case), the                was leaving. Subsequent to his arrest, the police searched
total offense would be 38, because “[t]hat’s the highest it can                Juarez’s apartment pursuant to a valid search warrant. In the
be.” J.A. at 2378. The district court correctly found that a                   apartment, they found two 9-mm Glock handguns. The guns
further quantity determination was unnecessary because the                     were located at the bottom of a pair of boots, which were on
base offense level “would be the same whether it’s 150                         top of a little black bag. Inside the bag were a variety of drug
kilograms or 900 kilograms or whatever.” J.A. at 2378; see                     trafficking tools: a money counter, drug ledgers, paper
also United States Sentencing Commission Guidelines                            money wrappers, and rubber bands. Boxes for the firearms
Manual (“U.S.S.G.”) § 2D1.1(C)(1), at 112 (2001) (reporting                    were later found at Luna’s house.
that for “150 KG or more of Cocaine” the base offense level
is 38). The district court therefore properly resolved all                       At the time of Juarez’s arrest, his apartment was in disarray.
material factual disputes. Luna’s contention to the contrary                   The food in the refrigerator was rotten, and the electricity was
is meritless.16                                                                turned off. Juarez claims that he was not living in the
                                                                               apartment at the time of the arrest in March but admits that he
                                                                               and his wife had lived there the previous summer and that his
                                                                               name was on the lease.
                                                                                 2. Legal Analysis
                                                                                  “A district court’s finding that a defendant possessed a
    16                                                                         firearm during a drug crime is a factual finding subject to the
       W e cannot help but noting tha t Luna’s claim also fails be cause it    clearly erroneous standard of review.” United States v.
was no t prop erly raised . As we held in the Hurst case (and as the recent
amendment to Rule 32 was meant to insure), a criminal defendant has a          Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002), cert. denied,
duty to tell the district judge that matters are controverted. Luna never      123 S. Ct. 1005 (2003). Enhancement analysis under
raised this matter in front of the district judge. Luna’s counsel was asked,   § 2D1.1(b)(1) has two parts. First, the government has the
“Are there any other issues in dispute, Mr. Drake, that I didn’t already       initial burden of showing “by a preponderance of the evidence
rule on?” He answered, “No, your Honor.” J.A. at 2379.
Nos. 01-5602/5603/5666/5667              United States v.    31    32   United States v.          Nos. 01-5602/5603/5666/5667
                                           Solorio et al.               Solorio et al.

that the defendant possessed the firearm” for purposes of          (1996) (affirming the enhancement of a defendant’s sentence
§ 2D1.1(b)(1). United States v. Miggins, 302 F.3d 384, 390-        when the guns were found in a “residence to which
91 (6th Cir. 2002), cert. denied, 123 S. Ct. 712, 909, 1772        [defendant] had full access and where drugs were found”).
(2002-03). Possession may be actual or constructive. “To           Juarez’s argument that Luna was the one who owed the guns
establish constructive possession, the government must show        is irrelevant. See United States v. Saikaly, 207 F.3d 363, 368
that the defendant had ownership, dominion, or control over        (6th Cir. 2000) (“Saikaly also seems to rely on the fact that he
the [firearm] or dominion over the premises where the              did not own the firearms. This is irrelevant. The issue is not
[firearm] is located.” Id. (quotations omitted). “[T]he burden     ownership, but possession of the firearms.”). The district
[then] shifts to the defendant to demonstrate that it was          court did not clearly err in applying this enhancement.
clearly improbable that the weapon was connected to the
offense.” Id. Only if the defendant can make this showing          G. Supervisory Role Increase
does the enhancement not apply.
