1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0245P (6th Cir.)

File Name: 03a0245p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MIKE DARWICH,

Defendant-Appellant.

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Nos. 99-2147;

01-2044

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 98-80508—Lawrence P. Zatkoff, Chief District Judge.

Argued: October 31, 2002

Decided and Filed: July 24, 2003 

Before: KEITH, KENNEDY, and MOORE, Circuit

Judges.

_________________

COUNSEL

ARGUED: Robert M. Morgan, Detroit, Michigan, for

Appellant. Kathleen Moro Nesi, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

ON BRIEF: Robert M. Morgan, Detroit, Michigan, for

2 United States v. Darwich Nos. 99-2147; 01-2044

Appellant. Kathleen Moro Nesi, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

MOORE, J., delivered the opinion of the court, in which

KEITH, J., joined. KENNEDY, J. (pp. 36-39), delivered a

separate opinion concurring in part and dissenting in part.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. DefendantAppellant Mike Darwich (“Darwich”) appeals from the

eighty-eight month sentence imposed by the district court

after he was convicted of conspiracy to distribute marijuana

in violation of 21 U.S.C. § 846, and after he was subject to

criminal forfeiture pursuant to 21 U.S.C. § 853. Darwich

challenges the standard of proof used to establish drug

quantity for sentencing, the sufficiency of the evidence used

to prove drug quantity, and the receipt of firearm and

leadership-role sentence enhancements.

Darwich was indicted for various drug-related crimes.

Pursuant to a plea agreement, Darwich pleaded guilty to the

conspiracy to distribute marijuana charge and agreed to the

criminal forfeiture. The plea agreement, expressly noting the

parties’ decision to present evidence on the amount of

marijuana at issue, stated that Darwich’s prison sentence

would not exceed ninety-six months. Thereafter, a probation

officer prepared a presentence investigative report (“PSR”)

calculating Darwich’s base offense level at 26, to which

Darwich objected. The PSR arrived at this base offense level

calculation through the use of a drug quantity averaging

formula that held Darwich responsible for five pounds of
Nos. 99-2147; 01-2044 United States v. Darwich 3

1

The formula used was set forth in an addendum to the PSR and was

accepted by both district court opinions: “453.6 grams (equivalent to one

pound of marijuana) x 5 days per week x 52 weeks per year x 2 years that

the conspiracy spanned. This resulted in a total of 235,872 grams of

marijuana divided by 1,000 (grams to kilograms conversion) equals a total

of 236 kilograms of marijuana.” Joint Appendix (“J.A.”) at 550 (7/10/01

Dist. Ct. Op. & Or.). United States Sentencing Guidelines (“U.S.S.G.”)

§§ 2D1.1(a)(3) and 2D1.1(c)(7) provide that a base offense level of 26 is

required for offenses involving at least 100 but less than 400 kilograms

of marijuana. U.S.S.G. §§ 2D1.1(a)(3), 2D1.1(c)(7) (1998).

marijuana per week for the length of the conspiracy.

1

 The

district court agreed with the PSR and determined that

Darwich’s conspiracy involved 236 kilograms of marijuana.

Darwich was sentenced to eighty-eight months in prison and

four years of supervised release, and he immediately filed an

appeal. Subsequent to the filing of the appellate briefs but

before oral argument, the Supreme Court decided Apprendi v.

New Jersey, 530 U.S. 466 (2000). In light of the Court’s

decision in Apprendi and the government’s failure to allege

any specific quantity of marijuana in the indictment, both

Darwich and the government filed motions in this court to

waive oral argument and requested that the case be remanded

to the district court for resentencing to the statutory maximum

of sixty months pursuant to § 841(b)(1)(D). On remand, the

district court declined to consider the parties’ sentence

stipulation and determined that the evidence that the

conspiracy involved 236 kilograms of marijuana was

established beyond a reasonable doubt. Darwich, thereafter,

filed this current appeal. We now REVERSE the district

court’s determination of the amount of drugs, VACATE

Darwich’s sentence because it was error for the district court

to find that the necessary drug quantity was proven beyond a

reasonable doubt and because the district court failed to issue

a ruling on the disputed matter of Darwich’s leadership role,

and REMAND for resentencing to no more than sixty months

in accordance with this opinion.

4 United States v. Darwich Nos. 99-2147; 01-2044

I. BACKGROUND

Darwich owned and operated the Canfield Market in

Detroit, Michigan. The market sold snacks and alcoholic

beverages but did not sell any milk, eggs, or bread. Market

customers also were able to purchase nickel bags of marijuana

from Darwich. According to Tom Smith (“Smith”), a former

employee of the market, an estimated nine out of ten market

customers purchased marijuana from Darwich. Darwich

stored the marijuana on his person and in Pringles brand

potato chip cans on the store shelves. The market’s covert

operations were uncovered when the FBI investigated

whether police officers were protecting a drug business at the

market.

On June 18, 1998, Darwich was indicted for conspiracy to

distribute marijuana in violation of 21 U.S.C. § 846; use or

carrying of a firearm in relation to a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1) & (2); possession with

intent to distribute marijuana in violation of 21 U.S.C.

§ 841(a)(1); two counts of maintaining a place for distributing

and using marijuana in violation of 21 U.S.C. § 856; and

criminal forfeiture pursuant to 21 U.S.C. § 853. The

indictment alleged that the conspiracy took place between

March 1996 and April 1998. Darwich subsequently entered

into a Rule 11 plea agreement on the marijuana conspiracy

charges under 21 U.S.C. § 846 and agreed to the criminal

forfeiture under 21 U.S.C. § 853. The government dismissed

all other charges brought against Darwich. Although the

parties did not agree on a computation of the sentencing

guidelines or a base offense level, they agreed to present

evidence to the court for sentencing purposes, and the plea

agreement stated that Darwich’s prison sentence would not

exceed ninety-six months.

A probation officer’s calculations for the PSR set

Darwich’s base offense level at 26, for distribution of more

than100 but less than 400 kilograms of marijuana. Darwich

objected to this base offense level calculation and together
Nos. 99-2147; 01-2044 United States v. Darwich 5

2

Before the grand jury, Easterling testified that there were other

baggers whom Darwich referred to as the “camel people.”

with the United States Attorney made an unsuccessful attempt

to stipulate to a specific sentence at the hearing on Darwich’s

objections to the PSR. The district court declined to accept

the stipulated sentence, and instead held an evidentiary

hearing on the issue of marijuana quantity. At this

evidentiary hearing, the court heard testimony from four

individuals, involved with or knowledgeable of the

conspiracy, addressing the question of drug quantity.

The first witness was Agent Kyle Dodge (“Dodge”). A

substantial portion of Dodge’s testimony consisted of his

summary recitation of the witnesses’ testimony before the

grand jury. Dodge testified that: (1) Ira Earehart testified that

on ten occasions he purchased marijuana in quantities ranging

from a nickel bag to one-quarter of a pound, and that on

twenty occasions he purchased pound quantities; (2) Leon

Lippett (“Lippett”) testified that eight out of ten Canfield

Market customers purchased marijuana; (3) Arnita Easterling

(“Easterling”) testified that sometime in or around July 1997

she began bagging nickel bags of marijuana three times a

week and that other “camel people”2 also bagged marijuana;

(4) Arthur Pace testified that in the fall of 1997 he bagged a

pound of marijuana into nickel bags each night; (5) Jillian

Drappeaux (“Drappeaux”) testified that she purchased

marijuana from the market approximately twenty times in

quantities of a pound or less; (6) Odestser Pace testified that

as a market employee she sold nickel bags of marijuana;

(7) Jason Alquiza (“Alquiza”) testified that he regularly

purchased marijuana at the market in quantities up to a pound;

(8) Smith, a market employee, testified that during his shift

nine out of ten customers came to purchase marijuana and

that ordinarily there were sixty-five to seventy market

customers during his shift; and (9) Kevin Dempsey testified

that he worked at the market and assisted Darwich with the

sale of marijuana. Dodge provided additional drug quantity

6 United States v. Darwich Nos. 99-2147; 01-2044

3

It is unclear from Rush’s testimony precisely how much marijuana

he purchased “basically every day.” When asked how many nickel bags

he would purchase at one time, Rush replied: “Sometimes three to five

bags, something like that.” J.A. at 441 (Mot. Hr’g, Rush Direct).

4

On cross examination, defense counsel impeached Rush with a prior

affidavit from his own arrest in which he told the arresting officers that he

had been selling marijuana over the past two months only. J.A. at 452-53

(Mot. Hr’g, Rush Cross Exam.).

