           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    United States v. Dunbar                      No. 02-1766
        ELECTRONIC CITATION: 2004 FED App. 0041P (6th Cir.)
                    File Name: 04a0041p.06                                 ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
                                                                           Suzanna Kostovski, Detroit, Michigan, for Appellant. Wayne
                                                                           F. Pratt, ASSISTANT UNITED STATES ATTORNEY,
UNITED STATES COURT OF APPEALS                                             Detroit, Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT                                                        _________________
                    _________________
                                                                                                   OPINION
 UNITED STATES OF AMERICA , X                                                                  _________________
            Plaintiff-Appellee, -                                            KAREN NELSON MOORE, Circuit Judge. Defendant-
                                   -
                                   -  No. 02-1766                          Appellant, Damon Dunbar (“Dunbar”), appeals his conviction
           v.                      -                                       and sentence. Dunbar was convicted by jury of one count of
                                    >                                      distribution of cocaine base and two counts of distribution of
                                   ,                                       heroin. The district court sentenced Dunbar to three
 DAMON DUNBAR,                     -
         Defendant-Appellant. -                                            concurrent 151-month terms of imprisonment. Dunbar raises
                                                                           two arguments on appeal. First, Dunbar argues that his
                                  N                                        conviction should be vacated and his indictment dismissed
      Appeal from the United States District Court                         because the delay between his indictment and his trial
     for the Eastern District of Michigan at Detroit.                      violated the Speedy Trial Act. Second, if his conviction is
   No. 00-80778—Denise Page Hood, District Judge.                          upheld, Dunbar argues that his sentence should be vacated
                                                                           because the district court erred by including fifty-six grams of
                   Argued: October 30, 2003                                cocaine base in the calculation of his sentence based upon
                                                                           evidence that was not sufficiently reliable.
             Decided and Filed: February 9, 2004
                                                                             For the following reasons, we AFFIRM Dunbar’s
        Before: MOORE and ROGERS, Circuit Judges;                          conviction and sentence.
              FORESTER, Chief District Judge.*
                                                                                               I. BACKGROUND
                       _________________
                                                                           A. Offense Conduct
                            COUNSEL
                                                                              An investigation by a task force comprised of federal, state,
ARGUED: Suzanna Kostovski, Detroit, Michigan, for                          and local law enforcement officers led to Dunbar’s arrest.
Appellant. Wayne F. Pratt, ASSISTANT UNITED STATES                         The task force received a tip from a confidential informant
                                                                           (“CI”) that Dunbar was engaging in illegal drug activity,
                                                                           which led the task force to investigate Dunbar’s drug
                                                                           transactions. During the investigation, undercover agents
    *
      The Honorable Karl S. Forester, Chief United States District Judge   made three controlled purchases. On May 19, 1999, Dunbar
for the Eastern District of Kentucky, sitting by designation.

                                   1
No. 02-1766                     United States v. Dunbar       3    4     United States v. Dunbar                       No. 02-1766

sold 12.1 grams of crack cocaine to an undercover DEA              Trial Act. The proposed order indicates that the parties
agent. At trial, the government produced evidence that             agreed to use this period to prepare pretrial motions and to
Dunbar possessed additional crack cocaine during this              prepare for trial, and it also indicates that the defendant was
transaction, and that a conservative estimate of this additional   going to use this period to decide whether to plead guilty.
crack cocaine was two ounces. On June 8, 1999, Dunbar sold         The proposed order states that the parties stipulated that the
1.1 grams of heroin to an undercover police officer. Then, on      ends-of-justice within the meaning of 18 U.S.C. § 3161(h)(8)
June 15, 1999, Dunbar sold twelve grams of heroin to an            would be served by the continuance due to the complexity of
undercover police officer.        Dunbar was arrested on           the case. As a result of clerical error by the parties, this order
November 3, 2000.                                                  was never presented to the district court.
B. Speedy Trial Act Background                                       On November 30, 2000, a magistrate judge held a pretrial
                                                                   conference and entered a summary order, noting that the
  On October 26, 2000, a one-count criminal complaint was          parties stipulated to extend the time for filing motions until
sworn in the Eastern District of Michigan, charging Dunbar         January 5, 2001. This summary order was approved by the
with distribution of heroin, in violation of 21 U.S.C.             district judge.
§ 841(a)(1). The criminal complaint states that the offense
occurred on or about June 15, 1999, and charges Dunbar for           Although it is not reflected at all on the district court’s
his conduct during the third controlled buy. On November 3,        docket sheet, the parties agree that they appeared before a
2000, the complaint was unsealed, and Dunbar appeared              magistrate judge on March 14, 2001, regarding a potential
before a magistrate judge; the magistrate judge denied Dunbar      conflict of interest issue involving Dunbar’s retained counsel,
bond and ordered him detained. On November 9, 2000, a              Lusby. The potential conflict of interest issue arose during
three-count indictment was returned against Dunbar in the          pretrial discussions between the government and Lusby about
Eastern District of Michigan. Count One of the indictment          the possibility of a plea agreement. The government’s plea
charges Dunbar with distribution of five grams or more of a        offer was contingent upon the defendant providing
mixture or substance containing cocaine base (crack cocaine)       “substantial assistance” in the form of information regarding
on or about May 19, 1999, in violation of § 841(a)(1),             other individuals. During these discussions, Lusby indicated
(b)(1)(B)(ii), and (b)(1)(B)(iii). Counts Two and Three of the     that he might have a potential conflict of interest between
indictment charge Dunbar with distribution of heroin, in           Dunbar and his other clients, who might be the subject of
violation of § 841(a)(1) and (b)(1)(C), on or about June 8,        Dunbar’s assistance. The government and Lusby agreed that
1999, and on or about June 15, 1999, respectively.                 Dunbar should consider requesting appointed counsel for the
                                                                   purpose of advising Dunbar about the potential conflict of
   On November 13, 2000, Dunbar made his initial                   interest issue. In an appearance before a magistrate judge, on
appearance on the charges contained in the indictment and          May 14, 2001, Dunbar requested more time to confer with
entered a plea of not guilty. Dunbar remained in detention         Lusby before requesting appointed counsel. In another
following his plea. After Dunbar was arraigned, his retained       appearance before the magistrate judge, on May 15, 2001,
counsel, Charles D. Lusby (“Lusby”), and the government            Dunbar again failed to request appointed counsel, and the
signed an undated proposed order for a continuance,                matter was adjourned so that the government could file a
stipulating that a period from November 13, 2000 to January        motion to resolve the potential conflict of interest issue. The
5, 2001 would be excludable delay for purposes of the Speedy       government filed its motion on May 16, 2001. On May 22,
No. 02-1766                     United States v. Dunbar        5    6     United States v. Dunbar                   No. 02-1766

2001, Lusby filed a response to the government’s motion to                                                   though, and that
resolve the potential conflict of interest issue and also filed a                                            is the speedy
motion to withdraw as Dunbar’s counsel. On May 24, 2001,                                                     trial.
