        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206              2    United States v. Swanberg et al.      Nos. 02-1659/1836
     ELECTRONIC CITATION: 2004 FED App. 0164P (6th Cir.)
                 File Name: 04a0164p.06                      Appellee. ON BRIEF: Eva A. Kipper, McDONALD,
                                                             MARIN & KIPPER, Marquette, Michigan, Jane E. Lee,
                                                             Portland, Maine, for Appellants. Joan E. Meyer,
UNITED STATES COURT OF APPEALS                               ASSISTANT UNITED STATES ATTORNEY, Grand
                                                             Rapids, Michigan, for Appellee.
               FOR THE SIXTH CIRCUIT
                 _________________                                               _________________

UNITED STATES OF AMERICA , X                                                         OPINION
            Plaintiff-Appellee, -                                                _________________
                                 -
                                 -   Nos. 02-1659/1836         RONALD LEE GILMAN, Circuit Judge. Craig Swanberg
           v.                    -                           and Adam Tuimala were part of a drug distribution ring
                                  >                          operating in Illinois and Michigan. Tuimala sold cocaine and
                                 ,                           marijuana to Terri Sanderson of Marquette, Michigan.
CRAIG ALAN SWANBERG              -
(02-1659) and ADAM ELWIN                                     Sanderson in turn distributed the drugs to various individuals,
                                 -                           including Swanberg, who would then sell the drugs and share
TUIMALA (02-1836),               -                           the profits with Sanderson. Swanberg was convicted by a
       Defendants-Appellants. -                              jury of conspiring to distribute cocaine and of possessing
                                 -                           cocaine with the intent to distribute, all in violation of
                                N                            21 U.S.C. §§ 846 and 841(a)(1). He was sentenced to 63
      Appeal from the United States District Court           months in prison. Tuimala pled guilty to one count of
   for the Western District of Michigan at Marquette.        conspiring to distribute cocaine, also in violation of 21 U.S.C.
No. 01-00033—Robert Holmes Bell, Chief District Judge.       §§ 846 and 841(a)(1), and was sentenced to 84 months in
                                                             prison.
                  Argued: April 29, 2004
                                                               Swanberg contends on appeal that the district court
            Decided and Filed: June 3, 2004                  committed clear error in determining the drug quantity that
                                                             was attributable to him for sentencing purposes. Tuimala
  Before: GUY, GILMAN, and COOK, Circuit Judges.             argues that his waiver of the right to appeal his sentence was
                                                             invalid because his plea agreement with the government was
                   _________________                         breached when the district court unwittingly relied on
                                                             information from Tuimala’s guilty-plea proffer to enhance his
                        COUNSEL                              sentence for a leadership role in the offense. For the reasons
                                                             set forth below, we AFFIRM Swanberg’s sentence but
ARGUED: Eva A. Kipper, McDONALD, MARIN &                     VACATE Tuimala’s sentence and REMAND his case for
KIPPER, Marquette, Michigan, Jane E. Lee, Portland, Maine,   the limited purpose of resentencing without the sentence
for Appellants. Joan E. Meyer, ASSISTANT UNITED              enhancement.
STATES ATTORNEY, Grand Rapids, Michigan, for

                             1
Nos. 02-1659/1836      United States v. Swanberg et al.          3   4      United States v. Swanberg et al.     Nos. 02-1659/1836

                       I. ANALYSIS                                       transactions of the minimum amount Ms. Sanderson
                                                                         reported she would purchase/receive from Mr. Tuimala).