5

Specifically, Rush testified that “[S]ometimes when I dropped one

of them off they tell me that, you know, if I picked them up I seen them

the next day, that I packed up a pound or I did two pounds or a pound and

a half, like that, you know.” J.A. at 443 (Mot. Hr’g, Rush Direct). On recross examination Rush stated that his nephews worked “[p]ossibly every

night because [he] would drop them off just about every day, every

night.” J.A. at 456 (Mot. Hr’g, Rush Re-cross Exam.).

evidence, informing the sentencing court that approximately

655.4 grams of marijuana were uncovered at the market

during the search.

The next witness to testify was Orlando Rush (“Rush”), a

federal prisoner incarcerated for possession with intent to

distribute crack cocaine. The government secured Rush’s

testimony against Darwich by agreeing to recommend that

Rush be released on bond and that his sentence be reduced to

time served. Rush testified that he bought nickel bags from

Darwich for personal use “basically every day”3 over the

course of approximately nine months prior to Rush’s arrest.

Joint Appendix (“J.A.”) at 440 (Mot. Hr’g, Rush Direct). He

also testified that when he needed extra money he would buy

anywhere from one-half of an ounce to one pound for further

resale during the same nine-month timeframe.4 Rush further

testified that Darwich sold approximately a pound of

marijuana each day. When questioned as to how he arrived

at this figure, Rush noted that his nephews (also known as the

“camel people”) worked as marijuana baggers at Darwich’s

home and that they would sometimes tell him that they

bagged from one to two pounds at night.5
Nos. 99-2147; 01-2044 United States v. Darwich 7

6

Smith worked the evening shift from 5:00 p.m. until closing. Smith

testified that Darwich closed the store between 10:00 and 11:00 p.m.

However, Dodge was recalled at the end of the evidentiary hearing and

testified that the electronic surveillance indicated the store closed almost

every night at 9:00 p.m.

Darwich called the next witness, Easterling. Easterling

testified that she began bagging marijuana in September

1997. She also testified that she did not bag every day and

that there were periods of time when she did not bag

marijuana at all. Easterling indicated that she worked three or

four days each week. Although Easterling never weighed the

marijuana, she initially estimated that she bagged one-half of

a pound to one pound on the days when she worked. After

further probing, Easterling admitted that it actually may have

been less than one-quarter of a pound and that she really did

not know the precise figure. In addition, Easterling testified

that during her twelve-hour work days, she never saw anyone

besides Darwich and Dempsey, thereby eliminating any

possibility that she worked in conjunction with Rush’s

nephews. In response to a question from the judge, Easterling

responded that she filled 300 to 325 nickel bags on the days

when she worked.

The final witness was Smith, a Canfield Market employee.

On direct examination, Smith admitted that he was not at the

store every day and that there were times when he was absent

due to vacation, hospitalization, and his other jobs. He also

testified that between 1997 and the early part of 1998, the

store was closed for at least four weeks. Smith admitted

seeing Darwich sell nickel bags of marijuana, but testified

that he never saw Darwich distribute any larger amounts.

Although Smith admitted that his statement before the grand

jury that nine out of ten customers bought marijuana was a

guess, on cross examination he repeated that during his shift,6

nine out of ten customers bought nickel bags.

At the completion of the four witnesses’ testimony, the

court instructed the parties to submit briefs arguing their

8 United States v. Darwich Nos. 99-2147; 01-2044

positions on sentencing. Ultimately, the district court agreed

with the PSR calculations and the government when it

determined that Darwich was responsible for the distribution

of 236 kilograms of marijuana. The district court explained

its reasoning:

Several witnesses’ testimony established that Defendant

sold marijuana in large quantities. Earhardt’s [sic] grand

jury testimony established that he bought “nickel bags”

from Defendant ten times and a pound of marijuana on

twenty occasions. Drappeaux’s grand jury testimony

showed that she purchased up to one pound of marijuana

from Defendant more than twenty times. Alquiza

testified before the grand jury that he was a regular

purchaser of marijuana at the Canfield Market,

purchasing up to a pound at a time. Finally, Orlando

Rush testified at the evidentiary hearing that he would

purchase anywhere from one ounce to one pound of

marijuana from Defendant for resale, plus smaller

amounts for personal use.

In addition to Defendant’s large-quantity sales, the

testimony at the hearing demonstrated that Defendant

also sold a great deal of marijuana in smaller quantities.

Arthur Pace’s grand jury testimony established that

Defendant paid him $300 a week to bag marijuana.

Easterling testified at the hearing that she would bag

anywhere from a half pound to a pound of marijuana for

Defendant. Further she stated that when she did work,

she filled between 300 and 325 bags of marijuana.

This Court was also impressed by the testimony which

showed that the Canfield Market was basically a drug

operation and not a market selling legitimate consumer

goods. Lippett testified before the grand jury that eight

of ten customers at the Canfield Market were there to

purchase marijuana. Smith testified before the grand jury

that nine of ten customers at the Canfield Market

purchased marijuana. Smith reiterated this testimony at
Nos. 99-2147; 01-2044 United States v. Darwich 9

the hearing, again stating that nine of ten customers

purchased marijuana. Smith also testified that the

Canfield Market did not have any milk, eggs, or bread in

the store.

Finally, Rush testified that his nephews worked for

Defendant for about two years. Rush’s nephews worked

every night, and Rush was aware of this fact because he

would drive his nephews to Defendant’s house. Rush

learned, through his nephews, that they would package

between one and two pounds of marijuana a night for

Defendant.

United States v. Darwich, No. 98-80508, at 10-11 (Sept. 30,

1999).

On October 4, 1999, Darwich was sentenced to eighty-eight

months in prison and four years of supervised release. That

same day, Darwich filed a notice of appeal to this court. The

central argument he raised in his appellate brief was that even

though the United States Attorney and Darwich had stipulated

to a base-offense-level calculation, the district court

predetermined the sentence Darwich would receive based on

the ninety-six month figure in the plea agreement without

considering the stipulation or the testimony at the evidentiary

hearing. Specifically, the district judge said on the record, “I

took a plea wherein the Court was under the impression that

ninety-six months was the cap and that’s what I think is

appropriate in this case.” J.A. at 498 (Mot. Hr’g). In

contrast, the government argued that the district court merely

declined to accept the parties’ proffered modified plea

agreement which stipulated the sentence and instead the court

affirmed its adherence to the ninety-six month cap provided

in the original Rule 11 plea agreement. In essence, the

government argued, the district court merely refused to

surrenderitsfunction of determining the appropriate sentence.

After the government and Darwich filed their briefs for the

first appeal but before oral argument, the Supreme Court

10 United States v. Darwich Nos. 99-2147; 01-2044

7

Strayhorn concludes that on remand a district court can correct an

Apprendi error in the guilty plea context by determining the necessary

drug quantity under the proper beyond-a-reasonable-doubt standard or by

adhering to 21 U.S.C. § 841(b)(1)(D) and the Sentencing Guidelines to

resentence the defendant. United States v. Strayhorn, 250 F.3d 462, 471

(6th Cir. 2001).

8

The original appeal in this case was numbered No. 99-2147. After

the district judge issued its second opinion on remand, the parties moved

to recall the mandate in the 99-2147 appeal, and a divided panel of this

court granted the motion to recall the mandate. On November 29, 2001,

we granted Darwich’s motion to consolidate the 99-2147 appeal with his

appeal from the district court’s second opinion on remand.

decided Apprendi. In light of the Court’s decision in

Apprendi and the government’s failure to allege any specific

quantity of marijuana in the indictment, both Darwich and the

government filed motions in this court waiving oral argument

and requesting that the case be remanded to the district court

for resentencing to the statutory maximum of sixty months

consistent with 21 U.S.C. § 841(b)(1)(D). The motion was

granted, and on remand, the district court adamantly declined

to resentence Darwich pursuant to § 841(b)(1)(D). The court

stated that it had expended resources on Darwich’s case and

had found that he was responsible for 236 kilograms of

marijuana. In its opinion issued on July 10, 2001, and relying

on United States v. Strayhorn, 250 F.3d 462 (6th Cir. 2001),

overruled on other grounds by United States v. Leachman,

309 F.3d 377 (6th Cir. 2002),7 the district court determined

that, although quantity was not alleged in the indictment, the

evidence on quantity was established beyond a reasonable

doubt. The district court relied on the same analysis

contained in its September 30, 1999 opinion and concluded

that Darwich was responsible beyond a reasonable doubt for

more than 100 but less than 400 kilograms of marijuana. On

July 16, 2001, Darwich appealed to this court from the district

court’s judgment resentencing him to eighty-eight months of

imprisonment based on its determination that the quantity

evidence was proved beyond a reasonable doubt.8
Nos. 99-2147; 01-2044 United States v. Darwich 11

9

If the district court could not find fifty kilograms beyond a

reasonable doubt, then the district court would have been unable to

sentence Darwich under § 841(b)(1)(C) with a maximum sentence of

twenty years and instead would have had to sentence him under

§ 841(b)(1)(D). Section 841(b)(1)(D) provides for a maximum sentence

of five years (or sixty months) when the amount of marijuana established

is less than fifty kilograms. Thus, without finding beyond a reasonable

doubt the necessary fifty kilograms to bring Darwich’s sentence within

the purview of § 841(b)(1)(C), Darwich’s eighty-eight month sentence

would violate the sixty-month statutory maximum contained in

§ 841(b)(1)(D).

