1 R E COM M E NDE D FOR F ULL-TEXT PUBLICAT ION P ur suan t t o Si x t h Ci rc ui t R ul e 2 0 6

E L E C TR O N I C C I TAT I O N : 2003 F E D App . 0245P ( 6th C ir .) F il e N a me : 03a 0245p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

M IKE D ARWICH , Defenda nt-Appel

lant. X - - - -
> , - - N Nos. 99-2147; 01-2044

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 98-80508—Lawrenc e P. Zatkoff, Chief District Judge.

Argued: October 31, 2002 Decided and Filed: July 24, 2003

Befor e: KEI TH, KENN

EDY, and MOORE, Cir

cuit Judges.

_________________ COUNSEL

ARGUED: Robert M. Morgan, Detroit, Michigan, for Appellan t. Kathlee

n Moro Ne si, ASSI STA NT UNITED STATES ATTORNEY, Detroit, Michigan, for Appe llee. ON BRIE F: Robert M. Morgan, Detroit, Michigan, f o r 2 United States v. Darwich Nos. 99-2147; 01-2044

Appel lan t. Kathleen Moro Nesi, ASSISTANT UNI TED STATES ATTORNEY, Detroit, Michigan, for Appellee.
MOORE, J., delivered the opinion of the court, in which KEITH, J., joined. KENNEDY, J. (pp. 3 6-39), delivered a separa te opinion

concurr ing in pa rt and dis senting

in part.

_________________ OPINION

_________________ KAREN NELSO

N MOORE, Ci

rcuit Judg e. Defe

ndantAppellant Mike Darwich (“ Darw ich”) appeals from the eighty- eight

month s entence imposed by

the district court after he was c onvicted

of conspi racy to distribu

te marij uana inviolation of 21 U.S.C. § 846 , an d after he was su

bject to criminal forfeiture pursuant to 21 U .S.C. § 853. Darwich challenges the standard

of proof used to establish drug quant ity for se ntenc ing, the sufficiency of the evidence used to prove drug q ua ntity, and the rece ipt of firearm and leadership-role

sentenc e enhancements

. Darw ich was indicted for v arious dr ug-re lated cr

imes. Pursuant to a plea agreement, Dar wich pleaded

guilt y to the conspiracy

to distribute mar ijua na charge and ag reed to the criminal forfeiture. The plea agreement, expressly noting the parties’ d eci sion to present evidence on the amount of
mar ijuana

at issue, stated tha

t Darwic h’s prison sentenc e would notexceed

ninety-six months. Thereafter, a probation officer prepared a presentence

investigative report (“PSR”) calculatingDarwich’s base offense l evel at 26, to which Darwich objecte d. The PSR a

rrived a t this base offense level calculation

th roug h the use of a drug quantity averaging for m ula that held Darwich responsible for five pounds ofNos. 99-2147; 01-2044 United States v. Darwich 3

1 The formul a used was set fort h in an addendum to the PSR and was accepted by both distri ct court opin ion s: “453 .6 g rams (equivalent t o one pound of mari

juana) x 5 days perweek x 52 weeks per y ear x 2 years that the conspira cy span ned . Thi s re sul ted i n a t otal of 235, 872 grams of marijuana divi ded by 1,000 (grams to kilograms conversion) equals a total of 236 kilogra ms o f mariju ana.” Join t Appendi x (“ J.A. ”) at 550 (7/ 10/01 D ist. Ct . Op . & Or. ). Uni te d St at es Se nt en ci ng Gui del in es (“ U.S .S .G. ” ) §§ 2D1.1(a) (3) an d 2D1.1(c) (7) provide that a base offense level o f 26 is require d for

off ense s i nvol ving at le ast 100 but le ss th an 400 ki log rams of marijuana. U.S.S.G. §§ 2D1 .1(a)(3), 2D1.1(c)(7) (1998 ). mar ijuana

pe r w ee k f

or th e l en gt h o f t he co ns pi ra cy. 1 Th e districtcourt agreed with th e PSR and determined that Darwich’s conspiracy

involved 236 kilograms of marijuana. Darwich was sente

nced to e ighty

-eight months in

prison and four years of supervised release, and he immediately filed a n appeal. Subse quent to the filing of the appellate briefs but before oral argument, the Supreme Court decided Apprendi v. New Jersey , 530 U.S. 4 66 (2000) . In li ght of the Co urt’s decisionin Apprend

i an d the go vernm ent’s failu re to al lege any specific quantity of ma

rijuana in the ind ictment, b oth Darw ich an d the go vernmen t filed mot

ions in this c ourt 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 districtcourt declined to consider the parties’ sentence stipulation and dete

rmined th at the evidence that the conspiracy

involved 2 36 kilogr

ams of marijuana was established

beyond a re asonable doubt. Darwich, thereafter, filed this curre nt appeal. We now REVERSE the district court’s determinatio n of the amount of drugs, VACATE Darwich’s sentenc e becau se it was error for the district court to find that the necessary

drug quantity was proven beyond a
reasona ble doubtand because the district court failed to issue
a ruling on the disputed matter of Darwich’s leadership role, and REMAND for res entenci ng to no more than sixty months in accordance with this opinion. 4 United States v. Darwich Nos. 99-2147; 01-2044