                                                                     We next turn to Solorio’s claim that the district court erred
  The government met its burden of showing constructive            in increasing his base offense level by three points for his
possession. Juarez leased the apartment where the guns were        leadership role in the drug conspiracy. We conclude that the
found and had left them in the apartment on the morning of         district court did not err in making this determination, and
March 18, 1999, the morning he was arrested. It therefore          therefore uphold the supervisory role increase.
falls to Juarez to prove that it was clearly improbable that the
weapon was connected to the offense. Juarez has not shown            We note at the outset that it is unclear what standard of
this to be the case. The firearms, two 9-mm handguns, are          review we employ with regard to a district court’s
weapons “often used in drug trafficking.” United States v.         enhancement decision under § 3B1.1. A few years ago it was
Jernigan, Nos. 01-2121/2304, 2003 WL 463483, at *4 (6th            clear that we reviewed a district court’s factual findings for
Cir. Feb. 18, 2003). Moreover, the firearms were found in a        clear error and legal conclusions de novo. See, e.g., United
pair of boots on top of a bag full of other objects related to     States v. Taylor, 248 F.3d 506, 515 (6th Cir.), cert. denied,
drug trafficking, including a money counter, drug ledgers,         534 U.S. 981 (2001). The Supreme Court’s decision in
paper money wrappers, and rubber bands. When Juarez was            Buford v. United States, 532 U.S. 59 (2001), however, has
arrested on March 18, 1999, he had just smuggled forty             suggested that deference may be appropriate when we review
pounds of marijuana, apparently from the apartment. The            a district court’s application of the Guidelines, especially
district court found “evidence of drug activity in that            when it involves fact-bound determinations, issues that
apartment both before and after the guns were brought there.”      district courts may have comparatively greater expertise in
J.A. at 2454. Juarez has not therefore shown that it was           addressing, or situations in which there will be limited value
clearly improbable that the weapon was connected to the            to uniform court of appeals precedent. In United States v.
offense. See Keszthelyi, 308 F.3d at 579 (affirming the            Dupree, 323 F.3d 480 (6th Cir. 2003), this court noted that
enhancement of a defendant’s sentence when drugs were              the impact of Buford on supervisory enhancements had not
found in the residence and firearms were found in the              been resolved, stating that “standard of review for
defendant’s bedroom, including a shotgun found in a closet         enhancements under § 3B1.1 is now open to question.” Id. at
containing cash from the drug transactions); United States v.
Hill, 79 F.3d 1477, 1486 (6th Cir.), cert. denied, 519 U.S. 858
Nos. 01-5602/5603/5666/5667                      United States v.        33     34    United States v.         Nos. 01-5602/5603/5666/5667
                                                   Solorio et al.                     Solorio et al.

494. The Dupree court apparently did not resolve this thorny                    should be considered a supervisor. As the government notes,
question.17                                                                     there is uncontroverted evidence that Solorio recruited Moises
                                                                                Picos-Picos as an accomplice and exercised control over him.
   We do not need to resolve the Buford question here, for we                   Solorio arranged for Picos-Picos to come from Tijuana to
would affirm the district court’s application of the                            help Solorio and leased an apartment for him. In return,
enhancement regardless of the standard of review. To begin                      Picos-Picos worked for Solorio, delivering bags of cocaine
the analysis, Guideline § 3B1.1(b) provides that a court                        and money, and keeping records of drug transactions for
should increase a defendant’s base offense level by three                       Solorio. Solorio planned and directed all of Picos-Picos’s
levels, “[i]f the defendant was a manager or supervisor (but                    drug activities. This is sufficient to establish that Solorio was
not an organizer or leader) and the criminal activity involved                  a supervisor within the meaning of the Guideline. See
five or more participants or was otherwise extensive.” See                      Dupree, 323 F.3d at 494 (upholding the enhancement for a
U.S.S.G. § 3B1.1(b) (2001). The government bears the                            robber who supplied the gun, provided information about the
burden of proving that the enhancement applies. Dupree, 323                     victimized store and armored truck service, and moved
F.3d at 491.                                                                    surveillance cameras).