II. ANALYSIS

A. Apprendi Error

The district court on remand chose to reassess the evidence

against Darwich and determined that the same evidence that

established Darwich’s involvement with at least 100

kilograms of marijuana by a preponderance of the evidence

pre-Apprendi was sufficienttomeet the beyond-a-reasonabledoubt requirement post-Apprendi. In order for the district

court to have reached this conclusion, it must have found

Darwich responsible for at least fifty kilograms of marijuana

beyond a reasonable doubt,9 for otherwise his eighty-eight

month sentence would have exceeded the statutory maximum

alleged in the indictment. To arrive at this conclusion, the

district court relied on the same evidence that it used when it

found by a preponderance of the evidence that Darwich was

responsible for 236 kilograms of marijuana, which included

substantial hearsay testimony. In this consolidated appeal,

Darwich argues that the district court improperly concluded

that the drug quantity necessary to sentence him to eightyeight months in prison pursuant to 21 U.S.C. § 841(b)(1)(C),

U.S.S.G. § 2D1.1(a)(3), and U.S.S.G. § 2D1.1(c)(7) was

proved beyond a reasonable doubt. Thus, our analysis will

focus on the specific question of whether a district court’s use

of hearsay testimony to establish drug quantity beyond a

reasonable doubt violates Apprendi. This is a question of first

impression in the courts of appeals.

12 United States v. Darwich Nos. 99-2147; 01-2044

10Leachman partially overruled a number of cases in this circuit, see,

e.g., United States v. Harper, 246 F.3d 520 (6th Cir. 2001), and United

States v. Humphrey, 287 F.3d 422 (6th Cir. 2002), to the extent that the

Supreme Court in Harris v. United States, -- U.S. --, 122 S. Ct. 2406

(2002), held that Apprendi’s protections only extend to those situations

where a fact not proved beyond a reasonable doubt enhances a

defendant’s sentence beyond the statutory maximum, and does not extend

to those cases where the fact only increases the defendant’s statutory

mandatory minimum. We note that these cases remain binding precedent

except insofar as they are inconsistent with Harris’s rule regarding

statutory mandatory-minimum sentences. We cite these cases for the

proposition that the subsections of § 841(b) require that the drug quantity

be proved beyond a reasonable doubt or else the defendant can receive

only the default statutory-maximum penalty for offenses which do not

state drug quantity. See generally United States v. Lopez, 309 F.3d 966,

The Supreme Court announced in Apprendi that “[o]ther

than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490. After the landmark decision in

Apprendi, we determined that the federal drug statute’s

progression of increased maximum penalties based on the

amount of drugs in possession triggers Apprendi’s protection.

See Strayhorn, 250 F.3d at 467-68; see also United States v.

Zidell, 323 F.3d 412, 427-28 (6th Cir. 2003) (stating that

Apprendi requires a defendant to be sentenced using the

default statutory maximum “unless the jury determines

beyond a reasonable doubt that the offense involved a

quantity of drugs that triggers an enhanced statutory

maximum”); United States v. Copeland, 321 F.3d 582, 602

(6th Cir. 2003) (reiterating that we require proof beyond a

reasonable doubt when sentencing drug offenders under the

“higher tiers” of the scheme set forth in § 841(b)). Thus, for

the purpose of establishing the statutory-maximum sentence

for drug offenses, the drug amount must be proved beyond a

reasonable doubt. United States v. Garcia, 252 F.3d 838, 842

(6th Cir. 2001). In United States v. Flowal, 234 F.3d 932 (6th

Cir. 2000), overruled on other grounds by Leachman, 309

F.3d at 383,10 we held that each provision of § 841(b)
Nos. 99-2147; 01-2044 United States v. Darwich 13

970 (6th Cir. 2002) (noting that because the jury did not find beyond a

reasonable doubt the necessary cocaine amounts for sentencing under

§§ 841(b)(1)(A) or 841(b)(1)(B), Apprendi would require that the

defendant be sentenced under the default statutory-maximum provision

for cocaine contained in § 841(b)(1)(C)).

provides for a different criminal offense with separate

elements which all must be proved beyond a reasonable doubt

when a defendant guilty of a marijuana conspiracy is

sentenced in excess of the default statutory maximum set out

in § 841(b)(1)(D). Id. at 938; see also United States v.

Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (continuing

to hold, after Leachman, that § 841(b)(1)(D) is the statutory

maximum sentence for conspiring to distribute an

undetermined amount of marijuana), cert. denied, -- U.S. --,

123 S. Ct. 1005 (2003).

An Apprendi violation not only can occur when a case

proceeds to trial but also can occur when a defendant pleads

guilty to a drug offense. See Strayhorn, 250 F.3d at 468. If

an Apprendi error occurs in a situation involving a guilty plea,

the district court can cure the error by finding drug quantity

beyond a reasonable doubt and sentencing the defendant

accordingly. Id. at 471. The justification for applying

Apprendi in the guilty plea context is that:

the defendant who pleads guilty to an unspecified

amount of drugs and is then sentenced under the

preponderance-of-the-evidence standard may just as

easily be subjected to an enhanced sentence in excess of

the default statutory maximum as the defendant who

takes his case to trial and is then sentenced by the district

court under the same preponderance-of-the-evidence

standard.

Id. at 468. Because Strayhorn requires the district court,

when the defendant is subject to an enhanced sentence, to

consider “the determination of drug quantity under § 841(b)

. . . [as] an element of the offense rather than a sentencing

14 United States v. Darwich Nos. 99-2147; 01-2044

factor,” we must review whether the district court’s use of

hearsay testimony to establish the necessary drug quantity

beyond a reasonable doubt is appropriate in light of

Apprendi’s holding. Id. (citing United States v. Ramirez, 242

F.3d 348, 351 (6th Cir. 2001)).

1. Hearsay Testimony

Although failure to raise an objection in the district court to

preserve an Apprendi issue limits appellate review to a plain

error inquiry, see United States v. Page, 232 F.3d 536, 543

(6th Cir. 2000) (citing Fed. R. Crim. P. 52(b)), a pre-Apprendi

defendant’s objection at the sentencing hearing to the quantity

of drugs and the judge’s determination by a preponderance of

the evidence is sufficient to entitle the defendant to de novo

review. See Copeland, 321 F.3d at 601; Humphrey, 287 F.3d

at 445. In Strayhorn, the defendant preserved his challenge

to his sentence by repeatedly objecting to the drug quantity

determination at the plea hearing, at the sentencing hearing,

and in written objections to the calculation of his base offense

level in his presentence report. See Strayhorn, 250 F.3d at

467. We determined that although Strayhorn did not “utter

the words ‘due process,’” he nonetheless preserved his

challenge to the drug quantity determination. Id. Much like

Strayhorn, Darwich adequately preserved his constitutional

challenge to the quantity determination under Apprendi.

Darwich consistently objected, both in writing and orally, to

the PSR’s computation of a specific drug amount. Darwich

objected to the drug quantity at the evidentiary hearing,

referencing the objections raised in his letter to the Probation

Department after it assessed the quantity. Darwich also

alerted the district court, at the plea hearing, that the amount

of marijuana was in dispute. Thus, we review Darwich’s
Nos. 99-2147; 01-2044 United States v. Darwich 15

11While it is true that a defendant’s failure to object to his sentence

before the district court on the same ground raised on appeal limits our

review to plain error, United States v. Stubbs, 279 F.3d 402, 407 (6th Cir.

2002), we conclude that de novo review is appropriate because Darwich

objected to Rush’s hearsay testimony in a supplement to his objections to

the PSR. J.A. at 84 (Supp. to Sentencing Mem. & Objections). Thus,

even though the gravamen of Darwich’s appeal involves a determination

of whether Apprendi allows hearsay testimony to be considered in proving

drug quantity beyond a reasonable doubt, de novo review remains the

proper standard of review because Darwich objected to his sentence

before the district court on the same grounds.

Apprendi challenge de novo because he adequately preserved

his quantity claim.11

We have repeatedly held that hearsay is permissible at a

sentencing hearing so long as it has some minimum indicia of

reliability. United States v. Davis, 170 F.3d 617, 622 (6th

Cir.), cert. denied, 528 U.S. 861 (1999); United States v.