the district court granted Lusby’s motion to withdraw as
defense counsel; on May 25, 2001, the district court                    THE COURT:      Okay.
appointed the Federal Defender’s Office to represent Dunbar,
which mooted the government’s motion to resolve the conflict            MR. MURPHY: Because we have 79 days of
of interest issue. Eventually, Timothy Murphy (“Murphy”)                            nonexcludable de la y by m y
was appointed by the Federal Defender’s Office as Lusby’s                           computation.
replacement.
                                                                        THE COURT:      Well, I think we’re at, on the speedy
   On May 24, 2001, Dunbar personally made a motion to                                  trial clock, of 84 days.
review his detention. On May 30, 2001, the district court held
a hearing on Dunbar’s motion to review his detention and also           MR. MURPHY: Well, I have 79, but that was I don’t
considered whether Dunbar’s right to release under § 3164 of                        know since when. But, we have over
the Speedy Trial Act had been violated because Dunbar had                           70, that’s the issue.
been detained for more than ninety days and the docket sheet
did not reflect any periods of excludable delay. The district                           And that, of course, gives rise to —
court was unable to resolve the motion on May 30, 2001 and                              well, under those circumstances, I
scheduled another hearing for June 4, 2001.                                             would move to dismiss.

   The dialogue between the parties and the court during the                            Now, I’ve advised Mr. Dunbar that the
June 4, 2001 hearing is important because Dunbar’s ability to                           Government is very well — that the
obtain a dismissal of the indictment for a violation of his                             Court has discretion to dismiss with or
rights under § 3161 of Speedy Trial Act depends upon                                    without prejudice.       Under these
whether he made a motion to dismiss the indictment for                                  circumstances, I would make no
violation of the seventy-day rule. At the outset, the parties                           prediction, but I would certainly share
and the court considered the purposes of the June 4, 2001                               my opinions with Mr. Dunbar about
hearing to be determining whether § 3164 had been violated                              which was more likely. And that if
because Dunbar had been detained for more than ninety days                              the Court chose to dismiss without
and reviewing Dunbar’s detention. After discussing whether                              prejudice, the Government would
Dunbar should be released pursuant to the ninety-day rule for                           likely seek a delay to reindict so that
§ 3164, Dunbar’s counsel raised the issue of whether the                                would be an exercise in futility.
indictment should be dismissed pursuant to the seventy-day                              We haven’t fully discussed that issue.
rule for § 3161. The following exchange took place between
Dunbar’s counsel and the Court:                                         THE COURT:      Okay.
  MR. MURPHY [Dunbar’s counsel]: T h e r e i s a n                  J.A. at 65 (emphases added). The court then discussed
                                 additional issue,                  whether various periods constituted excludable delay pursuant
No. 02-1766                           United States v. Dunbar              7    8      United States v. Dunbar                    No. 02-1766

§ 3161(h) of the Speedy Trial Act. J.A. at 70-79. The court                                         has not been violated to date, meaning
found that up to that point, only eighty-four days of non-                                          that the Defendant has not been detained
excludable delay had passed, therefore, the ninety-day pretrial                                     solely because he is awaiting trial in
detention rule of § 3164 had not been violated.                                                     violation of 18 USC Section 3164(a).
  In reaching its conclusion that only eighty-four days of                                          ...
non-excludable delay had passed, the district court
determined that the Speedy Trial clock began to run on                                                And so, if you are making a motion to
November 9, 2000, the day that Dunbar was indicted, but that                                        dismiss based on the speedy trial clock
November 9, 2000 was excludable. The district court found                                           having run, that’s denied. Your motion
that three non-excludable days had passed from November                                             for an evidentiary hearing is also at this
10, 2000 through November 12, 2000. The district court then                                         time denied without prejudice.
concluded that November 13, 2000, the day Dunbar was
arraigned, was excludable. The district court excluded a                        J.A. at 78-79. Following the June 4, 2001 hearing, the district
thirty-day period in January and February 2001 for plea                         court issued a written order, dated June 8, 2001, recording its
negotiations. The district court then concluded that                            previous rulings on Dunbar’s oral motions. The order
March 14, 2001 through May 24, 2001 was excludable due to                       provides in pertinent part:
the potential conflict of interest issue. The district stopped
counting the days as of May 24, 2001, but we note that the                          IT IS ORDERED that [Dunbar’s] oral Motion for
period between May 25, 2001 and June 4, 2001 should have                            Release on Bond pursuant to 18 U.S.C. § 3164 is
been considered excludable delay pursuant to § 3161(h)(1)(F)                        DENIED, the Court finding that § 3164 has not been
because Dunbar made an oral motion to review his bond at                            violated as more fully set forth on the record.
the May 24, 2001 hearing and the motion was not disposed of
until June 4, 2001.1                                                                IT IS FURTHER ORDERED that [Dunbar’s] oral
                                                                                    Motion to Dismiss for a violation of the Speedy Trial Act
  After making its findings regarding excludable delay, the                         is DENIED.
district court made the following oral ruling:
                                                                                Docket No. 32. At the June 4, 2001 hearing and again in its
  THE COURT:             And therefore, Section 3164 has not                    June 8, 2001 written order, the district court also denied
                       been violated. At least the Court finds it               Dunbar’s motion for an evidentiary hearing. Nevertheless, at
                                                                                the June 4, 2001 hearing, the district court ordered Dunbar
                                                                                released pursuant to a $10,000 unsecured bond.