A. The quantity of drugs attributable to Swanberg
                                                                         Ms. Sanderson testified [that] Mr. Swanberg received 75
   Swanberg contends that the district court erred in                    percent of the cocaine she purchased from Mr. Tuimala.
attributing 18.75 ounces of cocaine and 9 grams of marijuana             Taking into account the conservative quantity of cocaine
to him in calculating his sentence. “We review a district                attributed to Mr. Sanderson, receipt of this percentage of
court's drug quantity determination for clear error. The                 the total amount distributed or intended for distribution
government must prove the amount to be attributed to a                   provides a culpability attributable to Mr. Swanberg of
defendant by a preponderance of the evidence.” United States             18.75 ounces (531.5 grams).
v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000) (citations
omitted). This court has also held that “[t]estimonial                  Although Swanberg objected to the Presentence Report’s
evidence from a coconspirator may be sufficient to determine         calculation of the drug quantity attributable to him, he
the amount of drugs for which another coconspirator should           produced no contradictory evidence at the hearing. This court
be held accountable.” Id.                                            has held that “[i]n most instances, a sentencing court may rely
                                                                     on undisputed facts that are recited in a presentence report to
  At sentencing, the district court relied on the following          conclude that the defendant committed acts offered as
statement of facts set forth in the Presentence Report:              relevant conduct.” United States v. Shafer, 199 F.3d 826, 830
                                                                     n1. (6th Cir. 1999); see also Fed. R. Crim. P. 32(i)(3) (“At
  Using the most conservative estimate of the quantity of            sentencing, the court . . . may accept any undisputed portion
  drugs received by Ms. Sanderson from Mr. Tuimala, she              of the presentence report as a finding of fact . . . .”). In the
  is culpable for 25 ounces (708.75 grams) of cocaine and            present case, the facts set forth in the Presentence Report were
  8 pounds (3,628.8 grams) of marijuana. This quantity               consistent with the other evidence presented in Swanberg’s
  was arrived at by taking into account Ms. Sanderson’s              case. The district court therefore did not clearly err by relying
  report of her frequency and quantity of purchases from             on the Report in determining the quantity of drugs attributable
  Mr. Tuimala, along with Mr. Tuimala’s report of his                to Swanberg.
  sales to Ms. Sanderson and her boyfriend when the two
  traveled to Chicago for said transactions. Using a two-            B. Tuimala’s waiver of his right to appeal
  week interval between purchases beginning on
  February 1, and ending on May 19, 2001, it was                        Criminal defendants may waive their right to appeal as part
  estimated a total of eight transactions can be attributed to       of a plea agreement so long as the waiver is made knowingly
  Ms. Sanderson. The evidence at hand reflects four 2-               and voluntarily. United States v. Fleming, 239 F.3d 761, 763-
  pound purchases of marijuana, and the following cocaine            64 (6th Cir. 2001). In the present case, Tuimala waived his
  purchases: four at 4 ounces each (based [upon] Mr.                 right to appeal his sentence in his plea agreement, but now
  Tuimala’s report and Ms. Sanderson’s acknowledgment                contends that the waiver was not knowingly made because the
  of transactions of up to 4 ounces), one at 3 ounces (based         district court erroneously informed him at the sentencing
  on Ms. Sanderson’s report of transactions of 2 to 3                hearing that he had the right to appeal. “This Court reviews
  ounces), and three at 2 ounces each (based on                      the question of whether a defendant waived his right to appeal
  conservative application, to the remaining number of
Nos. 02-1659/1836       United States v. Swanberg et al.       5    6        United States v. Swanberg et al.   Nos. 02-1659/1836

his sentence in a valid plea agreement de novo.” United             defendant that “you do have the right to appeal this matter to
States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003).                 the United States Court of Appeals for the 6th Circuit.” Id.
                                                                    On appeal, this court held that “[t]he record here clearly
   The plea agreement between Tuimala and the government            demonstrates that Fleming understood the waiver contained
states that “[t]he defendant and the United States knowingly        in the plea agreement[,]” id. at 764, and that the district
and expressly waive all rights conferred by 18 U.S.C. § 3742        court’s subsequent statement to Fleming did not restore his
to appeal whatever sentence is imposed, including any issues        right to appeal. Id. at 765. This court therefore dismissed the
that relate to the establishment of the guideline range . . . .”    appeal. Id. at 765-66.