Polselli, 747 F.2d 356, 358 (6th Cir. 1984), cert. denied, 469

U.S. 1196 (1985). Federal Rule of Evidence 1101(d)(3)

provides that the rules of evidence are “inapplicable” to

“[m]iscellaneous proceedings,” including sentencing

hearings. Fed. R. Evid. 1101(d)(3). Although we recognize

this court’s traditional acceptance of hearsay testimony at

sentencing, we take our direction from Strayhorn that drug

quantity is considered an element of the offense and not a

sentencing factor when such quantity alters the statutorymaximum sentence the defendant could receive. Strayhorn,

250 F.3d at 468 (citing Ramirez, 242 F.3d at 351); see also

Zidell, 323 F.3d at 427-28 (noting that specific cocaine

quantities must be proved beyond a reasonable doubt in order

to sentence a defendant using the enhanced-penalty provisions

of 21U.S.C. §§ 841(b)(1)(A) and 841(b)(1)(B)). In keeping

with this principle, we hold that the normal rules of evidence

should apply when Apprendirequires the district court to find

the drug quantity beyond a reasonable doubt, and therefore it

is not permissible to use hearsay evidence to reach the fifty16 United States v. Darwich Nos. 99-2147; 01-2044

12Specifically, the testimony revealed:

MR. TURKEL: And you said [your nephews] indicated to you

the amount of marijuana that [Darwich] was

selling?

MR. RUSH: That they would package up each night.

MR. TURKEL: What did they tell you?

MR. RUSH: Well, sometimes when I dropped one of them

off they tell me that, you know, if I picked

them up I seen them the next day, that I

packed up a pound or I did two pounds or a

pound and a half, like that, you know.

J.A. at 443 (Tr. of Mot. Hr’g, Rush Direct Exam.).

kilogramquantityneededtosentenceDarwichunder§841(b)(1)(C).

In the present case, the district court relied extensively on

Rush’s testimony12 that his nephews sometimes told him how

many pounds of marijuana they bagged a night when he

picked them up or happened upon them the next day. Rush’s

testimony regarding his nephews’ statements constitutes an

out-of-court statement “offered in evidence to prove the truth

of the matter asserted,” and it therefore meets the definition

of hearsay provided in Federal Rule of Evidence 801(c). Fed.

R. Evid. 801(c). However, Rule 801(d)(2)(E) provides that a

statement is not hearsay if: “[t]he statement is offered against

a party and is . . . a statement by a coconspirator of a party

during the course and in furtherance of the conspiracy.” Fed.

R. Evid. 801(d)(2)(E). “In order to admit the statement of a

co-conspirator under . . . [Rule] 801(d)(2)(E), it must first be

determined that the conspiracy existed, that the defendant was

a member of the conspiracy, and that the co-conspirator’s

statements were made in furtherance of the conspiracy.”

United States v. Gessa, 971 F.2d 1257, 1261 (6th Cir. 1992)

(en banc) (internal quotation marks omitted); see also United

States v. Hamilton, 689 F.2d 1262, 1268 (6th Cir. 1982), cert.

denied, 459 U.S. 1117 (1983) (noting that these elements

must be proved by a preponderance of the evidence). A
Nos. 99-2147; 01-2044 United States v. Darwich 17

statement is considered to be in furtherance of the conspiracy

“if it is intended to promote the objectives of the conspiracy.”

United States v. Monus, 128 F.3d 376, 392 (6th Cir. 1997)

(quotation omitted); Hamilton, 689 F.2d at 1270; see also

United States v. Doerr, 886 F.2d 944, 951 (7th Cir. 1989)

(“We recently emphasized that the in furtherance requirement

of Rule 801(d)(2)(E) is a limitation on the admissibility of

coconspirators’ statements that is meant to be taken

seriously.” (internal quotation marks omitted)).

Applying the test of Gessa, we do not question that a

conspiracy existed or that Darwich was an active participant

in the conspiracy. However, we conclude that Rush’s

nephews’ statements were not made in furtherance of the

conspiracy. As an initial matter, it is quite clear that mere

“idle chatter or casual conversation about past events” is not

considered a statement “in furtherance of the conspiracy.”

United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000)

(quotation omitted); see also United States v. Salgado, 250

F.3d 438, 449-50 (6th Cir.), cert. denied, 534 U.S. 916 and

534 U.S. 936 (2001); United States v. Foster, 711 F.2d 871,

880 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984)

(noting that “mere narrative declarations” made without the

intent to induce assistance for the conspiracy do not fall

within the “strict requirements” of Rule 801). The nephews’

statements as to how much marijuana they bagged were

neither attempts to “keep[] co-conspirators advised,” Tocco,

200 F.3d at 419, nor were they “[s]tatements that identify

participants and their roles in the conspiracy.” Monus, 128

F.3d at 393 (internal quotation marks omitted). It is apparent

from the transcripts of Rush’s testimony that these statements

were casual conversation about past events. Rush’s testimony

itself indicates that his nephews made these statements only

occasionally; if he happened to pick his nephews up or see

them in passing, they “sometimes” mentioned to him how

much marijuana they had bagged the previous night. J.A. at

443 (Tr. of Mot. Hr’g, Rush Direct Exam.). In sum, these

statements are simply casual conversation — indicative of

how hard the nephews worked on a particular evening — and,

18 United States v. Darwich Nos. 99-2147; 01-2044

13Rush also testified regarding his own purchases from Darwich of

marijuana for personal use and for resale. The district court could have

relied on this testimony in its attempt to determine whether the evidence

establishes fifty kilograms beyond a reasonable doubt.

14We note that both Easterling and Smith testified at the evidentiary

hearing on Darwich’s objections to the PSR’s drug quantity calculations

and, thus, were subject then to cross examination. Conservatively

calculating the amount of drugs mentioned in their combined testimony,

other than the illegal nature of the work, are no different than

a statement by a farmer that he harvested forty acres of wheat

by sundown. Because Rush’s testimony with respect to his

nephews’ out-of-court statements is hearsay

13 that does not

fall within an exception to the general rule, it was error for the

district court to rely on this evidence.

Without Rush’s testimony regarding his nephews’

statements, the only other way for the district court to reach

the necessary fifty kilograms beyond a reasonable doubt is

through Dodge’s testimony restating the testimony of grand

jury witnesses. If permissible evidence, Dodge’s testimony

would provide substantial evidence on the drug quantity

question. However, Agent Dodge’s testimony also comes

within the definition of hearsay provided in Federal Rule of

Evidence 801(c) because it constitutes an out-of-court

statement “offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). One potentially applicable

exception, Federal Rule of Evidence 804(b)(1), provides that

former testimony, “given as a witness at another hearing of

the same or a different proceeding,” will not be excluded by

the hearsay rule if the declarant is unavailable and “the party

against whom the testimony is now offered . . . had an

opportunity and similar motive to develop the testimony by

direct, cross, or redirect examination.” Fed. R. Evid.

804(b)(1). Here, regardless of whether the grand jury

witnesses properly could be considered “unavailable,”

Darwich had no opportunity to cross examine these

witnesses.

14 Therefore, the grand jury testimony does not fall
Nos. 99-2147; 01-2044 United States v. Darwich 19

however, we cannot reach the necessary drug quantity beyond a

reasonable doubt.

15Rule 807 states:

A statement not specifically covered by Rule 803 or 804 but

having equivalent circumstantial guarantees of trustworthiness,

is not excluded by the hearsay rule, if the court determines that

(A) the statement is offered as evidence of a material fact; (B)

the statement is more probative on the point for which it is

offered than any other evidence which the proponent can

procure through reasonable efforts; and (C) the general purposes

of these rules and the interests of justice will best be served by

admission of the statement into evidence.

Fed. R. Evid. 807.

16I dissented in Laster based on the majority’s expansive reading of

the residual hearsay exception that directly conflicted with both the plain

language of the Rule and the legislative history. See Laster, 258 F.3d at

533 (Moore, J., dissenting). Although I continue to believe that my view

is the proper interpretation of Rule 807, I recognize that Laster is the

current law of the circuit.

17In Barlow, we defined unavailability as including a situation when

“a witness persists in refusing to testify concerning the subject matter of

his statement despite an order of the court to do so.” Barlow, 693 F.2d at

within the former-testimony exception to the hearsay rule.

Cf. United States v. Foster, 128 F.3d 949, 954-56 (6th Cir.

1997) (holding that when the defendant’s witness is

unavailable and the government had the same motive and

opportunity to develop the witness’s testimony at the grand

jury proceeding, the requirements of 804(b)(1) are satisfied).