    1
      It is not clear whe ther the d istrict court found additional days          Following several adjournments and continuances, voir dire
excludable, beyond those it explicitly mentioned during its findings            for Dunbar’s trial began on November 1, 2001. On
imme diately preceding its oral ruling . By our calculations, subtracting the   November 6, 2001, the jury found Dunbar guilty of all three
days the district court explicitly found excludable, m ore tha n ninety days    counts of the indictment. On June 6, 2002, the district court
passed between Dunbar’s indictment and the June 4, 2001 hearing.
However, because the district court released Dunbar on bond , and because       sentenced Dunbar to three concurrent terms of 151 months of
on appeal we find additional days excludable, this calculation error was        imprisonment; concurrent terms of eight years of supervised
harmless.
No. 02-1766                      United States v. Dunbar        9    10   United States v. Dunbar                     No. 02-1766

release on Count One, six years of supervised release on             on November 1, 2001, with the commencement of voir dire.
Count Two, and six years of supervised release on Count              See J.A. at 357-65.
Three.
                                                                        Based upon the foregoing analysis, the district court
   On March 1, 2002, defense counsel made a motion for               calculated that only forty non-excludable days passed
reconsideration of Dunbar’s oral motion to dismiss his               between Dunbar’s indictment and the commencement of his
indictment due to violation of § 3161 of the Speedy Trial Act.       trial. The court then explicitly ruled that there was no
At a hearing on Dunbar’s motion for reconsideration, on              violation of the seventy-day rule of § 3161. On March 23,
March 21, 2002, the district judge re-analyzed the period            2002, the district court entered an order denying Dunbar’s
between Dunbar’s indictment and the commencement of his              motion for reconsideration.
trial. The district court again concluded that the Speedy Trial
clock began to run on November 9, 2000, the day Dunbar was             On June 11, 2002, Dunbar timely appealed his jury
indicted, but that November 9, 2000 was excludable. The              conviction of November 6, 2001, the judgment of sentence of
district court found that three non-excludable days had passed       June 6, 2002, and the denial by the district court on March 23,
from November 10, 2000 through November 12, 2000. The                2002 of his motion to dismiss the indictment due to a
district court again concluded that November 13, 2000, the           violation of the Speedy Trial Act.
day Dunbar was arraigned, was excludable. At this hearing,
the district court found an additional fifty-three days were         C. Drug Quantity Background
excludable due to the proposed order signed by the parties.
The district court found that fifteen non-excludable days had           At the time of sentencing, the district judge adopted the
passed from January 6, 2001 through January 20, 2001. The            guidelines applications contained in the Presentence Report
district court found that the parties had engaged in plea            (“PSR”). Accordingly, Dunbar’s total offense level was set
negotiations from January 21, 2001 through February 19,              at thirty-two and Dunbar was sentenced to three concurrent
2001, and thus these thirty days were excludable. The district       151-month terms of imprisonment. In the PSR, Dunbar’s
court noted that some of the time between February 20, 2001          offense level was determined based upon sixty-eight grams of
and March 14, 2001 could potentially be excludable, but that         crack cocaine and thirteen grams of heroin. Therefore,
due to its other calculations, it was not necessary for it to        Dunbar’s offense level was determined based upon the twelve
make this determination in order to deny Dunbar’s motion.            grams of crack cocaine that Dunbar sold during the May 19,
The district court then found that March 14, 2001 through            1999 transaction, the 1.1 grams of heroin that Dunbar sold
May 24, 2001 was excludable due to the potential conflict of         during the June 8, 1999 transaction, the twelve grams of
interest issue. The district court also found that all of the time   heroin that Dunbar sold during the June 15, 1999 transaction,
from May 24, 2001 through November 1, 2001 was                       and the additional fifty-six grams of crack cocaine, which was
excludable due to the pendency of Dunbar’s motion to review          “believed to be a conservative estimate of what the defendant
his detention, continuances and adjournments that Dunbar             possessed during the distribution of 12 grams [of crack
either requested or consented to, and an adjournment from            cocaine] on May 19, 1999.” J.A. at 394-95 (PSR ¶¶ 14, 15,
August 6, 2001 through September 26, 2001 due to the                 16, 19). At Dunbar’s sentencing hearing on March 21, 2002,
unavailability of an attorney and a witness. Finally, the            the district court adjusted the drug amount and determined
district court concluded that the Speedy Trial clock stopped         that Dunbar should only be held responsible for sixty grams
                                                                     of crack cocaine, which represents the twelve grams that
No. 02-1766                    United States v. Dunbar      11    12    United States v. Dunbar                      No. 02-1766

Dunbar actually sold during the May 19, 1999 transaction and      bond, the district court determined that eighty-four non-
an additional forty-eight grams, which is a more conservative     excludable days had passed since Dunbar was indicted, and
estimate of the amount the DEA agent testified that he            that the district court was bound to abide by this ruling under
observed during the transaction. This adjustment in the drug      the law-of-the-case doctrine. Second, Dunbar argues that
quantity, however, did not affect Dunbar’s offense level.         even if the district court was permitted to revisit the issue, the
                                                                  period covered by the proposed order is not excludable as an
   At Dunbar’s jury trial, David Livingston, the undercover       ends-of-justice continuance, and therefore, eighty-four non-
DEA agent who was present during the May 19, 1999                 excludable days passed before Dunbar’s trial commenced.
transaction, testified that during the transaction Dunbar         Additionally, Dunbar argues that the court should dismiss the
showed him four to five, half-ounce packages of crack             indictment with prejudice because over a year has passed
cocaine, in addition to the half-ounce package the DEA agent      since Dunbar was indicted, because the government’s key
purchased from Dunbar. These additional packages were not         witness has been killed thereby depriving Dunbar of the
recovered. Livingston further testified that while a full half-   opportunity to cross-examine, and because the purpose of the
ounce package should weigh fourteen grams, dealers typically      Act would be thwarted if courts were not required to adjust
sell half-ounce packages that actually weigh between twelve       their procedures to comply with the Act.
