                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0232p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                                Plaintiff-Appellee/ -
 UNITED STATES OF AMERICA,

                                 Cross-Appellant, -
                                                      -
                                                      -
                                                          Nos. 05-4215/4337

                                                      ,
         v.                                            >
                                                      -
                                                      -
                             Defendant-Appellant/ -
 HERMAN E. GARNER, III,

                                  Cross-Appellee. -
                                                      -
                                                     N
                       Appeal from the United States District Court
                    for the Northern District of Ohio at Youngstown.
                  No. 01-00321—David D. Dowd, Jr., District Judge.
                                            Argued: April 25, 2007
                                     Decided and Filed: June 20, 2007
             Before: SILER and GILMAN, Circuit Judges; ZATKOFF, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: K. Scott Hamilton, DICKINSON, WRIGHT, Detroit, Michigan, for Appellant. Samuel
A. Yannucci, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee.
ON BRIEF: Katherine L. MacPherson, DICKINSON, WRIGHT, Grand Rapids, Michigan, for
Appellant. Samuel A. Yannucci, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for
Appellee. Herman E. Garner III, Lisbon, Ohio, pro se.
                                              _________________
                                                  OPINION
                                              _________________
        ZATKOFF, District Judge. In 2003, Garner was convicted by a jury of conspiracy to
distribute cocaine and sentenced to a statutory mandatory minimum sentence of 120 months because
of a sentencing enhancement due to a previous felony drug conviction. After this Court affirmed
Garner’s conviction and sentence and Garner filed a petition for writ of certiorari, the case was
remanded to the district court for re-sentencing in light of United States v. Booker, 543 U.S. 220
(2005). On remand, the district court sentenced Garner to 96 months imprisonment. Garner again

         *
         The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                          1
Nos. 05-4215/4337                  United States v. Garner                                        Page 2


appeals his conviction and sentence and the Government appeals the sentence of 96 months. We
VACATE the judgment of the district court and REMAND the case for re-sentencing consistent
with the conclusions set forth herein.
                                                    I.
         On November 2, 2001, a jury convicted Garner of (1) “conspiracy to distribute and to possess
with the intent to distribute, and distribute, cocaine . . . ,” in violation of 21 U.S.C. §§ 841(a)(1) and
846, and (2) being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (the
felon-in-possession charge is not at issue in this appeal). The jury also completed a Special Verdict
form for Garner, wherein it concluded that the amount of cocaine involved in the conspiracy was
at least 500 grams (½ kilogram) but less than 5 kilograms. After conducting sentencing hearings,
the district court found that Garner was responsible for 2 to 3.5 kilograms of cocaine, giving Garner
a Base Offense Level of 28. The district court also concluded that Garner had a Criminal History
Category of II and determined that the Guideline range was 87 to 108 months. As the Government
had filed a sentencing enhancement for a previous felony drug conviction pursuant to 21 U.S.C.
§ 851 prior to trial, however, the district court imposed the statutory minimum sentence of 120
months pursuant to 21 U.S.C. §841(b)(1)(B).
         On January 27, 2004, this Court denied Garner’s appeal of his convictions, affirmed the
district court’s decision to sentence Garner to 120 months of imprisonment and concluded that the
district court’s attribution of at least 2 kilograms of cocaine to Garner was not clearly erroneous.
United States v. Forest, 355 F.3d 942 (6th Cir. 2004). Garner’s petition for rehearing by the Court
was denied on March 25, 2004.
        On May 4, 2004, Garner filed a petition for writ of certiorari with the U.S. Supreme Court,
wherein he appealed both his conviction and his sentence. While the petition was pending, the
Supreme Court issued Booker. The Supreme Court then vacated the judgment and remanded this
case to the Court “for further consideration in light of” Booker. On February 17, 2005, the Court
remanded this case to the district court “for re-sentencing pursuant to the opinion of the Supreme
Court” in Booker.
       After both parties submitted written sentencing memoranda, a hearing was held on May 31,
2005, at which the district court asked:
                What is the statutory penalty under provisions of the United States
                Code, and applicable imprisonment range under the U.S. Sentencing
                Guidelines, where: (1) the defendant is found guilty in a multi-
                defendant cocaine conspiracy alleging 500 grams or more; (2) the
                jury’s special verdict finds only the amount of cocaine involved in
                the overall conspiracy (500 kilograms to 5 kilograms) as opposed to
                particularized findings with respect to the amount of cocaine
                attributable to the individual defendants; and (3) the defendant
                contests the amount of cocaine attributable to him?
The parties then briefed that issue. Garner maintained that his crimes yielded a Base Offense Level
of 12 because there was “an indeterminate amount of cocaine.” The Government argued that re-
sentencing was governed by Harris v. United States, 536 U.S. 545 (2002), and Almendarez-Torres
v. United States, 523 U.S. 224 (1998), which required imposition of the enhanced mandatory
minimum sentence of 120 months. The district court rejected both positions. On August 31, 2005,
the district court ruled that it would sentence Garner within the advisory Guideline range of 87-108
months, relying on “the principles of sentencing lenity” that the district court believed should apply
Nos. 05-4215/4337                  United States v. Garner                                        Page 3