On occasion, when a statement is inadmissible hearsay

under Federal Rules of Evidence 803 and 804, it still can be

admitted under Federal Rule of Evidence 807, the residual

hearsay exception.15 United States v. Laster, 258 F.3d 525,

530 (6th Cir. 2001), cert. denied, 534 U.S. 1151 (2002);16see

also United States v. Barlow, 693 F.2d 954, 961-63 (6th Cir.

1982), cert. denied, 461 U.S. 945 (1983) (holding that the

grand jury testimony of an unavailable

17 witness “under

20 United States v. Darwich Nos. 99-2147; 01-2044

961 (internal quotation omitted) (analyzing the precursor to Rule 807,

Rule 804(b)(5)). When analyzing the admissibility under the

Confrontation Clause of prior testimony, the Supreme Court has stated

that the declarant must be unavailable and the testimony must have

sufficient indicia of reliability. See White v. Illinois, 502 U.S. 346, 354

(1992); Ohio v. Roberts, 448 U.S. 56, 65-66 (1980).

18The Supreme Court considers cross examination to be the “greatest

legal engine ever invented for the discovery of truth.” California v.

Green, 399 U.S. 149, 158 (1970) (internal quotation and citation omitted).

certain circumstances” is admissible pursuant to Rule 807).

This rule requires that before Rule 807 can apply, the

evidence must have “equivalent circumstantial guarantees of

trustworthiness” as compared to evidence admitted under the

other hearsay exceptions contained in Rules 803 and 804.

Fed. R. Evid. 807; see Barlow, 693 F.2d at 962. In addition,

as stated by the rule, the evidence admitted must go to a

“material fact,” must be more probative than any other

evidence that reasonably could have been procured, and its

admission must support the general purposes of the Rules of

Evidence and “the interests of justice.” Fed. R. Evid. 807; see

United States v. Canan, 48 F.3d 954, 959 (6th Cir. 1995).

While balancing all of these concerns, the district court also

must consider the “independent restrictions” on the admission

of certain evidence contained in the Confrontation Clause of

the Sixth Amendment which protects a criminal defendant’s

right to confront the witnesses against him and to challenge

their testimony through cross examination. Canan, 48 F.3d

at 959-960.

Without proper cross examination,18 the statements of

Rush’s nephews cannot be deemed to have “equivalent

circumstantial guarantees of trustworthiness.” These

statements were off-the-cuff estimations subject to

miscalculations and/orinaccurate representations, creating the

precise type of problem that the hearsay rule is designed to

prevent. An opportunity to cross examine Rush’s nephews in

this situation is the only way that Darwich would be able to
Nos. 99-2147; 01-2044 United States v. Darwich 21

explore any concerns with the integrity and accuracy of these

statements. Moreover, we also must consider the source

when evaluating the reliability of this hearsay testimony. The

testimony was offered by Rush when he was in a likely

position to supply self-serving testimony. While this

testimony does not exculpate Rush at the expense of

implicating Darwich, it is the exact testimony the government

sought when it presented Rush with a deal. Rush’s testimony

suffers from the same infirmities as that of a coconspirator

because the government promised Rush a chance at a reduced

sentence in exchange for his testimony against Darwich. See

United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.

1991); see generally Bruton v. United States, 391 U.S. 123,

141 (1968) (White, J. dissenting) (stating that the confession

of a codefendant is less credible than ordinary hearsay

evidence “[d]ue to [the codefendant’s] strong motivation to

implicate the defendant and to exonerate himself”); Miller v.

Field, 35 F.3d 1088, 1092-93 (6th Cir. 1994) (noting that with

respect to testimony from the alleged assailants who were also

facing criminal charges, “the possibility certainly existed that

they would tailor their comments to the investigator so as to

promote their own best interests”). As a final matter,

although the nephews’ statements regarding drug quantity go

to a material fact, the government has not shown that Rush’s

hearsay testimony is “more probative” than any other

evidence it could have procured using reasonable efforts.

To ensure “equivalent circumstantial guarantees of

trustworthiness” in the context of admitting grand jury

testimony under the residual hearsay exception, Barlow listed

the important factors, including: “the declarant’s relationship

with both the defendant and the government, the declarant’s

motivation to testify before the grand jury, the extent to which

the testimony reflects the declarant’s personal knowledge,

whether the declarant has ever recanted the testimony, and the

existence of corroborating evidence available for crossexamination.” Barlow, 693 F.2d at 962 (emphasis added).

With respect to Dodge’s testimony repeating the statements

of the grand jury witnesses, many of whom were arguably

22 United States v. Darwich Nos. 99-2147; 01-2044

19All grand jury witnesses, other than Easterling and Smith, fall

within this category.

20Even if the hearsay testimony could have been considered reliable

and trustworthy, it still would not be admissible under Rule 807. Rule

807 requires that the “statement is more probative on the point for which

it is offered than any other evidence which the proponent can procure

through reasonable efforts.” In this case the government has not shown

how it exerted reasonable efforts to secure the testimony of the grand jury

witnesses at the evidentiary hearing as requested by Darwich.

coconspirators, this court stated in Gomez-Lemos that there is

“a strong presumption against the trustworthiness of coconspirators’ statements that are made after a conspiracy has

terminated in arrest.” Gomez-Lemos, 939 F.2d at 329. We

further stated that: “outside of the co-conspirator exception

to the hearsay rule (where a statement is made during the

course of the conspiracy and not after it has ended), the

Supreme Court has consistently concluded that the uncrossexamined testimony of an alleged co-conspirator is not

sufficiently reliable to meet the requirement of the

Confrontation Clause.” Id. at 332. Thus, we conclude that

this grand jury testimony, at least with respect to those grand

jury witnesses who did not also testify at the evidentiary

hearing,

19 lacks the necessary reliability to fall within the

residual hearsay exception.20

2. Insufficient Remaining Evidence

The only remaining evidence that the district court can use

to arrive at the fifty-kilogram mark beyond a reasonable doubt

comes from Easterling’s and Smith’s testimony at the

evidentiary hearing, Dodge’s testimony regarding marijuana

seized during the search, and Rush’s testimony regarding his

own purchases. Dodge testified that during the search of the

market approximately 655.4 grams (.655 kilograms) of

marijuana was confiscated. Rush testified that he bought

three to five nickel bags of marijuana “basically” every day

from Darwich over a nine-month period. During the same
Nos. 99-2147; 01-2044 United States v. Darwich 23

213 grams x 7 days x 39 weeks (nine months) = 819 grams (.819

kilograms).

nine months, he also purchased anywhere from a half ounce

to a pound every couple of weeks for further resale. Although

Easterling admitted that there were times when she did not

bag marijuana for Darwich, she estimated that, starting in

September 1997, she worked three to four days a week

bagging nickel bags for Darwich. Easterling attempted to

calculate the amount of marijuana she bagged in terms of

pounds per day but ultimately testified that she filled between

300 and 325 nickel bags each day she worked. Smith testified

that nine out of ten market customers purchased nickel bags

during his shift at the Canfield Market.

We previously have instructed that “when choosing

between a number of plausible estimates of drug quantity, . . .

a court must err on the side of caution.” United States v.

Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S.

906, and 498 U.S. 989, and 498 U.S. 990 (1990); Arredondo

v. United States, 178 F.3d 778, 787 (6th Cir. 1999). Using

this principle as a guide, we must assign equivalent values of

marijuana to the admissible testimony. Dodge’s testimony

can be taken at face value because he attested to an amount of

marijuana that was actually confiscated by the FBI agents.

All the other witnesses provided figures subject to

interpretation, and therefore the results must be cautiously

analyzed. The district court comfortably could have

determined that Rush purchased three nickel bags containing

one gram of marijuana each, seven times a week, for a ninemonth (or thirty-nine week) period, which yields 819 grams

of marijuana (.819 kilograms).21 Applying a formula for the

larger quantities purchased by Rush, the district court could

have estimated conservatively that he bought one half of a

pound, every two weeks, during the nine-month period

(approximately twenty weeks). This equation would yield 10

24 United States v. Darwich Nos. 99-2147; 01-2044

22One kilogram equals 2.2046 pounds.

23300 grams x 3 days x 35 weeks = 31,500 grams (31.5 kilograms).

24While it is true that during the six months that Canfield Market was

under surveillance the market generally was open seven days a week,

Smith’s testimony revealed that the store was closed for extended periods

of time when Darwich was on vacation, when the store was robbed, and

twice when Darwich was in the hospital, once recovering from a gun-shot

wound and once after a suicide attempt. All tolled, Smith accounted for

at least four weeks from 1997 to 1998 when the market was closed.

pounds, which converts to 4.535970 kilograms.

