                                                                       RECOMMENDED FOR FULL-TEXT PUBLICATION
8    Logan v. United States                     No. 98-3839                 Pursuant to Sixth Circuit Rule 206
                                                                    ELECTRONIC CITATION: 2000 FED App. 0115P (6th Cir.)
                                                                                File Name: 00a0115p.06
the source may not be from an unrelated proceeding. Here,
the district court explicitly noted that the source of such
evidence was from a related trial over which it had presided.
That decision was quite correctly affirmed on direct appeal.    UNITED STATES COURT OF APPEALS
                   III. CONCLUSION                                            FOR THE SIXTH CIRCUIT
                                                                                _________________
  For all of the reasons set forth above, we AFFIRM the

                                                                                                 ;
judgment of the district court.

                                                                                                  
                                                                 KEITH R. LOGAN,
                                                                                                  
                                                                        Petitioner-Appellant,
                                                                                                  
                                                                                                  
                                                                                                     No. 98-3839
                                                                           v.
                                                                                                  
                                                                                                   >
                                                                 UNITED STATES OF AMERICA, 
                                                                        Respondent-Appellee. 
                                                                                                 1
                                                                      Appeal from the United States District Court
                                                                     for the Southern District of Ohio at Columbus.
                                                                   No. 94-01057—Sandra S. Beckwith, District Judge.
                                                                               Submitted: March 8, 2000
                                                                          Decided and Filed: March 31, 2000
                                                                  Before: WELLFORD, SILER, and GILMAN, Circuit
                                                                                    Judges.
                                                                                  _________________
                                                                                       COUNSEL
                                                                ON BRIEF: Keith E. Golden, GOLDEN & MEIZLISH,
                                                                Columbus, Ohio, for Appellant. Salvador A. Dominguez,
                                                                ASSISTANT UNITED STATES ATTORNEY, Columbus,
                                                                Ohio, for Appellee.




                                                                                            1
2     Logan v. United States                        No. 98-3839       No. 98-3839                       Logan v. United States        7

                     _________________                                of a sentence enhancement to rely on testimony given under
                                                                      oath at a separate, but related, trial.”
                         OPINION
                     _________________                                   A district court is indeed permitted to rely on testimony
                                                                      presented at a related proceeding, so long as there are
  RONALD LEE GILMAN, Circuit Judge. Keith Logan pled                  sufficient indicia of reliability. See United States v. Morales,
guilty in 1992 to participating in a drug conspiracy. On direct       994 F.2d 386, 389-90 (7th Cir. 1993); United States v. Ervin,
appeal, Logan challenged the district court’s decision to             931 F.2d 1440, 1441-42 (11th Cir. 1991); United States v.
enhance his offense level for possession of a firearm. In             Smith, 929 F.2d 1453, 1458-59 (10th Cir. 1991); United
support of the enhancement, the district court made findings          States v. Notrangelo, 909 F.2d 363, 364-66 (9th Cir. 1990);
of fact based upon testimony presented during the trial of            but see United States v. Jackson, 990 F.2d 251, 254 (6th Cir.
Logan’s co-conspirators. In 1994, a panel of this court               1993) (declaring in an unsupported statement, not essential to
affirmed Logan’s sentence, ruling that the firearm                    its holding, that “[t]o sentence a defendant based on facts
enhancement was proper.                                               established at someone else’s trial . . . violates due process”).
  Logan later filed a motion to modify his sentence pursuant             In Jackson, a panel of this court remanded the defendant’s
to 28 U.S.C. § 2255, arguing that a subsequent case, United           case for resentencing because it was “uncertain of how the
States v. McMeen, 49 F.3d 225 (6th Cir. 1995), changed the            district court made its factual findings . . . .” Jackson, 990
law regarding factual findings at sentencing, and that this           F.2d at 253. For the purposes of determining the quantity of
change established that the district court had erred when it          drugs sold by the defendant, the district court had divided the
applied the firearm enhancement. The district court denied            amount of cash seized in connection with his operation by the
Logan’s motion. For the reasons set forth below, we                   amount the defendant charged for his drugs, a figure referred
AFFIRM the judgment of the district court.                            to as the “drug unit value.” See id. at 253-54. This court
                                                                      remanded because “[t]he record does not indicate how the
                     I. BACKGROUND                                    district court determined the drug unit value . . . .” Id. at 254.
                                                                      The concurring opinion asserted that because a district court
  In 1992, Logan pled guilty to one count of conspiracy to            “has plenty of opportunity to acquire information on [drug
possess cocaine with intent to distribute, in violation of 21         unit values] throughout its consideration of its docket,” it
U.S.C. § 846. Prior to Logan’s sentencing hearing, the same           should not be necessary “to take evidence in every case on the
district judge assigned to Logan’s case presided over the trial       street value of cocaine within its jurisdiction.” Id. at 255
of his co-conspirators. During those proceedings, the district        (Boggs, J., concurring). In response, the majority wrote that
judge heard testimony that described the nature and extent of         “[t]o sentence a defendant based on facts established at
the conspiracy, including evidence that implicated Logan.             someone else’s trial . . . violates due process.” Id. at 254.
Among those testifying was Vaughn Bass, one of the co-
conspirators.                                                            When viewed in context, it is evident that Jackson does not
                                                                      alter the general rule that a district court is indeed permitted
  On December 21, 1992, the district court held Logan’s               to rely on evidence from a related proceeding, so long as there
sentencing hearing. Paragraph sixty of Logan’s presentence            are sufficient indicia of reliability.          Jackson simply
report contained facts suggesting that he had possessed or had        emphasizes that a district court must be clear as to the source
access to a firearm in relation to his drug trafficking activities.   of the evidence on which it bases its factual finding, and that
Specifically, it noted that Bass had observed cocaine and a
6      Logan v. United States                       No. 98-3839      No. 98-3839                      Logan v. United States         3