and thirteen grams to save product and to avoid stiffer
sentences. At the sentencing hearing, forty-eight grams of          The government argues that Dunbar waived his ability to
crack cocaine, which represents the weight of four, twelve-       argue that his rights were violated under § 3161 of the Speedy
gram bags, was attributed to Dunbar to account for the            Trial Act, on the theory that Dunbar failed to make a motion
additional unrecovered crack cocaine.                             to dismiss his indictment before his trial commenced. The
                                                                  government further argues, asserting various theories, that
                      II. ANALYSIS                                fewer than seventy non-excludable days passed between the
                                                                  day Dunbar was indicted and the day his trial commenced.
A. Speedy Trial Act                                               The government contends that Dunbar should be estopped
                                                                  from denying that the period covered by the proposed order
  On appeal, we review de novo the district court’s               is excludable delay because he consented to the delay,
application of the Speedy Trial Act. United States v. Salgado,    because the period should be excluded as “other proceedings”
250 F.3d 438, 453 (6th Cir.), cert. denied, 534 U.S. 936          involving the defendant, and because the law-of-the-case
(2001). However, we review for abuse of discretion the            doctrine is inapplicable, as this doctrine does not apply to
district court’s decision to grant an ends-of-justice             interlocutory decisions of the district court. The government
continuance pursuant to § 3161(h)(8). United States v.            further asserts that any dismissal for violation of § 3161
Howard, 218 F.3d 556, 563 (6th Cir. 2000).                        would have been without prejudice and that the government
                                                                  would have reindicted Dunbar; therefore, according to the
  On appeal, Dunbar argues that his indictment should have        government, the failure to dismiss was harmless.
been dismissed under § 3161 of the Speedy Trial Act because
eighty-four non-excludable days passed between the day he           The Speedy Trial Act protects defendants’ and the public’s
was indicted and the day his trial commenced. Dunbar bases        interest in timely criminal trials. United States v. Noone, 913
his argument on two different rationales. First, Dunbar           F.2d 20, 28 (1st Cir. 1990), cert. denied, 500 U.S. 906 (1991).
contends that at the June 4, 2001 hearing on his motion for       Section § 3161(c)(1) of the Act requires that a defendant’s
No. 02-1766                    United States v. Dunbar     13    14       United States v. Dunbar                            No. 02-1766

trial commence within seventy days of the date he was            to argue that his indictment should be dismissed due to a
indicted or the date he first appeared in court, whichever is    violation of Speedy Trial Act, on the theory that Dunbar
later. United States v. Tinson, 23 F.3d 1010, 1012 (6th Cir.     failed to make a motion to dismiss his indictment before the
1994). Section 3161(c)(1) states:                                commencement of his trial.
  In any case in which a plea of not guilty is entered, the         Section 3162(a)(2) “requires that the defendant bring a
  trial of a defendant charged in an information or              motion for dismissal under the Speedy Trial Act prior to
  indictment with the commission of an offense shall             trial.” United States v. White, 985 F.2d 271, 274 (6th Cir.
  commence within seventy days from the filing date (and         1993). This court has held that a defendant waives the right
  making public) of the information or indictment, or from       to move for dismissal for a violation of § 3161 if he does not
  the date the defendant has appeared before a judicial          raise the issue until appeal. Id. at 274-75.
  officer of the court in which such charge is pending,
  whichever date last occurs. If a defendant consents in           During the May 24, 2001 hearing, Dunbar moved for
  writing to be tried before a magistrate judge on a             reconsideration of his pretrial detention due to a possible
  complaint, the trial shall commence within seventy days        violation of his rights under § 3164.2 The district court
  from the date of such consent.                                 scheduled a hearing to review Dunbar’s detention on May 30,
                                                                 2001, but was unable to resolve the § 3164 issue at the May
18 U.S.C. § 3161(c)(1). The Act provides the flexibility         30, 2001 hearing, and continued the hearing to June 4, 2001.
necessary to conduct fair criminal trials by excluding days      At the June 4, 2001 hearing, the district court calculated that
from the seventy-day Speedy Trial clock for various pretrial     eighty-four non-excludable days had passed since Dunbar’s
proceedings. See 18 U.S.C. §§ 3161(h)(1)-(9); United States      indictment and accordingly ruled § 3164 had not been
v. Mentz, 840 F.2d 315, 325 (6th Cir. 1988). If, however,        violated. Because the district court found that more than
more than seventy non-excludable days pass before the            seventy non-excludable days had passed since Dunbar’s
commencement of the trial, the Act mandates dismissal of the     indictment, defense counsel indicated that he “would move to
indictment upon motion by the defendant. 18 U.S.C.               dismiss.” J.A. at 65. Defense counsel then stated that “if the
§ 3162(a)(2). The trial court has discretion to decide whether   Court chose to dismiss without prejudice, the Government
to dismiss the indictment with or without prejudice, but in      would likely seek a delay to reindict so that would be an
making that decision, the trial court must weigh various
statutorily prescribed factors. See id.
                                                                      2
                                                                        Section 3164 provides that a defendant, who is detained so lely
  In the present case, Dunbar was indicted on November 9,        because he is awaiting trial, must be released o n bond if he is detained for
2000, and his trial did not commence until November 1, 2001,     more than nine ty non-excludable days prior to the commencement of trial.
which was 357 days later. Thus, Dunbar “has presented a          18 U.S.C. § 3164 . While § 3161 (c)(1) ensures that a defendant is brought
prima facie case of a Speedy Trial Act violation.” Mentz, 840    to trial promptly and the seventy-day pe riod begins to run from the later
                                                                 of the defendant’s appearance or indictment, § 3164 ensures that a
F.2d at 326. The parties agree that much of this time is         defendant is not detained too long prior to trial and begins to run from the
excludable under § 3161(h), but Dunbar argues that eighty-       defendant’s first day of confinement. See 18 U.S.C. §§ 3161(c)(1) and
four non-excludable days passed before his trial commenced.      3164(b ). Despite the d istrict court’s finding that § 3164 had not been
The government, however, contends that, regardless of how        violated, it released Dunbar on a $10,000 unsecured bond on June 4,
many non-excludable days passed, Dunbar waived his ability       200 1. Dunbar do es not appeal the district court’s ruling that § 3164 was
                                                                 not violated.