22 With

respect to Easterling’s testimony, a conservative calculation

could find that she bagged 300 nickel bags at one gram of

marijuana each, three times a week, from September 1997

through April 1998 (the end-date of the conspiracy as

specified in the indictment). This equation would yield 31.5

kilograms of bagged marijuana.23 Finally, analyzing Smith’s

testimony conservatively and in keeping with the Probation

Department’s formula, we conclude that if fifty-eight

customers bought nickel bags containing one gram of

marijuana five days per week

24 for the two years of the

conspiracy (104 weeks), the amount of marijuana sold would

total 30.16 kilograms.

Although if we added all of these figures together we would

surpass the fifty kilograms needed, using the rule of Walton,

Darwich’s argument against double-counting has particular

relevance. Darwich argues on appeal that in order to reach

the fifty kilograms beyond a reasonable doubt, the sentencing

court must refrain from considering evidence of bagged

marijuana in conjunction with evidence of purchased

marijuana. Darwich contends that if the court adds all of

these figures to reach a drug quantity, the final drug count

would be inflated because the marijuana bagged for sale is the

same marijuana that was purchased at the market. We agree

with this position and determine that in order to reach the

necessary fifty kilograms beyond a reasonable doubt the
Nos. 99-2147; 01-2044 United States v. Darwich 25

25Even ignoring our duty to “err on the side of caution,” we still fall

short of the necessary fifty kilograms when we use the number of

customers and amount of marijuana consistent with the higher ranges

provided by Smith’s testimony, i.e., assuming sixty-three customers

amount of marijuana sold must be considered separately from

the amount bagged for sale. The proffered evidence shows

that the total amount in bagged marijuana was just over thirty

kilograms, nearly twenty kilograms shy of the fifty-kilogram

mark. The evidence of sales established that Darwich sold

just over thirty-six kilograms of marijuana from the Canfield

Market. Thus, neither of these figures is sufficient to

establish fifty kilograms beyond a reasonable doubt.

The dissent makes three critical errors to reach its

conclusion that drug quantity was established beyond a

reasonable doubt. First, it relies solely on Rush’s hearsay

testimony to establish the drug quantity beyond a reasonable

doubt by finding that it falls within the “statement by a coconspirator” exemption from the hearsay rule. Second, it fails

to address the inadmissibility of Dodge’s hearsay testimony

regarding the grand jury testimony. And third, it neglects the

long-standing principle that a sentencing court is instructed to

“err[] on the side of caution when calculating drug

quantities.” Arredondo, 178 F.3d at 787. The dissent also

hypothesizes that it is feasible to reach the necessary fifty

kilograms through Smith’s testimony alone by deriving a

formula from his testimony regarding the average number of

drug buys during his shift at the Canfield market. In a

footnote, the dissent applies this formula of purchases per

hour to the hours the Canfield market conducted business,

assuming that sales took place at a constant rate throughout

the day. Although the dissent mentions this evidence as an

aside, it is, nonetheless, surprising that the dissent would even

tentatively indicate that such an extrapolation would provide

evidence of drug quantity beyond a reasonable doubt. As

stated above, Smith’s testimony only yields 30.16 kilograms

of marijuana.25 The dissent’s approach makes broad

26 United States v. Darwich Nos. 99-2147; 01-2044

purchased nickel bags containing 1.5 grams of marijuana five days per

week for the two years of the conspiracy establishes only 49.14 kilograms

of marijuana.

26Even though we already have determined that Darwich’s sentence

is in conflict with Apprendi, we still need to address Darwich’s

sufficiency of the evidence challenges to his base offense level because

on remand Darwich’s total offense level can impact his ultimate sentence

provided that the total offense level permits the district court to sentence

him to less than the sixty-month maximum. The sentencing guidelines

require that Darwich must be involved with at least 100 kilograms by a

preponderance of the evidence before Darwich can receive the base

offense level 26 that he was assigned at sentencing.

unfounded assumptions to conclude that Smith’s testimony

alone would suffice.

In conclusion, the district court’s acceptance of hearsay

testimony to reach the necessary fifty kilograms beyond a

reasonable doubt was erroneous. Without establishing that

Darwich was responsible for at least fifty kilograms of

marijuana beyond a reasonable doubt, the court cannot

sentence Darwich under § 841(b)(1)(C), and instead must

sentence him under § 841(b)(1)(D) which establishes a sixtymonth maximum for quantities of marijuana under fifty

kilograms. 21 U.S.C. § 841(b)(1)(D). Therefore, Darwich’s

sentence of eighty-eight months is improper because it

subjects him to a sentence in excess of the statutory maximum

in violation of his constitutional right to have each element of

the offense proved beyond a reasonable doubt.

B. Sufficiency of the Evidence at Sentencing

Darwich, in a series of fact-based objections, challenges the

district court’s finding by a preponderance of the evidence

that he is responsible for 236 kilograms of marijuana over the

length of the conspiracy.

26 Specifically, Darwich argues that

the district court erred by double-counting the amount of

marijuana to reach the necessary drug figures, by failing to

account for interruptions in drug activity, and by relying on
Nos. 99-2147; 01-2044 United States v. Darwich 27

Rush’s purportedly incredible testimony. Although we

addressed some of Darwich’s arguments in our Apprendi

discussion, we now will address them in the context of

whether the district court could properly assign Darwich a

base offense level of 26, which requires finding by a

preponderance of the evidence involvement with more than

100 and less than 400 kilograms of marijuana.

We review for clear error the district court’s factual

findings on drug quantity attributable to a defendant for

sentencing purposes. United States v. Mahaffey, 53 F.3d 128,

131 (6th Cir. 1995); United States v. Walton, 908 F.2d 1289,

1300-01 (6th Cir.), cert. denied, 498 U.S. 989 (1990). “A

finding of fact will only be clearly erroneous when, although

there may be some evidence to support the finding, ‘the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.’”

United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997)

(quoting Anderson v. City of Bessemer, 470 U.S. 564, 573

(1985)), cert. denied, 523 U.S. 1086, and 523 U.S. 1101, and

524 U.S. 920 (1998). If the district court interprets the

evidence in a manner consistent with the record, we are

required to uphold its decision even if we would have reached

the opposite conclusion. Anderson, 470 U.S. at 573-74

(“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly

erroneous.”).

1. Double-Counting at Sentencing

Darwich raises a double-counting argument concerning the

district court’s calculations to establish drug quantity by a

preponderance of the evidence, in which Darwich argues that

the district court improperly combined both bagged and sold

marijuana to reach an inflated quantity. Separating the

evidence of bagged marijuana from the evidence of marijuana

sales, we believe that it is clear that using evidence of the

bagging operation alone results in an easy finding by a

28 United States v. Darwich Nos. 99-2147; 01-2044

271 lb. x 7 days x 13 weeks (3 months) = 91 lbs. (41.2 kilograms).

preponderance of the evidence of at least 100 kilograms of

marijuana.

As discussed in the preceding section, a conservative

estimate from Easterling’s testimony results in a finding that

she bagged 31.5 kilograms of marijuana. In addition, the less

stringent evidentiary standards applicable to sentencing allow

the district court to consider Dodge’s hearsay testimony

reiterating the testimony before the grand jury. Dodge

testified that Arthur Pace told the grand jury that he bagged

one pound of marijuana each night during the fall of 1997.

This yields yet another 41.2 kilograms.

27 Rush’s testimony

repeating his nephews’ statements is also fair game when

establishing drug quantity for sentencing by a preponderance

of the evidence. Rush testified that his nephews bagged a

pound each night for the length of the two-year conspiracy.

Using a mere fraction of this testimony provides adequate

evidence of drug quantity in excess of 100 kilograms. Thus,

the district court did not clearly err in determining that

Darwich’s conspiracy involved at least 100 kilograms of

marijuana.

2. Interruptions in Activity

Darwich argues that the district court’s drug-quantity

findings did not adequately account for periods of time when

the Canfield Market was closed. The district court had

determined that the probation department’s aggregating

formula was sufficient to account for the minor interruptions

cited by Darwich.

The district court did not clearly err when it found Darwich

responsible for a conspiracy involving, by a preponderance of

the evidence, at least 100 kilograms of marijuana. First, the

surveillance of the Canfield Market indicated that the store

was open seven days a week, whereas the probation
Nos. 99-2147; 01-2044 United States v. Darwich 29

department’s formula calculating drug quantity used a fiveday-per-week assumption. It is not clearly erroneous for the

district court to determine that the formula’s use of fewer

days adequately compensates for any periods in which the

market was closed. Second, as stated above, the evidence of

marijuana sales is not necessary for a finding that Darwich’s

conspiracy involved by a preponderance of the evidence more

than 100 kilograms of marijuana because the evidence of

bagged marijuana alone is enough to reach that mark

comfortably. Thus, Darwich’s argument that the Canfield

Market was closed on a number of occasions has no bearing

on whether the bagging operation continued uninterrupted.