    admitted in the case unless the probation officer takes the      handgun in Logan’s apartment in November of 1991. Based
    stand and offers testimony which may be                          upon this information, the probation officer proposed a two-
    cross-examined.                                                  point increase in Logan’s offense level pursuant to
                                                                     § 2D1.1(b)(1) of the United States Sentencing Guidelines. At
Id. The court also wrote that “[w]hen a contested sentencing         the sentencing hearing, Logan objected to the enhancement,
enhancement factor appears in the probation report and is not        contending that he “never used a gun in anything.” The
proved by the government at the hearing, the court must              district court overruled his objection. In support of its
insure that the factor is otherwise proved by reliable evidence      decision, the district court made the following factual finding:
before using it to increase the sentence.” Id.
                                                                       I am satisfied by a preponderance of the evidence that
  As previously noted, Logan asserts that he is entitled to            Mr. Logan did possess a firearm in connection with the
challenge his firearm enhancement for a second time, through           offense, and that is based on statements of Mr. Bass and
a § 2255 motion, because McMeen allegedly signaled an                  the agents of the Bureau of Alcohol, Tobacco &
intervening change in the law. Logan, however, has failed to           Firearms, and I find that Mr. Bass’s testimony was
persuade us that McMeen constitutes such a change, as                  credible, and certainly more credible at this point than
opposed to simply another application of existing law. Given           Mr. Logan’s denial.
that the McMeen court did not engage in any analysis that
would suggest that it intended its holding to alter the                Logan appealed, asserting that the district court improperly
prevailing law with regard to sentencing procedures, we do           enhanced his sentence for use of a firearm and violated
not believe that its ruling constituted an “intervening change.”     Federal Rule of Criminal Procedure 32(a) by relying on
                                                                     outside information at sentencing without giving him
   This is especially true in light of the fact that Logan has not   adequate notice.       Finding these allegations of error
cited any pre-McMeen case allowing a district court to rely on       “meritless,” a prior panel of this court wrote as follows:
unsupported conclusions in a presentence report to justify an
enhancement. Cf. Chapman v. United States, 547 F.2d 1240,              First, the court determined that the testimony by Alcohol,
1243 (5th Cir. 1977) (acknowledging an intervening change              Tobacco, and Firearm (“ATF”) agents and Logan’s co-
in the law where two Supreme Court opinions “condemn[ed]               conspirators were [sic] more credible than Logan’s
what this court had allowed” prior to those rulings).                  testimony, and therefore, held a preponderance of the
                                                                       evidence established [that] Logan possessed a firearm.
   We further conclude that even if McMeen had effectuated             The court’s credibility determination was not clearly
an intervening change in the law, Logan would still not be             erroneous, and therefore, the enhancement was proper.
entitled to relief. Citing McMeen, Logan contends that in his          Second, Rule 32(a) requires [that] the court give a
case “the Government simply relied upon the [presentence]              defendant access to the presentence report. Here, Logan
report itself to meet its burden.” This argument, however, is          had access to the presentence report which clearly gave
belied by the record of the sentencing hearing. Although the           notice [that] the court planned to rely on the testimony of
presentence report was the starting point for its analysis, the        ATF agents and Logan’s co-conspirators during
district court made explicit factual findings based on evidence        sentencing.
already presented to the court in the trial of Logan’s co-
conspirators. In the opinion and order denying Logan’s               United States v. Logan, No. 92-4365, 1994 WL 112864, at *2
§ 2255 motion, the district court quite correctly noted that         n.1 (6th Cir. Mar. 31, 1994) (citations omitted).
“McMeen does not suggest . . . that it is improper for purposes
4      Logan v. United States                      No. 98-3839      No. 98-3839                       Logan v. United States        5