No. 02-1766                          United States v. Dunbar           15    16   United States v. Dunbar                      No. 02-1766

exercise in futility.” J.A. at 65. While Dunbar’s motion to                  doctrine is more flexibly applied to reconsideration of earlier
dismiss could have been much clearer, the district court                     decisions by the same court or a coordinate court. Gillig v.
understood that Dunbar was in fact making a motion to                        Advanced Cardiovascular Sys., 67 F.3d 586, 589 (6th Cir.
dismiss, because the district judge stated, “if you are making               1995). “At the trial court level, the doctrine of the law of the
a motion to dismiss based on the speedy trial clock having                   case is little more than a management practice to permit
run, that’s denied.” J.A. at 79. Furthermore, in a written                   logical progression toward judgment. Prejudgment orders
order dated June 8, 2001, the district court explicitly ruled                remain interlocutory and can be reconsidered at any time.”
“that [Dunbar’s] oral Motion to Dismiss for a violation of the               Id. (quoting 1b James Wm. Moore et al., Moore’s Federal
Speedy Trial Act is DENIED.” Docket No. 32. Because                          Practice ¶ 0.401 (2d ed. 1994)). The law-of-the-case doctrine
Dunbar made a motion to dismiss his indictment at the June                   does not remove a district court’s jurisdiction to reconsider,
4, 2001 hearing, prior to the commencement of his trial,                     or otherwise preclude a district court from reconsidering, an
Dunbar has not waived his right to argue that his indictment                 issue previously decided in the case. Id. at 590. We have
should have been dismissed due to a violation of § 3161.                     previously refused to apply the law-of-the-case doctrine to
                                                                             preclude review of various prejudgment rulings. See, e.g.,
  Although Dunbar did not waive his right to argue that his                  Polec v. Northwest Airlines, Inc. (In re Air Crash Disaster),
indictment should have been dismissed due to a violation of                  86 F.3d 498, 517-18 (6th Cir. 1996) (reconsidering rulings
§ 3161, at a post-trial hearing on March 21, 2002, the district              about discovery); Gillig, 67 F.3d at 590 (reconsidering
court denied his motion for reconsideration of his oral motion               preclusive effect of liability release given to employer by
to dismiss his indictment because the motion for                             plaintiff).
reconsideration was untimely and also on the merits.3 At the
March 21, 2002 hearing, the district court found that only                     In the present case, we do not consider the law-of-the-case
forty non-excludable days passed between the day Dunbar                      doctrine to have precluded the district court from
was indicted and the day his trial commenced, and thus the                   reconsidering its June 4, 2001 finding that eighty-four non-
court concluded that § 3161 had not been violated. On                        excludable days had passed. First, the June 4, 2001 finding
appeal, Dunbar contends that the district court erred by                     was made in the context of the court’s decision on Dunbar’s
recalculating the number of non-excludable days that passed                  motion to reconsider his detention pursuant to the ninety-day
before his trial commenced, on the theory that the court was                 rule contained in § 3164; therefore, once the district court
bound by the law-of-the-case doctrine to its June 4, 2001                    found that fewer than ninety non-excludable days had passed,
ruling that eighty-four non-excludable days had passed.                      there was no reason for it to decide whether further days were
                                                                             excludable. Second, the district court’s finding regarding the
  The law-of-the-case doctrine is rigidly applied to enforce a               number of non-excludable days is an interlocutory ruling, and
lower court’s obedience to a higher court; however, the                      thus the court may depart from it for good reason. See Gillig,
                                                                             67 F.3d at 589-90. Third, during the March 21, 2002 hearing,
                                                                             the district court had good reason to depart from its earlier
    3                                                                        ruling because Dunbar explicitly argued that the seventy-day
      W hen the district judge stated that Du nba r’s motion to reconsider
was untimely, defense counsel stated that she was actually seeking a         rule contained in § 3161 had been violated and that the
ruling on the previous motion to dismiss because she believed that the       indictment should have been dismissed; therefore, the passage
district court never actually ruled on that motion. The district court’s     of time might invalidate his jury conviction. Finally,
docket entry No. 32, however, reflects that the court did rule on the
motion to d ismiss.                                                          regardless of the law-of-the-case doctrine, we may recalculate
No. 02-1766                     United States v. Dunbar      17    18   United States v. Dunbar                     No. 02-1766

the number of non-excludable days on appeal. United States         conflict of interest issue was not resolved until the district
v. Jenkins, 92 F.3d 430, 439 (6th Cir. 1996), cert. denied, 520    court granted Lusby’s motion to withdraw as defense counsel
U.S. 1170 (1997).                                                  at a hearing on May 24, 2001. The period from May 16,
                                                                   2001, the day the government filed its motion to resolve the
   Dunbar was indicted on November 9, 2000. Although the           conflict of interest, until May 24, 2001, the day the district
Speedy Trial clock began to run on November 9, 2000                court held and concluded its hearing on the motion, is
because Dunbar was in detention on the criminal complaint at       excludable under § 3161(h)(1)(F). See Henderson v. United
that time, the day of indictment is excluded as “other             States, 476 U.S. 321, 331-32 (1986); Mentz, 840 F.2d at 326.
proceedings” pursuant to § 3161(h)(1). Mentz, 840 F.2d at          The Supreme Court has distinguished between motions that
326.     Dunbar was arraigned on the indictment on                 require a hearing and motions that do not require a hearing.