I. BACKGROUND

Darw ich owned an

d operat ed the Ca

nfield Ma

rket in Detroit, Michigan. The market sold snacks and al coholi c b everages but did not sell any milk, egg s, or brea d. Marke t customers also were able to purchase nickel bag s of marijuana fromDarwich. According to Tom Smith (“Smith”), a former employ ee of the market, anestimated nine out of ten market customers purch ased marijuana from Darwich. Dar wich stored the marijuana on his person and in Prin gles brand potato chip cans on the store sh elves. The market’s covert operati on s were uncovered when the F BI investigate d whether police officers were

protecting a drug business at the market.

OnJune 18, 1998, Darwichwas indicted for conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 ; use or carry ing of a firearm in relation to a drug tra ffickingcrime in violation of 18 U.S.C. § 924(c)(1) & (2); po ssess ion with intentto distribute marijuana in vio lation of 2 1 U.S.C. § 841(a)(1); two counts of maintaining a place f or distributing and using m arijuana in violation of 21 U.S.C. § 856; and criminal forfeiture pursuant to 21 U.S.C . § 85 3. The indictmentalleged that the conspira cy to ok place between March 1996 and April 1998. Darwich subsequently entered into a Rul e 11 plea agreement on the marijuana conspiracy charges un der 21 U. S.C. § 846 and agreed to the criminal forfeiture under 21 U.S.C. § 853. The government dismissed all other charges broug

ht against Darwich. Altho ugh the parties did not agree on a comput at ion of the sentencing guidelines or a bas e offen se lev el, th ey agr eed to present evidence to the court fo r sentencing purposes, and the plea agreement

stated that Darwich’s prison sentence would not exceed ni nety-six months.

A probation officer’ s calculations for the PSR set Darwich’s base offens e leve l at 26, for distribution of more than100 b ut less tha

n 400 kilog

rams of marijuana. Darwich objected to this base

offense level ca lcula tio n and togetherNos. 99-2147; 01-2044 United States v. Darwich 5

2 Before the gran d jury , Eas ter li ng t est if ied t hat t

here were other bag gers wh om D arwich referre d to a s the “ca mel p eop le.” with the United S tat es Attorney made an unsuccessful attempt to stipulate to a specific sentence at thehearing on Darwich’s objections to th e PSR. The district court declined to accept the stip ulat ed sentence, and instead held an evidentiary hearing on the issue of mar

ijuana qu

antity . At this evidentiary

hearing , the cour

t heard t esti mo ny from four individua ls, involved w i th or knowledgeable of the
co ns pi ra cy, ad dr es si ng th e q ue st io n o f d ru g q ua nt it y.
The first witness was Agent Ky le Dodge (“Dodge” ). A substantial portion of Dodge’s testimony consisted

of h is summary recitation of the witnesses’ testim ony before the grand jury. Dod ge testified that: (1) Ira Ear ehart testified that
onten occasions he purchased marijuana in quantities ranging froma nickel bag to one-quarter of a pound, a nd that on twenty occasions he purchased pound quantities; (2) L eon Li ppet t(“L ippett”)testifie d that eig ht out of te

n Canfiel d Market customers purchased

marijuana; (3) Arnita Easterling (“Easterling”) testified that sometime in or around July 1997 she began

bagg ing nick

el bags of mariju

ana th r ee times a week and that other “camel people” 2 also bagged marijuana; (4) Arthur Pace testified that in the fal l of 1 997 he bagged a pound of marijuana into nickel bags each nig ht; (5) Jillian Drappeaux(“Drappeaux”) testified that she pu r chased
mar ijuana

from the market a

pproximate ly twenty

times in quantities of

a pound or less; (6) Odestser Pace testified that
as a market employ

ee she so ld nickel bags o f marijuana; ( 7) Jason Alquiza

(“Alquiza

”) testif ied that h e regu

larly purchased

marijuana at the market

inquantities up to a pound; (8) Smith, a market employee, testified tha t during his shift nine out of ten customers came to pu rchase m arijuana and that ordinarily there

were sixty-five to sevent y market customers dur ing his shift; and (9) Kevin Dempsey testified that he worked at the m arket and assisted Darwich with the sale of marijuana. Dodge provided add iti onal drug

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

3 It is uncl ear f

rom Rush ’s tes ti mony pr ecis ely how much marijuana he purchas ed “basi call y every day.” When asked how many nickelbags he would purc hase a t one tim e, Ru sh rep lied: “So metim es three to five bags, something li ke that.” J. A. at 441 (M ot. Hr’g, Rush Direct).