   On June 10, 1996, Logan filed a motion pursuant to 28            B. This court’s decision in McMeen does not require that
U.S.C. § 2255, requesting that the district court modify and           Logan be resentenced
correct his sentence. He argued that this court’s subsequent
decision in United States v. McMeen, 49 F.3d 225 (6th Cir.            Even if a legal issue is determined against a defendant on
1995) (holding that the district court erred by relying on an       direct appeal, the defendant may nonetheless “secur[e] relief
unsupported conclusion in a presentence report as a basis for       under § 2255 on the basis of an intervening change in law.”
finding that sufficient evidence existed to support an              Davis v. United States, 417 U.S. 333, 342 (1974). In support
enhancement), established that the district court did not have      of his § 2255 motion, Logan argues that this court’s decision
a proper basis for applying the enhancement. In an opinion          in United States v. McMeen, 49 F.3d 225 (6th Cir. 1995),
and order dated September 30, 1997, the district court denied       constitutes “new precedent” demonstrating that the
Logan relief, ruling that McMeen was not applicable to his          conclusion reached in response to Logan’s firearm
situation:                                                          enhancement challenge on direct appeal was “incorrect.”
    McMeen does not suggest, and the Court is not                      In McMeen, the defendant pled guilty to making a false
    persuaded, that it is improper for purposes of a sentence       statement on a credit card application in violation of 18
    enhancement to rely on testimony given under oath at a          U.S.C. § 1014. At sentencing, the district court increased the
    separate, but related, trial. . . . Although petitioner was     offense level by two points for “more than minimal planning”
    not present at this trial, the Court is satisfied that          pursuant to U.S.S.G. § 2F1.1(b)(2). In support of its decision,
    testimony given under oath is readily identifiable and          the district court relied on an addendum to the presentence
    sufficiently reliable to satisfy “basic fairness.”              report stating that the defendant participated in a larger credit
                                                                    card scheme in Florida. Neither the addendum nor the
  In this appeal, Logan argues that (1) McMeen constitutes an       presentence report, however, cited any evidence linking the
intervening change in the law that permits him to again attack      defendant to the Florida scheme. The defendant denied such
the firearm enhancement through a § 2255 motion, even               participation.
though a prior panel of this court determined the issue against
him on direct appeal, and (2) the holding of McMeen                   On appeal, this court reversed and remanded for
establishes that the district court erred.                          resentencing because “[t]he information concerning the larger
                                                                    offense in Florida d[id] not have sufficient ‘indicia of
                        II. ANALYSIS                                reliability’ . . . to prove the defendant’s involvement, and may
                                                                    not be used as the basis of an enhanced sentence.” McMeen,
A. Standard of review                                               49 F.3d at 226 (quoting United States v. Silverman, 976 F.2d
                                                                    1502 (6th Cir. 1992) (en banc)). In reaching this conclusion,
  “In reviewing the denial of a 28 U.S.C. § 2255 petition, this     the court stated as follows:
Court applies a de novo standard of review of the legal issues
and will uphold the factual findings of the district court unless     The mere conclusion of the probation report is an
they are clearly erroneous.” Hilliard v. United States, 157           insufficient basis for a finding that the evidence before
F.3d 444, 447 (6th Cir. 1998) (citing Gall v. United States, 21       the sentencing judge supports the proposition of fact
F.3d 107, 109 (6th Cir. 1994)).                                       asserted therein. Basic fairness requires that the evidence
                                                                      be identified and its reliability demonstrated. In a
                                                                      contested case, the position of the probation officer on a
                                                                      material matter should not be treated as evidence