November 13, 2000, and that date is also excluded as “other        For motions that require a hearing, § 3161(h)(1) provides for
proceedings” pursuant to § 3161(h)(1). Id. The district court      the automatic exclusion of “the entire period between the
found, and Dunbar does not dispute, that the parties were          filing of the motion and the conclusion of the hearing” on that
engaged in plea negotiations for thirty days, from January 21,     motion. Henderson, 476 U.S. at 329. Therefore, the entire
2001 to February 19, 2001. We have held that plea                  period between the filing of the motion on May 16, 2001,
negotiations may be excluded as “other proceedings” pursuant       until the district court held and concluded its hearing on that
to § 3161(h)(1). United States v. Bowers, 834 F.2d 607, 609-       motion on May 24, 2001, is automatically excluded under
10 (6th Cir. 1987).                                                § 3161(h)(1)(F).
  The district court also found, and Dunbar does not dispute,        At the May 24, 2001 hearing, Dunbar personally made a
that the potential conflict of interest issue was brought to the   motion to reconsider his detention, and the court set a hearing
court’s attention in a hearing before a magistrate judge on        on that motion for May 30, 2001. The district court was
March 14, 2001, at which time the government expected              unable to resolve that motion on May 30, 2001, and continued
Dunbar to request appointed counsel for the purpose of             the hearing until June 4, 2001. At the June 4, 2001 hearing,
advising him during the plea negotiations. Dunbar did not          the district court re-analyzed the period between the date
request appointed counsel at the March 14, 2001 appearance,        Dunbar was indicted and the date his trial commenced, and
nor did Dunbar request appointed counsel at subsequent             the court concluded that only eighty-four days of non-
appearances before a magistrate judge on May 14, 2001 and          excludable delay had passed. Nevertheless, the district court
May 15, 2001. Although no formal motion was made before            ordered that Dunbar be released pursuant to a $10,000
or at the March 14, 2001 appearance, we hold that March 14,        unsecured bond. We hold that the period from May 24, 2001
2001 through May 15, 2001 may be excluded under                    through June 4, 2001 is automatically excludable pursuant to
3161(h)(1) as “other proceedings concerning the defendant.”        § 3161(h)(1)(F), as it constitutes delay between the filing of
As the First Circuit has sensibly pointed out, a defendant         a motion and the conclusion of a hearing on that motion. See
should not be able to stall in obtaining appropriate counsel in    Henderson, 476 U.S. at 331-32; Mentz, 840 F.2d at 326.
order to obtain a dismissal for a violation of § 3161(c)(1). See
Noone, 913 F.2d at 28.                                               At the March 21, 2002 hearing, the district court found that
                                                                   the period between November 13, 2000 and January 5, 2001
  The government finally made a motion to resolve the              was excludable delay because the parties had signed a
potential conflict of interest issue on May 16, 2001. The          proposed order stipulating that the period would be excluded
No. 02-1766                     United States v. Dunbar      19    20       United States v. Dunbar                             No. 02-1766

as an ends-of-justice continuance pursuant to § 3161(h)(8).        justice, rather than merely rationalizes a delay after the fact.
Although the proposed order was not timely presented to the        United States v. Richmond, 735 F.2d 208, 215-16 (6th Cir.
district court, the court retroactively found that it would have   1984).4
granted the motion, and thus determined that the time could
be excluded under § 3161(h)(8). On appeal, Dunbar argues              The government contends that the time period covered by
that the district court did not have authority to grant this       the stipulation may be excluded pursuant to § 3161(h)(1)
motion nunc pro tunc, as § 3161(h)(8) requires the district        because the stipulation indicates that the parties agreed to use
court to conduct a contemporaneous balancing test when             the period from November 13, 2000 to January 5, 2001 to
deciding whether to grant an ends-of-justice continuance.          prepare pretrial motions. While the government correctly
                                                                   points out that delay may retroactively be excluded under
  Section 3161(h)(8)(A) provides for the exclusion of:             § 3161(h)(1), we have previously held that time requested to
                                                                   prepare pretrial motions may not be excluded as “other
  Any period of delay resulting from a continuance granted         proceedings concerning the defendant.” See United States v.
  by any judge on his own motion or at the request of the          Moran, 998 F.2d 1368, 1370-71 (6th Cir. 1993). The
  defendant or his counsel or at the request of the attorney       government relied on United States v. Crawford, 982 F.2d
  for the Government, if the judge granted such                    199, 203 (6th Cir. 1993), which was decided six and one-half
  continuance on the basis of his findings that the ends of        months before Moran, for the proposition that time used to
  justice served by taking such action outweigh the best           prepare pretrial motions may be excluded pursuant to
  interest of the public and the defendant in a speedy trial.      § 3161(h)(1). In the context of analyzing the entire period
  No such period of delay resulting from a continuance             between the date the defendant was indicted and the date his
  granted by the court in accordance with this paragraph           trial commenced, Crawford states that a fifteen-day period
  shall be excludable under this subsection unless the court       that the defendant’s attorney requested in order to file pretrial
  sets forth, in the record of the case, either orally or in       motions may be excluded pursuant to § 3161(h)(1).
  writing, its reasons for finding that the ends of justice        Crawford, 982 F.2d at 203. This statement, however, was not
  served by the granting of such continuance outweigh the          necessary to the holding in Crawford because even after
  best interests of the public and the defendant in a speedy       excluding this fifteen-day period, we remanded the case with
  trial.                                                           instructions to vacate the defendant’s conviction and to
                                                                   dismiss his indictment due to a violation of § 3161(c)(1). See
Section 3161(h)(8)(B) requires the district court to consider      id. at 205. Moran, however, dealt exclusively with the issue
various factors when deciding whether to grant an ends-of-         of whether time used to prepare pretrial motions may be
justice continuance including, among other things, whether         excluded, and actually held explicitly that such time is not
failure to grant a continuance will make further proceedings       excludable because § 3161(h)(1)(F) only covers the time
impossible or result in a miscarriage of justice and whether
the case is so unusual or complex that it is unreasonable to
expect adequate preparation within the time limits established
by the Act. We have explained that this balancing must be               4
                                                                         Although a district court m ust conduct the balancing test prior to
done prior to granting the continuance, and that the purpose       granting a continuance on the basis of the ends-of-justice exception, the
of the contemporaneous balancing test is to ensure that the        district court may articulate its reasons after the fact. See United States
court actually grants the continuance to serve the ends of         v. Cian ciola 920 F.2d 129 5, 12 99-1 300 (6th C ir. 199 0), cert. denied, 501
                                                                   U.S. 1219 (1991).