in this case. On September 8, 2005, the district court sentenced Garner to 96 months of
imprisonment.
        Garner, initially proceeding in pro per, again appealed his conviction and sentence. He also
alleges a Fourth Amendment violation and raises six claims of ineffective assistance of counsel. The
Government also appeals the sentence imposed by the district court on remand. After the parties
filed their initial briefs, this Court assigned Garner counsel for the purpose of filing a brief
specifically addressing the propriety of Garner’s conviction and sentence.
                                                   II.
        Garner’s conviction was not overturned by either this Court or by the Supreme Court. The
only issue for the district court on remand was to re-sentence Garner in light of Booker. In this
appeal, however, Garner has set forth a number of claims that should have been raised at the time
of his original appeal, if at all. Garner’s claims of ineffective assistance of counsel and the Fourth
Amendment violation were not presented to the district court during the original proceeding, nor did
he raise them before the district court upon re-sentencing in 2005. To the extent that Garner seeks
to argue for the first time on this appeal his claims of ineffective assistance of counsel and Fourth
Amendment claims, such claims are not well-taken. See Wright v. Holbrook, 794 F.2d 1152, 1157
(6th Cir. 1986) ([T]he general rule is that this court will not consider issues not raised in the district
court.”). The Court will not review an issue for the first time on appeal unless it involves an
“exceptional case” or “particular circumstances” where a “plain miscarriage of justice” would occur.
United States v. Pickett, 941 F.2d 411, 415 (6th Cir. 1991). In addition, the Court typically declines
to review ineffective assistance of counsel claims that are raised for the first time on appeal because
appellate courts are not equipped to resolve factual issues, United States v. Humphrey, 287 F.3d 422,
453 (6th Cir. 2002).
        In this case, Garner has not demonstrated that there are exceptional circumstances
demonstrating why the Fourth Amendment and ineffective-assistance-of-counsel issues were not
raised previously or how a miscarriage of justice would result if not considered at this time. In
addition, to the extent that the record at any time has contained the information upon which a
reviewing court could evaluate Garner’s claims, see Humphrey, supra, such record is not before us.
Accordingly, we decline to review Garner’s claims of ineffective assistance of counsel and Fourth
Amendment violations on this appeal.
                                                   III.
       Garner argues that the jury made no determination of the amount of cocaine attributable to
him personally. Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000) (and Booker and Blakely
v. Washington, 542 U.S. 296 (2004)), he argues that the quantity of drugs attributable to him in the
conspiracy is now considered an element of a violation of 21 U.S.C. § 841(b)(1)(A) and (B) that
must be proven beyond a reasonable doubt. As such, Garner argues that his conviction should be
overturned. See United States v. Gonzalez, 420 F.3d 111, 125-27 (2d Cir. 2005).
        First, this Court has already affirmed Garner’s conviction and his conviction was not at issue
when this matter was remanded to the district court in 2005. Second, it should be noted that Garner
is not technically appealing his conviction. Although Garner states that he is appealing his
conviction, he does not construct an argument that challenges the fact that he was convicted of
conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Rather, Garner’s
challenge is the propriety of the district court making a finding as to the amount of cocaine
attributable to him such that it affects the penalty to which he is subject pursuant to 21 U.S.C.
§841(b). For the reasons stated below, we need not consider the merits of that argument.
Nos. 05-4215/4337                 United States v. Garner                                     Page 4