3. Unreliable Testimony

Darwich contends that the district court should not have

relied on Rush’s testimony because it was procured by the

government’s promise to Rush of a reduced sentence. We

previously have stated that “[w]e are generally reluctant to set

aside credibility determinations made by the trier of fact, who

has had the opportunity to view the witness on the stand and

assess his demeanor.” Peveler v. United States, 269 F.3d 693,

702 (6th Cir. 2001). In keeping with this principle, we find

no reason to disrupt the district court’s determination that

Rush’s testimony was credible, after the district court had a

first-hand opportunity to observe him.

C. Sentence Enhancements

1. Firearm Enhancement

“A district court's finding that a defendant possessed a

firearm during a drug crime is a factual finding subject to the

clearly erroneous standard of review.” Bartholomew, 310

F.3d at 924 (quotation omitted). “A finding of fact will only

be clearly erroneous when, although there may be some

evidence to support the finding, ‘the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed.’” Latouf, 132 F.3d at 331

30 United States v. Darwich Nos. 99-2147; 01-2044

(quoting Anderson v. City of Bessemer, 470 U.S. 564, 573

(1985)). We will uphold the district court’s decision as long

as it has interpreted the evidence in a manner consistent with

the record. Anderson, 470 U.S. at 573-74. “Where there are

two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Id. at 574.

U.S.S.G. § 2D1.1(b)(1) orders sentencing courts to increase

the defendant’s sentence by two levels “[i]f a dangerous

weapon (including a firearm) was possessed.” U.S.S.G.

§ 2D1.1(b)(1) (2001). The sentencing court is instructed to

apply the two-level enhancement when a weapon is present,

“unless it is clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3.

This requirement for a strict sentence enhancement “reflects

the increased danger of violence when drug traffickers

possess weapons.” Id. The government bears the burden of

showing by a preponderance of the evidence that the

defendant either “actually or constructively possessed the

weapon.” United States v. Hough, 276 F.3d 884, 894 (6th

Cir.), cert. denied, 535 U.S. 1089, and -- U.S. --, 123 S. Ct.

199 (2002). “Constructive possession of an item is the

ownership, or dominion or control over the item itself, or

dominion over the premises where the item is located.”

United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert.

denied, 519 U.S. 858 (1996) (citation and internal quotations

omitted). Once the government meets its burden of showing

that the defendant possessed a weapon, a presumption arises

that “the weapon was connected to the offense.” Hough, 276

F.3d at 894. The burden then shifts to the defendant to “show

that it was ‘clearly improbable’ that the weapon was

connected with the crime.” Id. The district court applies the

two-level enhancement if the defendant fails to meet this

burden. United States v. Miggins, 302 F.3d 384, 391 (6th

Cir.), cert. denied, -- U.S. --, 123 S. Ct. 712 (2002), and --

U.S. --, 123 S. Ct. 909, and -- U.S. --, 123 S. Ct. 1772 (2003).

The PSR recommended an enhancement based upon the

seven firearms found pursuant to lawful searches of
Nos. 99-2147; 01-2044 United States v. Darwich 31

Darwich’s home. The district court accepted these

recommendations. On appeal, Darwich contends that the

weapons found in his home were not sufficiently linked to the

drug activities that took place at the Canfield Market. In

support of his position, Darwich cites United States v. Peters,

15 F.3d 540 (6th Cir. 1994), a case involving cocaine seized

in plain view from the top of a dresser. However, in Peters,

the sentencing court did not apply the firearm enhancement

even though a pistol with a fully loaded magazine was found

in a zippered pouch in the dresser drawer, because it

determined that the pistol was not connected to the drug

offense. Id. at 546. We upheld the district court’s decision,

noting our deferential posture when reviewing for clear error.

Id.

While Darwich might be correct in his position that the

government failed to demonstrate how these weapons were

connected to the Canfield Market activities, the weapons

surely could have been connected to the bagging operation

that took place in his home. Because the weapons were found

in Darwich’s home where the drugs were bagged, a

presumption arose that “the weapon[s were] connected to the

offense.” Hough, 276 F.3d at 894. Once this presumption

takes effect, the burden was on Darwich to “show that it was

‘clearly improbable’ that the weapon[s were] connected with

the crime.” Id. Darwich argues that the connection of the

weapons to the drugs was tenuous, but fails to show that the

presumed connection was “clearly improbable.” Thus, the

district court did not clearly err in applying the two-level

firearm enhancement.

2. Leadership Enhancement

U.S.S.G. § 3B1.1(a) provides that a defendant’s sentence

can be enhanced by four levels “[i]f the defendant was an

organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive.” U.S.S.G.

§ 3B1.1(a). Subsection (c) provides for a two-level

enhancement if the criminal activity involved less than five

32 United States v. Darwich Nos. 99-2147; 01-2044

participants or if it could not be considered extensive.

U.S.S.G. § 3B1.1(c). We review factual findings made by the

district court when determining the appropriate sentence for

clear error. United States v. Mahaffey, 53 F.3d 128, 131 (6th

Cir. 1995).

In the PSR, the probation department recommended that the

district court give Darwich a four-point enhancement for his

leadership role in the offense. Darwich objected to this

enhancement. At sentencing, the district judge agreed with

the probation department, overruled Darwich’s objection, and

applied the four-level enhancement. Specifically, the district

court stated in response to Darwich’s objections that

“paragraph twenty-six speaks of a four point enhancement for

adjustment in the role of the offense. And I’m denying the

objections to that enhancement for the reasons stated by the

United States Probation Department.” J.A. at 507

(Sentencing Tr.).

On appeal, Darwich argues that the district court did not

make specific factual findings on the question of leadership

and instead relied on the PSR in deciding to apply the

enhancement. At the time the district court held Darwich’s

sentencing hearing, Rule 32(c)(1) of the Federal Rules of

Criminal Procedure provided that “[f]or each matter

controverted, the court must make either a finding on the

allegation or a determination that no finding is necessary

because the controverted matter will not be taken into account

in, or will not affect, sentencing.” Fed. R. Crim. P. 32(c)(1)

(1999). As discerned by our previous cases, the purpose of

this rule was “to ensure that sentencing is based on reliable

facts found by the court itself after deliberation,” and thus, the

district court cannot “summarily adopt the factual findings in

the presentence report or simply declare that the facts are

supported by a preponderance of the evidence.” United States

v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002). This court

required “literal compliance” with this rule in order to

enhance the accuracy of the sentence and the clarity of the
Nos. 99-2147; 01-2044 United States v. Darwich 33

record. United States v. Parrott, 148 F.3d 629, 633 (6th Cir.

1998).

On December 1, 2002, amendments to the Federal Rules of

Criminal Procedure replacedRule 32(c)(1)with Rule 32(i)(3).

Rule 32(i)(3)(B) states that “for any disputed portion of the

presentence report or other controverted matter” during

sentencing, the court must “rule on the dispute or determine

that a ruling is unnecessary either because the matter will not

affect sentencing, or because the court will not consider the

matter in sentencing.” Fed. R. Crim. P. 32(i)(3) (2003). This

new rule attempts to eliminate confusion over whether courts

were required to make rulings on every objection to the PSR

or only those that have the potential to affect the sentence.

Fed. R. Crim. P. 32(i)(3) advisory committee’s note (2002).

The new rule makes clear that controverted matters at

sentencing only require a ruling if the disputed matter will

affect the eventual sentence. Prior to these revisions, we

already had interpreted the rule in a manner consistent with

Rule 32(i)(3)’s recent clarification. See, e.g., United States v.

Hurst, 228 F.3d 751, 760 (6th Cir. 2000) (requiring a

defendant to “expressly call [controverted matters] to the

court’s attention” before Rule 32(c)(1) would apply); Parrott,

148 F.3d at 634 (holding that failure to follow Rule 32(c)(1)

is harmless error when resolution of the controverted matter

would not affect the defendant’s sentence).

Because the matter of leadership role was disputed by

Darwich in his objections to the PSR, the district court had an

obligation under Rule 32(i)(3) to issue a ruling on the

disputed matter unless the matter would not affect sentencing

or would not be considered in sentencing. Here, the disputed

matter — whether Darwich was an organizer or leader of this

marijuana conspiracy — absolutely would affect sentencing

because without the four-point enhancement provided in the

guidelines, Darwich would have a total offense level of 25

which allows for a sentence of as little as fifty-seven months.