4 On cross exam ination, defense coun sel imp each ed R ush with a pri or affidavit from hi s own arrest in which he t old the arresti ng officers that he had been sel lin g mariju ana over the pa st two m onths o nly. J.A. at 452- 53 (Mo t. Hr’g, Rush Cross Exam.).

5 Spe cifically, Rush testi fied that “[S]ometimes when I dropped one of them off they

tell me that, you kn ow, if I picked them up I s een them the next day, tha t I packed u p a pound or

I did two pounds or a pound and

a half , li ke that , you k

now.” J. A. at 443 (M ot. H r’g, Rus h Dir ect). On recross examinat ion Rush s tate d that his nephews worked “[p]ossibly every night beca use [he ] wou ld dro p them off just a bout ev ery day, every night.” J.A. at 456 (Mo t. Hr’g, Rush Re-cross Exam.). evidence, informing

the sente ncing c ourt that a

pproximate ly 655.4 g ram s of marijuana were uncovered a t the market during the search.

The next witness to testify was Orland o Rush(“Rush”), a federalprisoner incarcerated for possession with inten t t o distribute crack cocai ne. The government secured Rush’s testimony against Darwich by

agreeing to re c ommend that Rush be released on bond and that his sentence be reduc ed to time served. R

ush test ified that he bought nickel bags from Darwich for personal use “ba sical ly e ve ry d ay” 3 over the
course of ap pro ximately

nine month s prior to R

ush’s ar rest. Joint Appendix (“J.A.”) at 440 (Mot. Hr’g, Rush Direct). He also testified that when he needed extra mone

y he would buy anywher e from one-half of an

ounce to one pound for further resale during t he same n ine-month

timeframe. 4 Rush further testified that Darwich sold approximat el y a pound of marijuana ea ch day. When questioned a s to how he arrived at this figure, Rush noted that his nephews (also known as the “camel peopl e”) wor ked as marij uana b agge rs at Darwich’s home an d that they would sometimes tell him that they bagg ed from one to two p ounds at ni ght. 5Nos. 99-2147; 01-2044 United States v. Darwich 7

6 Smith worked the evening shift from 5 :00 p .m. until clo sing. Sm ith test ifi ed tha t Darw ich clos ed th e st ore bet ween 10: 00 and 11: 00 p. m

. However, Dod ge was r ecalled at the end of t he evidentiary hearing and test ifi ed that

the electronic surveillance ind icated the store close d almo st

ever y n ig ht at 9:00 p.m. Darwich called the next witne ss, Easte rli ng. Easterling testi fied that she b egan b aggi

ng mari juana in Se

ptemb e r 1997. She also testified that she did not b ag e very day and that there w ere p eriods of time when she did not bag marijuana at all. Easterling indicated that she worked three or four days eac h week. Although Easterling never weighed the marijuana, she initia

lly e stimated t

hat she ba gged one-hal f of
a pound to one pound on the days when she worked. After further probi ng, Easterl ing admi tted that i tactually may

have been les s than one -quarte r of a pou nd and tha

t she rea lly d id not know the precise figure. In addition, Easterling testified that during her twelve-hour work day s, she never saw any

one besides Da rw ic h a nd De mp se y, t he re by elim inating any possibility

that she worked in c onjunction wit h Rus h’s nephews

. Inresponse to a question from the judge, Easterling responded

that she f illed 300 to

325 ni ck el ba gs on th e d ays when she worked.

The final witn

ess was Smith, a Canfield Market employe e. Ondirect examination, Smith admitted that he was not at the store every da

y and that there were times when he wasabsent due to vacat

ion, hospit

alization, and his othe r jobs. He also testif iedthat between 1997 and the early part of 1998, the
s tore was closed for at least four weeks. Smith admitte d seeingDarwic h sell nicke l bags of marijuana, but testified that he never saw Darwich distribut e a ny l arger amounts. Alth ough Smith admitted that his statement before the grand jury that nine out of ten customers bought mari juana w as a guess, oncross examination he repe ated tha t during his shift, 6 nine out of

ten customers boug

ht nickel bags.