                                                 IV.
        The Court reviews legal determinations regarding sentencing de novo. United States v.
Canestraro, 282 F.3d 427, 431 (6th Cir. 2002). Garner asserts that in the post-Booker era, the Sixth
Amendment dictates that unless the drug quantity used to sentence him is submitted to a jury and
determined beyond a reasonable doubt, the only quantity of drugs that can be attributed to him is an
indeterminate amount. Garner therefore argues that because the jury did not specifically attribute
an amount of cocaine to him, the district court erroneously failed to conclude that he has been
convicted of conspiring to distribute an indeterminate amount of cocaine. Garner asserts that his
Base Offense Level is 12 and his guideline range should be 12 to 18 months of imprisonment based
on that indeterminate amount.
        On the other hand, the Government contends that the district court erred when re-sentencing
Garner to 96 months of imprisonment. The Government argues that the district court previously had
determined that 2 to 3.5 kilograms of cocaine was attributable to Garner, that this Court had upheld
that finding and that such findings should not been disturbed on remand. The Government argues
that Booker did not address the use of judge-found facts to increase the statutory mandatory
minimum sentence, and the Government asserts that Harris v. United States, supra, governs this
case. The Government therefore asserts that the mandatory minimum sentence of 120 months
originally imposed by the district court was appropriate and should be reinstated.
        We conclude that both parties overlook the critical fact of the jury’s findings in this case.
Although the district court stated that “[t]he amount of cocaine attributable to Garner exceeded 500
grams [w]as determined by the Court, but not the jury,” the record reveals that the question of the
drug quantity attributable to Garner actually was submitted to the jury and was determined beyond
a reasonable doubt. As the Verdict states, the jury convicted Garner of “conspiracy to possess with
intent to distribute, and distribute, cocaine as charged in the indictment.” In addition, the jury
completed a separate but substantively identical Special Verdict form for each of the three
defendants (including Garner), wherein the jury was asked to determine how much that defendant
was guilty of conspiring to distribute. Specifically, the completed Special Verdict for Garner states:
               We, the jury, having been duly impanelled [sic] and sworn, and
               having found the defendant HERMAN GARNER, III guilty of
               conspiracy to distribute and possess with the intent to distribute
               cocaine, a Schedule II Controlled Substance, do further find that the
               amount of cocaine involved in the conspiracy was: (please check only
               one of the following)
                               5 kilograms or more of cocaine;
                  T            500 grams (½ kilogram) but less than 5 kilograms of cocaine;
                               less than 500 grams (½ kilogram) of cocaine.
Although the jury reached an identical verdict for each of the other two defendants, it was not bound
to find that each of the trial defendants conspired to distribute the same amount. The fact that there
was a separate Special Verdict form for each defendant demonstrates as much. Accordingly, the
jury, not the district court, determined, beyond a reasonable doubt, that Garner conspired to
distribute cocaine and the quantity of cocaine Garner conspired to distribute was at least 500 grams.
       The jury’s findings, together with the sentencing enhancement for a prior felony drug
conviction filed by the Government prior to Garner’s trial, place Garner squarely within 21 U.S.C.
§ 841(b)(1)(B)(2), i.e., he faces a mandatory minimum sentence of 120 months of imprisonment and
Nos. 05-4215/4337                        United States v. Garner                                                 Page 5


a maximum sentence of life.1 The fact that the district court thoroughly explained how it determined
that Garner was responsible for 2 to 3.5 kilograms of cocaine in furtherance of the conspiracy when
imposing the original sentence; the fact that this Court affirmed the district court’s finding of the
amount attributable to Garner; and the fact that the district court thought that it (and not the jury)
determined that Garner conspired to distribute at least 500 grams of cocaine, are irrelevant.
        For the foregoing reasons, the Court concludes that the district court erred in sentencing
Garner to a term of 96 months of imprisonment.
                                                           V.
        The Court accordingly VACATES the judgment of the district court and REMANDS this
case to the district court for the purpose of sentencing Garner to a term of imprisonment of at least
120 months.




         1
           21 U.S.C. § 841(b)(1)(B) provides that a person who violates 21 U.S.C. § 841(a)(1) where the violation
involves 500 grams or more of cocaine shall be sentenced to a term of imprisonment of at least 5 years and not more than
40 years; provided, that in the event the person commits such violation after a prior conviction for a felony drug offense
which has become final, the person shall be sentenced to a term of imprisonment of at least 10 years and not more than
life imprisonment.