  In considering whether a defendant was a manager or                              Solorio’s only argument against the enhancement is that the
supervisor, we consider such factors as “‘the defendant’s                       “Picos-Peraza matter was separate from any dealing with
exercise of decision-making authority, any recruitment of                       Omar Rocha and the conspirators related to Mr. Rocha.”
accomplices, the claimed right to a larger share of the fruits of               Solorio Br. at 24. Solorio therefore argues that an
the crime, the degree of participation in planning the offense,                 enhancement under § 3B1.1(b) was inappropriate because it
and the degree of control the defendant exercised over                          requires a showing that the enterprise had “five or more
others.’” Id. Under this standard, we believe that Solorio                      participants or was otherwise extensive.”             U.S.S.G.
                                                                                § 3B1.1(b). Solorio argues, in effect, that the jury’s verdict
                                                                                holding that he conspired only with respect to 500 grams of
    17                                                                          cocaine proves that he did not belong to the larger conspiracy.
        After looking closely at Dupree, we are of the opinion that the
Dupree court did not resolve the Buford issue. The Dupree court noted
                                                                                It supposedly demonstrates that the jury believed that there
that we had (in an unpublished opinion) suggested that Buford may mean          was a subconspiracy between himself and Picos-Picos. This
that § 3B1.1 enhancements should be reviewed under a more deferential           conspiracy, Solorio alleges, is not “extensive” within the
standard of review. The Dupree court did no t resolve this conflict, but        meaning of the Guideline and does not involve five people —
concluded by stating that “[g]iven this court’s recent reference to a more      thereby preventing Solorio from receiving the enhancement.
deferential standard of review, we uphold the enhancement based on the
district court’s findings.” United States v. Dupree, 323 F.3d 480 , 494 (6th
Cir. 2003).
                                                                                   We do not find this argument persuasive. The district court
     Although this language could be taken to read that the Buford              at sentencing explicitly found that Solorio was part of the
deferential standard of review is now the law for § 3B 1.1 applications, we     larger conspiracy. Even if the jury had found that Solorio was
believe that the Dupree court did not decide this issue. The court never        only part of a conspiracy between himself and Picos-Picos,
stated that Buford either did or did not apply to this factual situation, and   the differences in the standards of proof at the guilt and
Dupree contains no legal analysis of the issue. Under these circumstances
we do not believe that we have taken a clear p osition on the applicability
                                                                                sentencing phases resolve any seeming inconsistency. As a
of Buford to review of § 3 B1.1 enhance ments.                                  result, even if the jury verdict were construed as finding that
Nos. 01-5602/5603/5666/5667              United States v.    35    36    United States v.          Nos. 01-5602/5603/5666/5667
                                           Solorio et al.                Solorio et al.

Solorio did not belong to the larger conspiracy beyond a           reduction. There is no doubt that Solorio was intimately
reasonable doubt, the district judge still could have found by     connected with the drug conspiracy. His own records indicate
a preponderance that Solorio did belong to the larger              that he distributed extensive amounts of cocaine and
conspiracy. See United States v. Watts, 519 U.S. 148, 157          marijuana. To the extent that Solorio did not distribute the
(1997) (explaining “that a jury’s verdict of acquittal does not    drugs himself, he was directing his associate Picos-Picos to
prevent the sentencing court from considering conduct              do so in his stead. Picos-Picos delivered large quantities of
underlying the acquitted charge, so long as that conduct has       drugs for Solorio and received cash payments for him as well.
been proved by a preponderance of the evidence”). We               The control he exerted over Picos-Picos clearly reflects that
therefore affirm the district court’s decision to apply the        Solorio was no minor participant in this conspiracy. We can
supervisory enhancement.                                           see no error in the district court’s denial of the mitigating-role
                                                                   reduction.
H. Mitigating Role Reduction
                                                                   I. Downward Departure
  Solorio claims that the district court erred in denying him
a mitigating-role reduction pursuant to U.S.S.G. § 3B1.2 for         We now turn to the defendants’ last claim of error. Juarez
having a small role in the conspiracy. This claim is easily        and Solorio both argue that the district court erred by refusing
resolved against Solorio.                                          to depart downward from their sentences under the
                                                                   Guidelines. Juarez argues that he should have been given a
  “Whether a defendant is entitled to a downward                   downward departure on the basis of harsh conditions of
[adjustment] under § 3B1.2 depends heavily on factual              confinement. Solorio argues he should have been given a
determinations, which we review only for clear error.”             downward departure based on his status as a deportable
United States v. Campbell, 279 F.3d 392, 396 (6th Cir. 2002).      person.