The district court never issued a specific ruling on whether

the criminal activity involved five or more individuals or

34 United States v. Darwich Nos. 99-2147; 01-2044

28The district court attributed 236 kilograms to Darwich noting that

its “findings in this matter are based on the testimony of several witnesses,

all of which demonstrate that the Defendant was a wholesaler and retailer

of marijuana, selling a great deal of marijuana over a long period.” J.A.

at 561 (7/10/01 Dist. Ct. Op. & Or.). The court also commented that it

was “impressed by the testimony which showed that Canfield Market was

basically a drug operation.” Id. at 560. The district court further

commented on the length of the conspiracy and the number of small and

large quantity sales. Id. We determine that these statements, without

more, are insufficient to constitute a ruling satisfying Rule 32(i)(3) on

whether the criminal activity was extensive or involved more than five

people as is required for an enhancement under § 3B1.1(a).

whether it could be considered extensive. In fact, even

though Darwich objected to the PSR’s role-in-the-offense

enhancement, the district court neglected to address this

objection in its opinion. Instead, the district court’s opinion

addressed solely the issue of whether 236 kilograms of

marijuana could be attributed to Darwich. The district court

embedded any potential reasoned explanation for its

resolution of the disputed matter within its explanation of

how the drug quantity was established beyond a reasonable

doubt.28 At the subsequent sentencing hearing, the district

court likewise failed to issue a ruling on this disputed matter.

In ordering a four-level enhancement, the district court

exclusively relied on the reasoning of the probation

department. However, we recently reiterated that exclusive

reliance on the PSR when a matter is in dispute cannot be

considered a ruling. See generally United States v. Treadway,

328 F.3d 878, 886 (6th Cir. 2003) (noting that Rule 32(i)(3)’s

predecessor, Rule 32(c)(1), in conjunction with U.S.S.G.

§ 6A1.3, prohibits reliance on the PSR when factual matters

are in dispute). Even though Treadway applied Rule 32(c)(1),

we hold that a Rule 32(i)(3) ruling, similarly, requires more

than blind reliance on the PSR.

Because the PSR cannot be substituted for a ruling on a

disputed matter and because the district court did not issue a

ruling on the disputed matter of whether Darwich’s illegal

drug activity was extensive or involved more than five
Nos. 99-2147; 01-2044 United States v. Darwich 35

individuals, we conclude that the district court failed to

comply with Rule 32(i)(3). Accordingly, on remand the

district court should issue a ruling on the disputed matter of

whether Darwich deserves an enhancement for role in the

offense in accordance with Rule 32(i)(3).

III. CONCLUSION

Because the district court could not properly conclude that

the evidence established fifty kilograms beyond a reasonable

doubt, we REVERSE the district court’s determination of the

amount of drugs, VACATE Darwich’s sentence based both

on the insufficient drug quantity conclusion and also on the

district court’s failure to issue a ruling on the disputed matter

of whether Darwich deserved a leadership enhancement, and

REMAND this case to the district court with instructions to

proceed in accordance with this opinion and sentence

Darwich to a prison term not exceeding sixty months.

36 United States v. Darwich Nos. 99-2147; 01-2044

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

KENNEDY, Circuit Judge, concurring in part and

dissenting in part. Defendant raised no hearsay objection of

any kind at his sentencing hearing, including no objection to

Rush’s testimony, and indeed stipulated to the admission of

extensive grand jury testimony, all of it hearsay. He did not

raise the hearsay issue before the district court on his

resentencing after remand following Apprendi. He did not

raise the issue in his appellate briefs. 

The majority holds that defendant did not forfeit or waive

the issue because in his Supplement to Sentencing

Memorandum and Objections (to the presentence report) he

raised a question as to the reliability of Rush’s nephews’

hearsay statements. However, he raised no objection to their

admissibility. There was nothing to alert the district court to

the present hearsay issue. The issue was first raised by this

court at oral argument. Defendant is therefore limited to

plain error review. Federal Rule of Evidence 103(d). To

establish plain error, a claimant must show that there is

“(1) error, (2) that is plain, . . . (3) that affects substantial

rights,” and (4) that “seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” United States

v. Cotton, 535 U.S. 625, 631 (2002) (internal quotation marks

omitted); Johnson v. United States, 520 U.S. 461, 466-67

(1997). 

The district court’s reliance on Orlando Rush’s testimony

was not plain error because Rush’s testimony was not plainly

hearsay. Federal Rule of Evidence 801(d)(2)(E) provides that

a statement is not hearsay if it is “a statement by a coconspirator of a party during the course and in furtherance of

the conspiracy.” Rush’s nephews bagged illegal drugs for

Darwich, and thus were co-conspirators. The majority agrees

that Rush was a co-conspirator since he admitted to re-selling
Nos. 99-2147; 01-2044 United States v. Darwich 37

drugs purchased from Darwich. He also aided the conspiracy

by providing transportation for his nephews to Darwich’s

home with knowledge that they were paid to bag drugs there.

Although we have no specific finding that the nephews’

statements were made in furtherance of the conspiracy, it

would not have been plain error for the district court to so

find. A statement is made in furtherance of a conspiracy if it

is intended to promote the objectives of the conspiracy.

United States v. Hamilton, 689 F.2d 1262, 1270 (6th Cir.

1982). This includes statements “made to keep a conspirator

abreast of a co-conspirator’s activities . . . .” United States v.

Rios, 842 F.2d 868, 874 (6th Cir. 1988) (citing United States

v. Layton, 720 F.2d 548, 557 (9th Cir. 1983)) (internal

quotation marks omitted). Rush’s nephews kept Rush, a coconspirator, apprised of the quantity of drugs they were

bagging for Darwich. We have affirmed a district court’s

ruling in a similar instance in an unpublished decision, United

States v. Brooks, 41 Fed. Appx. 718, 723 (6th Cir. 2002). In

Brooks, the district court admitted the statements of a coconspirator that he and the defendant had “gone to Knoxville

to cook some methamphetamine.” Id. We held that, because

such statements could be interpreted as keeping the listener

abreast of the activities of the conspirators, they were

admissible under Rule 801(d)(2)(E). Id. Based on this case

law, it would not have been plain error to hold that Rush’s

statements were admissible non-hearsay.

Orlando Rush’s testimony about his nephews’ statements

is alone sufficient to affirm both the 50 kilograms beyond a

reasonable doubt and 100 kilograms by a preponderance of

the evidence. Rush testified that his nephews told him they

bagged one pound per day from “some time” in 1996 until he

surrendered in 1998 – dates roughly consistent with the 104

week span within the conspiracy. He testified he knew that

the nephews worked about every night since he dropped them

off about every day. Based on the five-day-per-week

38 United States v. Darwich Nos. 99-2147; 01-2044

1

Had the defendant objected to Rush’s hearsay testimony or not

stipulated to Agent Dodge’s testimony or the grand jury transcripts, there

is at least some indication in the record that one of the nephews could

have been called as a witness. (J.A. 129)

2

The stipulation would have capped the sentence under the cap in the

plea agreement.

assumption, this evidence alone supports a finding of 236

kilograms of marijuana.1 

Because this evidence is more than sufficient to insulate the

district court’s quantity calculation from possible Apprendi

error, I would not need to reach the question of whether

reliance on Agent Dodge’s testimony about the conspiracy

and transcripts of the grand jury proceedings would have been

plain error. Any hypothetical error is harmless. However, I

cannot see how accepting a stipulation to grand jury

testimony can be plain error or even error under the

circumstances here. 

Defendant cannot establish that his rights are substantially

affected or the fairness of the proceedings significantly

affected by any error here, even if one found it did occur.

After the remand, the defendant and the government sought

to have the district court accept a joint stipulation that the

government would be able to prove that defendant trafficked

between 80 and 100 kilograms of marijuana.

While the district judge rejected the stipulation, holding

that it was his responsibility under the sentencing guidelines

to determine the amount, and instead conducted the

evidentiary hearing,2 that defendant was willing to stipulate

to that amount is persuasive that neither his rights nor the
Nos. 99-2147; 01-2044 United States v. Darwich 39

3

Further, based on Tom Smith’s testimony, up to 79 kilograms can

be attributed to Darwich based on nickel bag sales alone. Smith testified

that 90 percent of Canfield Market’s customers purchased nickel bags.

His testimony established that between 65 and 70 customers came to the

market during his shift, which was from 5:00 p.m. to 9:00 p.m., closing

time. He further testified that the market typically opened at 11:00 a.m.

Assuming a relatively constant rate of patronage throughout the day, the

Canfield Market had approximately16 customers per hour, and 160

customers per day. If 90 percent of its 160 customers per day bought onegram nickel bags five days per week, then over the course of the

conspiracy Darwich sold 79 kilograms in nickel bags alone. 

fairness and integrity of the proceeding are substantially

affected by a finding of 50 kilograms.

3

For the foregoing reasons, I dissent from this portion of the

court’s decision.