No. 02-1766                           United States v. Dunbar           21     22    United States v. Dunbar                       No. 02-1766

period between the filing of a motion and the conclusion of a                  request without making substantial contemporaneous
hearing on that motion, thereby indicating that Congress did                   findings. In a prior unpublished opinion, we recounted the
not intend to exclude time used to prepare pretrial motions.                   district court’s findings as follows: “The government was
See Moran, 998 F.2d at 1370-71. Moran is controlling here.5                    opposed to the continuance; however, the court noted its
Therefore, the time period covered by the proposed order in                    concern for fairness to both sides. The government asked if
this case may not be excluded on the theory that time used to                  ‘this is a continuance being in the interests of justice under
prepare pretrial motions may be excluded pursuant to                           the statute?’ The court stated that it was, and continued the
§ 3161(h)(1).                                                                  trial until August 15, 1994.” United States v. Howard, No.
                                                                               94-6543,1997 WL 705077, at *2 (6th Cir. Nov. 6, 1997)
   The government also contends that the time period covered                   (citation omitted). On a subsequent appeal, we held:
by the proposed order may be excluded because Lusby’s                          “Because Howard requested this continuance, he is barred
signature on the stipulation indicates that the defendant                      from arguing that it was not in the interests of justice.”
agreed to the continuance, and thus the defendant should not                   Howard, 218 F.3d at 562. Howard indicates that when a
now be allowed to object to the delay. 6 In two published                      district court grants a continuance upon the defendant’s
opinions, we have made the sweeping statement that where a                     request, we may uphold that continuance in the absence of
defendant requested or at least consented to delay pursuant to                 substantial contemporaneous findings.
an ends-of-justice continuance, he is barred from arguing that
such continuance was not in the interest of justice. United                       Dunbar contends that this case is distinguishable because
States v. Howard, 218 F.3d 556, 562 (6th Cir. 2000); Monroe,                   the proposed order was never presented to the district court;
833 F.2d at 99. In Monroe, this statement was tempered by                      therefore, the district court did not make any
the fact that the district court made contemporaneous findings                 contemporaneous findings that would justify an ends-of-
that would justify an ends-of-justice continuance, and on                      justice continuance. Careful review of the record, however,
appeal the defendant challenged the propriety of those                         reveals that the district court did in fact grant a continuance,
findings. Monroe, 833 F.2d at 99. In Howard, however, the                      pursuant to a “stipulation” encompassing most of the time
district court granted a continuance upon the defendant’s                      covered by the parties’ proposed order. On November 30,
                                                                               2000, following the pretrial conference, the magistrate judge
                                                                               issued a summary order, specifying that the parties had
    5                                                                          “stipulated” that pretrial motions would be not be due until
      W e note that Moran did not invalidate United States v. Monroe, 833
F.2d 95, 99 (6th Cir. 1987), which held that time requested to file pretrial   January 5, 2001. The district court’s docket sheet indicates
motions may be excluded through an ends-of-justice continuance pursuant        that the district judge approved this summary order. Thus,
to § 31 61(h)(8). See Moran, 998 F.3d at 1372. Such a continuance,             although the district court did not state its reasons for granting
however, requires the district court to conduct the contemporaneous
balan cing test. Id.                                                           the continuance, it did grant the continuance to January 5,
                                                                               2001 pursuant to the parties’ “stipulation.” By signing the
    6
      The stipulation, which is in the form of a proposed order, pro vides:    proposed stipulated order and also stipulating to the
     The parties stipulate, and the Court finds, that this case is             continuance at the pretrial conference, Dunbar led the
     sufficiently complex due to the volume of discovery and the               prosecution to believe that he needed additional time to
     legal and factual issues presented that the filing of motions and         prepare for trial, and that he agreed that the continuance
     the trial of the ca se cannot be com pleted within the ordinary time      served the ends of justice. Moreover, by stipulating to the
     provided.
J.A. at 44.                                                                    continuance at the pretrial conference, Dunbar led the district
No. 02-1766                    United States v. Dunbar      23    24       United States v. Dunbar                           No. 02-1766

court to believe that he needed additional time to prepare        the delay covered by the ends-of-justice continuance granted
pretrial motions.                                                 at the pretrial conference, we conclude that at most fifty-six
                                                                  non-excludable days passed; therefore, the district court
  Although we cannot be certain that the “stipulation” entered    correctly refused to vacate Dunbar’s conviction and to
into at the pretrial conference was identical to the proposed     dismiss his indictment.7 This holding makes it unnecessary
order in all respects, we can assume that the proposed order      for us to determine whether the twenty-two days that passed
accurately reflects the parties’ intentions and the arguments     between February 20, 2001, when the government allegedly
advanced during the pretrial conference. Thus, we hold that       learned of Lusby’s potential conflict of interest, and March
the district court did in fact grant an ends-of-justice           14, 2001, when the potential conflict of interest was brought
continuance at the November 30, 2000 pretrial conference and      to the court’s attention, may be excluded as “other
that granting an ends-of-justice continuance in order to file     proceedings concerning the defendant” pursuant to
pretrial motions is permissible under Monroe; therefore, the      § 3161(h)(1).
district court did not abuse its discretion. Monroe, 833 F.2d
at 99. Moreover, having stipulated to the continuance,            B. Drug Quantity
Dunbar may not now argue that the continuance did not serve
the ends of justice. Howard, 218 F.3d at 562. We emphasize          This court reviews for clear error the district court’s
that we are not holding that delay may be excluded in the         determination of the quantity of drugs attributable to a
absence of any contemporaneous findings justifying an ends-       defendant for sentencing purposes. United States v. Baro,
of-justice continuance. Rather, we are holding that the facts
of this case — the written stipulation, the notation of a              7
“stipulation” on the pretrial order, and the fact that Dunbar           The Speedy Trial clock commenced on November 9, 2000, the day
did not complain about the delay until after the entire period    Dunbar was ind icted, b ut that date is excludab le. Three no n-excludab le
                                                                  days passed from Novem ber 10, 2000 through November 12, 2000.