Solorio has the burden of proving, by a preponderance of the
evidence, that he is entitled to the reduction. United States v.     We have held that “a district court’s discretionary refusal to
Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002). Under              depart downward is generally not appealable, unless the
§ 3B1.2, a defendant can receive a four-level reduction for        district court mistakenly believed it did not have legal
being a minimal participant or a two-level reduction for being     authority to depart downward.” United States v. Pruitt, 156
a minor participant. “A minimal participant is one who is          F.3d 638, 650 (6th Cir. 1998), cert. denied, 525 U.S. 1091
‘plainly among the least culpable of those involved in the         (1999). The defendant has the burden to show that the district
conduct of a group,’ and a minor participant is one who ‘is        court believed it lacked authority to depart downward. See
less culpable than most other participants, but whose role         United States v. Cook, 238 F.3d 786, 791 (6th Cir.) (stating
could not be described as minimal.’” Id. (quoting U.S.S.G.         that “where explicit mention is not made of the court’s power
§ 3B1.2, cmt. nn. 1, 3).                                           to depart downwards, ‘it should be assumed that the court in
                                                                   the exercise of its discretion found downward departure
  Solorio here was not less culpable than most of the other        unwarranted’”) (citation omitted), cert. denied, 534 U.S. 876
participants in the conspiracy. All the reasons that supported     (2001).
the district court’s finding that Solorio was a supervisor
justify the denial of Solorio’s request for a mitigating-role
Nos. 01-5602/5603/5666/5667              United States v.     37    38   United States v.       Nos. 01-5602/5603/5666/5667
                                           Solorio et al.                Solorio et al.

   In both Juarez’s and Solorio’s cases, the district judge         depart in this case is unreviewable. We accordingly dismiss
stated that she did not find a departure to be authorized, but      Juarez’s and Solorio’s allegations of error.
that even if it were, she would exercise her discretion not to
depart. It appears that we have never squarely addressed in a                         III. CONCLUSION
published opinion whether a district judge’s refusal to grant
a departure is reviewable when it is clear both that the judge        For the foregoing reasons, we AFFIRM the district court’s
believes that she has no authority to depart and that she would     decision in all respects.
not depart even if she had the authority — although this
phrasing seems to be a common practice in district courts.
See United States v. Hill, No. 89-5952/5954/5957, 1991 WL
63621, at *3 (6th Cir. Apr. 23, 1991) (holding unappealable
a refusal to depart when the judge made an apparently
ambiguous remark indicating that he would not depart even
if he were authorized to do so); see also United States v.
Norfleet, No. 98-1311, 1999 WL 1281718, at *2-*3 (6th Cir.
Dec. 28, 1999), cert. denied, 529 U.S. 1135 (2000); United
States v. Coleman, No. 98-1861, 2000 WL 1872015, at *1
(6th Cir. Dec. 14, 2000).
   If there was any doubt about the issue, we dispel it today by
holding the district judge’s refusal to depart here to be
unreviewable. This accords with the practice of the federal
circuits that have considered the question. United States v.
DeLeon, 187 F.3d 60, 69 (1st Cir.), cert. denied, 528 U.S.
1030 (1999); United States v. Williams, 898 F.2d 1400, 1403
(9th Cir. 1990); see also Charles Alan Wright et al., 15B
Federal Practice & Procedure § 3918.8, at 585 (2d ed. 1992)
(“If the district court both concludes that there is no authority
to make a downward departure and that in any event there is
no basis for making a departure, the alternative discretionary
refusal to depart has been held sufficient to support the
sentence and to defeat review.”). Given the “strong
presumption that a district court’s denial of a downward
departure is based on an exercise of discretion,” Cook, 238
F.3d at 791, and the useless formality of a remand to a judge
who has already stated that she would not exercise her
discretion to depart, we conclude that the decision not to