At the plea colloquy, Tuimala answered “yes” when the
district court asked if he “had an adequate opportunity to read       As in Fleming, the waiver provision in the present case was
and review this entire plea agreement with [his] attorney[.]”       contained in a written plea agreement, Tuimala was informed
The prosecutor then read into the record various parts of the       in open court that he had given up his right to appeal
plea agreement. He also explained that the agreement                whatever sentence he received, and the district court expressly
“specifically states that there is no appeal—Mr. Tuimala            found that Tuimala made the waiver knowingly. Tuimala
waives the right to appeal the calculation of the guideline         also “had an adequate opportunity to read and review this
range and . . . he can only appeal a departure upward or            entire plea agreement with [his] attorney[,]” a factor not
downward from the guideline range or a sentence that exceeds        mentioned in Fleming, but which also suggests that Tuimala
the maximum set by law.” Finally, the district court expressly      knowingly waived his appellate rights. We therefore
found that “the plea is made knowingly and with full                conclude that Tuimala knowingly waived the right to appeal
understanding of the rights that I’ve explained to the              whatever sentence he received, despite the district court’s
defendant.” At the subsequent sentencing proceeding,                incorrect statement to the contrary at Tuimala’s sentencing
however, the district court erroneously informed Tuimala that       hearing.
“[y]ou have a right of appeal from the sentence in this
matter.” Tuimala contends that, as a result of the district         C. The government’s alleged breach of its plea
court’s incorrect statement at sentencing, he did not                  agreement with Tuimala
knowingly give up his right to appeal.
                                                                        1.    Standard of review
   This court faced a nearly identical situation in United States
v. Fleming, 239 F.3d 761 (6th Cir. 2001), where the defendant         Tuimala’s alternative position is that even if he would have
waived his right to appeal his sentence as part of a written        normally been barred from appealing due to his waiver, he is
plea agreement. At the plea colloquy, the district court orally     not so bound in the present case because the plea agreement
informed the defendant that “the Government has the right to        was breached when information from his guilty-plea proffer
appeal any sentence that I might impose. You, on the other          was used to enhance his sentence. This use was contrary to
hand, have given up your right to appeal any sentence that I        the government’s express promise that the proffer information
might impose, even though you don’t know what the sentence          would not be used “in a subsequent prosecution or at
is going to be.” Id. at 763. The court also found “that             sentencing in this case.”
Fleming’s guilty pleas had been knowingly and voluntarily
entered.” Id. At the subsequent sentencing proceeding,               Whether the plea agreement was breached is an issue that
however, the district court erroneously informed the                we would presumptively review de novo. United States v.
Nos. 02-1659/1836      United States v. Swanberg et al.          7   8        United States v. Swanberg et al.    Nos. 02-1659/1836

Barnes, 278 F.3d 644, 646 (6th Cir. 2002). In the present            Id. This court’s decisions after Koeberlein have consistently
case, however, Tuimala objected at sentencing to the district        applied plain-error review where a defendant fails to claim
court’s application of the sentence enhancement, but did not         during sentencing that the government has breached the plea
argue that the plea agreement had been breached. The                 agreement. Barnes, 278 F.3d at 646; Teeple v. United States,
government therefore contends that Tuimala has forfeited this        No. 00-1389, 2001 WL 873644, at *1 (6th Cir. July 26, 2001)
argument on appeal. See United States v. Olano, 507 U.S.             (unpublished opinion).