covered by the stipulation had passed — indicate that the         November 13, 2000, the d ay Dunba r was arraigned, is excludab le. W e
district court granted an ends-of-justice continuance, and that   will assume that sixteen non-excludable days passed between November
Dunbar consented to that continuance. Therefore, we hold          14, 2000 and November 30, 2000. November 30, 2000 through
that the period from November 30, 2000 through January 5,         January 5, 20 01, the perio d covered by the “stipulation,” is exclud able
2001 may be excluded as an ends-of-justice continuance.           because the cou rt granted an ends-of-justice continuance. Fifteen non-
Because the district court did not issue this order until         excludable days passed from January 6, 2001 through January 20, 2001.
                                                                  January 21, 2 001 through Feb ruary 19, 2001, the period allotted to plea
November 30, 2000, we will assume that the period from            negotiations, is excludable. We assume, without deciding, that twenty-
November 14, 2000 through November 30, 2000 is not                two non-excludable days passed between February 20, 2001 through
excludable delay.                                                 March 13, 2 001. Ma rch 14, 20 01 through M ay 16, 200 1 is excludab le
                                                                  due to the Dunbar’s failure to obtain appropriate counsel, and May 16,
  Voir dire in Dunbar’s trial commenced on November 1,            2001 through M ay 24, 2001 is exclud able d ue to the government’s
                                                                  pending motio n to resolve the potential conflict of interest issue. May 24,
2001, and thus the Speedy Trial clock stopped running on that     2001 through June 4, 20 01 is excludable d ue to D unba r’s motion to
date. Mentz, 840 F.2d at 326 n.21. At the March 21, 2002          review his bond. Finally, all of the time between June 4, 200 1 and the
hearing, the district court found that all of the delay between   commencem ent of Dunba r’s trial on Novem ber 1, 2001 is excludable due
June 4, 2001 and the beginning of voir dire in Dunbar’s trial     to repeated requests for continuances and an adjournment due to the
was excludable pursuant to § 3161(h)(1) or (h)(8). Dunbar         unavailability of an attorney and a witness. Therefore, we conclude that
                                                                  at most fifty-six non-excludab le days passed between the day Dunbar was
does not contest these findings on appeal. After subtracting      indicted and the day his trial commenced.
No. 02-1766                     United States v. Dunbar       25    26   United States v. Dunbar                    No. 02-1766

15 F.3d 563, 568 (6th Cir.), cert. denied, 513 U.S. 912 (1994).        We hold that district court did not commit clear error by
At sentencing, the government must prove the quantity of            finding that the government had proven the drug quantity of
drugs involved by a preponderance of the evidence. Id. at           forty-eight grams by a preponderance of the evidence. The
569. “Where the amount is uncertain, the district court is          government provided testimony of an eye-witness to the
encouraged to ‘err on the side of caution’ and only hold the        transaction. Furthermore, this eye-witness was a DEA agent
defendant responsible for that quantity of drugs for which ‘the     who had experience with drugs sales and thus could reliably
defendant is more likely than not actually responsible.’” Id.       estimate the quantity of and type of drug based upon his
(quoting United States v. Walton, 908 F.2d 1289, 1302 (6th          observations. The cases relied upon by Dunbar for his
Cir. 1990)). The evidence used to prove the quantity of drugs       argument that the government’s evidence is not sufficient are
must “have a minimal level of reliability beyond mere               distinguishable because they involve estimates that a large
allegation.” Id. (quoting United States v. West, 948 F.2d           number of drug transactions occurred based solely on
1042, 1045 (6th Cir. 1991)).                                        extrapolations from small samples of actual drug transactions.
                                                                    In these cases, the courts found that the extrapolations were
   In this case, the district court did not commit clear error by   too speculative to meet the preponderance of the evidence
considering the forty-eight grams of crack cocaine that the         standard. See, e.g., United States v. Rivera-Maldonado, 194
defendant possessed during the May 19, 1999 transaction             F.3d 224, 230-33 (1st Cir. 1999) (drug quantity estimated
when determining Dunbar’s offense level. At trial, the              from two-hour composite tape showing a few transactions not
undercover DEA agent who was present during the May 19,             sufficient to establish quantity sold over course of five and
1999 transaction testified that during the transaction, he told     one-half month period by preponderance of the evidence);
Dunbar that the half-ounce package that he purchased felt a         Baro, 15 F.3d at 569 (pattern of kilogram purchases not
little light. The DEA agent testified that, in response, Dunbar     sufficient to establish quantity by preponderance of the
showed him four to five additional half-ounce packages. The         evidence). Conversely, in this case, the DEA agent actually
agent further testified that while half-ounce packages should       observed the packages, Dunbar indicated that the packages
weigh fourteen grams, they usually only weigh twelve to             were half-ounces of crack cocaine by offering them in lieu of
thirteen grams on the street. The PSR stated that a                 the half-ounce package that he sold to the DEA agent, and the
conservative estimate of the additional amount in the other         district court calculated the forty-eight-gram quantity using
packages would be fifty-six grams, and added to that the            the most conservative estimate possible.
twelve grams actually sold by Dunbar in order to reach a total
of sixty-eight grams, which warranted an offense level of                              III. CONCLUSION
thirty-two. At Dunbar’s sentencing hearing, on March 21,
2002, the district court found that forty-eight grams would in        Based on the foregoing analysis, we AFFIRM Dunbar’s
fact be the most conservative estimate, and added to that the       conviction and sentence.
twelve grams actually sold by the defendant in order to reach
a total of sixty grams. Despite this change in the drug
quantity, the total amount of sixty grams still warranted an
offense level of thirty-two. United States Sentencing
Guidelines § 2D1.1(c)(4).