725, 733 (1993) (explaining that “forfeiture is the failure to
make the timely assertion of a right”).                                In light of Olano and the authorities cited above, we will
                                                                     apply the plain-error standard of review to this issue. “When
   In support of its position, the government relies on the case     reviewing a claim under a plain error standard, this Court may
of United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995)        only reverse if it is found that (1) there is an error; (2) that is
(per curiam), where the argument that the prosecution had            plain; (3) which affected the defendant’s substantial rights;
breached the plea agreement was deemed forfeited because             and (4) that seriously affected the fairness, integrity or public
the defendant had failed to raise the issue at sentencing. The       reputation of the judicial proceedings.” Barnes, 278 F.3d at
Cullens court, however, did not consider Rule 52(b) of the           646. Plain error may be committed by the government as
Federal Rules of Criminal Procedure, which provides that “[a]        well as by the district court. Id. at 649 (reversing a conviction
plain error that affects substantial rights may be considered        because the government failed to make a certain sentencing
even though it was not brought to the court’s attention.” This       recommendation as promised in the plea agreement).
was an oversight in light of the fact that in Olano, decided
two years prior to Cullens, the Supreme Court explained that             2.    Alleged breach of the plea agreement
“forfeiture . . . does not extinguish an ‘error’ under Rule
52(b).” 507 U.S. at 733. Moreover, in United States v.                  The government promised in the written plea agreement
Koeberlein, 161 F.3d 946 (6th Cir.1998), this court noted that       that the information from Tuimala’s guilty-plea proffer would
some prior panels, including the one that decided Cullens, had       not be used against him at sentencing. In his proffer, Tuimala
“declined to review objections that were not raised below[,]”        stated that he
id. at 948, while other panels had applied plain-error review
where defendants failed to raise a sentencing issue in the               supplied multiple individuals with cocaine and marijuana
district court. Id. at 949. The Koeberlein court went on to              for distribution in Marquette County, Michigan. These
state:                                                                   distributors would receive their supply of illegal drugs
                                                                         from the defendant through a rendevous with him at
  As these cases indicate, our opinions have not made                    predetermined locations in Chicago, Illinois or
  crystal clear whether failure to raise a timely objection to           Marquette.
  a sentencing decision in the district court precludes us
  from conducting review for plain error on appeal. We               This information was repeated in Paragraph 55 of the
  hold that it does not. Where, as here, a criminal                  Presentence Report. Significantly different information was
  defendant has failed to object below, he or she must               contained in the statement of facts to which the parties
  demonstrate that the error was plain as defined by Fed.            stipulated as part of the plea agreement. The stipulation
  R. Crim. P. 52(b) before we may exercise our discretion            provides in relevant part that “[f]rom February to May, 2001,
  to correct the error.                                              Adam Elwin Tuimala supplied Terr[i] Sanderson with cocaine
Nos. 02-1659/1836      United States v. Swanberg et al.         9   10    United States v. Swanberg et al.      Nos. 02-1659/1836

. . . . Sanderson, in turn, sold the cocaine to Craig Swanberg,       that’s leadership. Not organizing, but it’s leadership, and
Richard Feathers, and others.” The material difference                the two-point calculation for leadership this Court
between the proffer and the stipulation is that the proffer           believes is appropriate in this case.
states that Tuimala supplied drugs to “multiple individuals[,]”
whereas the stipulation names only Sanderson as the recipient       (Emphasis added.)
of drugs from Tuimala.
                                                                       The district court’s statement indicates reliance on both the
  At sentencing, the district court enhanced Tuimala’s              plea agreement stipulation and Paragraph 55 of the
offense levels by two levels for his alleged leadership role in     Presentence Report (which contains the information from the
the offense. The court made the following statement in              proffer) in enhancing Tuimala’s sentence. After describing
connection with the enhancement:                                    Paragraph 55, the court incorrectly stated: “That’s accurate.
                                                                    That’s what the parties agreed to. . . . I think this is totally
  [A page of the plea agreement] contains the parties’              pertinent.” In fact, however, the parties agreed only to the
  stipulation to the following statement of facts. . . .            facts as set forth in the stipulation, not as stated in Paragraph
                                                                    55. The plea agreement was therefore violated when the
  [F]rom February to May of 2001, Adam Elwin Tuimala                district court unwittingly relied upon the information from
  supplied Terri Sanderson with cocaine, which Sanderson            Tuimala’s guilty-plea proffer in imposing the sentence
  distributed to others in and around Marquette,                    enhancement, and the prosecutor said nothing to correct this
  Michigan. . . .                                                   error. This breach adversely “affected [Tuimala’s] substantial
                                                                    rights[,]” Barnes, 278 F.3d at 646, because it caused Tuimala
  Is that accurately what was entered?                              to receive a more severe sentence.
  [Defense counsel]: That’s accurate, Your Honor.                     The only remaining question is whether the breach
                                                                    “seriously affected the fairness, integrity or public reputation
  [The prosecutor]: Yes, Your Honor.                                of the judicial proceedings.” Id. This court has held that
                                                                    “violations of the plea agreements on the part of the
  THE COURT: Okay. Paragraph 55 [of the Presentence                 government serve not only to violate the constitutional rights
  Report] as to role in the offense, I believe, which the           of the defendant, but directly involve the honor of the
  objection specifically addresses is that Mr. Tuimala              government, public confidence in the fair administration of
  supplied multiple individuals with cocaine and marijuana          justice, and the effective administration of justice in a federal
  for distribution in Marquette County, Michigan. These             scheme of government . . . .” Id. at 648 (quoting United
  distributors would receive their supply of illegal drugs          States v. McQueen, 108 F.3d 64, 66 (4th Cir.1997) (quotation
  from the defendant through a rendezvous with him at               marks omitted)). The breach of the plea agreement in the
  predetermined locations in Chicago, Illinois or                   present case, moreover, particularly affected the fairness of
  Marquette. That’s accurate. That’s what the parties               the proceedings because Tuimala’s sentence was increased as
  agreed to. . . .                                                  a direct result. We therefore conclude that plain error
  I think this is totally pertinent. This paragraph that I’ve       occurred.
  read, the Court has read here that has been signed by the
  defendant and his lawyer and the government’s lawyer,
Nos. 02-1659/1836      United States v. Swanberg et al.      11    12   United States v. Swanberg et al.    Nos. 02-1659/1836

D. Tuimala’s sentence enhancement for a leadership                 district court should resentence Tuimala without applying the
   role                                                            leadership enhancement.
   The district court imposed a two-level sentence                                    II. CONCLUSION
enhancement, pursuant to United States Sentencing
Guidelines § 3B1.1, for Tuimala’s alleged leadership role in         For all of the reasons set forth above, we AFFIRM
the offense. “The proper standard of review to employ in           Swanberg’s sentence but VACATE Tuimala’s sentence and
evaluating the district court’s imposition of this enhancement     REMAND his case for the limited purpose of resentencing
is subject to some debate.” United States v. Henley, 360 F.3d      without the sentence enhancement.
509, 516 (6th Cir. 2004). Prior to 2001, this court “reviewed
a district court’s factual findings for clear error and legal
conclusions de novo.” United States v. Solorio, 337 F.3d 580,
600 (6th Cir.2003). Then, in Buford v. United States, 532
U.S. 59, 66 (2001), the Supreme Court held that a district
court’s application of the guidelines’ section there under
consideration should be reviewed deferentially rather than de
novo “in light of the fact-bound nature of the legal decision.”
   This court has not yet decided on the appropriate standard
of review of a § 3B1.1 enhancement in any post-Buford case.
See Henley, 360 F.3d at 516 (declining to decide whether the
enhancement should be reviewed deferentially or de novo
because the court would have affirmed the district court under
either standard). In the present case, we again have no need
to decide which standard of review applies because the
district court’s decision was incorrect under either standard.
  This court has held that a sentence enhancement is
appropriate under § 3B1.1 where a defendant has “exerted
control over at least one individual within a criminal
organization,” but not where the defendant has “merely
exercised control over the property, assets or activities of the
enterprise.” United States v. Gort-DiDonato, 109 F.3d 318,
321 (6th Cir. 1997). In the present case, the record at most
demonstrates only that Tuimala sold drugs to multiple
individuals. He had no control over what they did with the
drugs after the purchases. This does not meet the degree of
control required by Gort-DiDonato. On remand, therefore, the