At the completion of the four witnesses’ testimony , the
court in structed

the part ies to submi

t briefs a rguing their 8 United States v. Darwich Nos. 99-2147; 01-2044

positions on sentencing. Ultimately , the district court agreed with the PSR cal culation s and the governme nt whe n it determined

that Darwich was responsible for the distribution of 236 kilograms of marijuana. The district court explained its r eason ing:

Several witnesses’ testimony established

that Defendant sold marijuana in large quantities. Earhardt’s [sic] gra nd jury testimony

e stablishe d that he b ought “ nickel ba gs” fromDefendant 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 fromDefe

ndan t more than twen ty times . Alqu

iza testified before the grand jury

that he was a regular purchaser of marijuana at the Ca nfield Ma rket, purchasingup to a pound at a time. Finally, Orlando Ru shtestified at the evidentiary hearing that he wo ul d purchas e anywher

e from on e ounce to one pound of marijuana from Defendant for resale, plus smaller amounts for personal use.

Inaddition t o Defendant’s large-qua ntity sales, the te stimony at the hearing demonstrated that Defe n dan t also sold a gr

eat dea l of marij uana in smaller quantities. Arthur Pace’s grand jury

testimony established that Defenda nt paid him $300 a week to bag marijuana. Easterlingtestified at the he aring that she would bag anywher e from a ha

lf pound to a pound of marijuana for Defend ant. Furt her 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 t

he Canfield Market was basically a drug operation and not a mark e t selling legitimate consumer goods

. Li ppett testified before the grand jury that eight
o f ten cu stomers a

t the Canf

ield Mark

et were there to purchas e marijuana. Smith testified before the grand jury that nine of te

n custome

rs at t he Can field Market purchased

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

the hearing , again

stating that nin e of ten customers purchased

marijuana. Smith als o tes tified that the Canfield Market did not

have any milk, eggs, or bread

in the store.

Fi na ll y, Rush testified that his nephews worked for Defendant

for about two ye ars. Rush’s nephews worked every night, a nd Rush was awa re of this fact be cause

he would drive h is nep hews to De fendant ’s house. Rush learned, through

his nephe

ws, th at they would package between one and two pounds of marijuana a night for Defend ant.
United States v. Darwich , No. 98-80508, at 10-11 (Sept. 30, 1999).

OnOctober 4, 1999, Darwich was sentence d to eighty-e ight months in prison and f

ou r ye ars of supervised release. That
same day, Dar

wich filed a notice of appeal to this court. The central argume

nt he rai sed in

his appellate brief was that even thou gh the Unite d States At torney and Da

rwich had stipulated to a base-offense-level ca lculation, the district court predetermined

the sentence Darwich would rece ive based on the ninety-six month figure in the p lea agreement without consideringthe stipulation or the testimony at the evidentiary hearin g. Specifically, the district judg e said on the record, “I took aplea whe

rein the Court was under the impression that

n inety -six mo nt hs w as t he c ap a nd t hat ’s w hat I think i s appropr iate in this cas e.” J.A. a t 4 98 (Mot. Hr’ g). In contras t, the government

argue d that the

district c ourt mere ly declined to accept the parties’ pro ffered modified plea agreement

which stipulated the sentence and instead the court affirmed its adherence to the ninety -six month cap prov ided inthe original Rule 11 plea agree ment . I n essence, the government

argued, the district court merely refused t o surrender its fu

nction of determining the appropriate sentence

. After the government and

Darwich filed their briefs for the first appeal but before oral arg ument, the Supreme Court 10 United States v. Darwich Nos. 99-2147; 01-2044

7 Strayh orn concludes that on rem and a district

court can correct

an App rendi error i n the gu ilt y plea c ontext

by deter

mining the nec essary drug quan tity under

the proper beyond- a-r eason able- doubt s tandard or by adhe ring to 21 U .S.C. § 84 1(b)(1 )(D) and the Sentencing G uidelines t o resent ence the de fenda nt. United States v. Strayh orn , 250 F. 3d 462, 471 (6th Cir. 2001).

8 Th e origin al app eal in this case was numbered No. 99-2147. Aft er the dist rict judge is sued i ts secon d opini on on re mand, the parties moved to recallthe mandat e in t he 99-2147 appeal, and a divi ded pan el of thi s court gran ted t

he mot ion to recal l th e mandate. On November 29, 2001,

we grante d D arwich ’s motio n to co nsolid ate the 99 -214 7 ap pea l with his appeal fr om the dis tri ct c ourt ’s secon d opini on on re mand. decided Apprendi . In li ght of the Court’s decision in Apprendiand the govern ment’ s fail ure to allege any specific quantity of marijuana in the indictment, both Darwich and the government

filed motions in this court waiving oral argument and requestingthat 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 mot io n was granted, and on re

mand, the district c ourt ada

mantly declined to resente nce Dar wich pur suant to§ 841(b)(1)(D). The court stated that it had expended reso

urces on Darwich’s case

and had found that he w as resp onsible for 236 kilograms of marijuana. In its

opinion iss

ued on July

10, 2001, and

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

overru le d on other grounds by United States v. Leachman
, 309 F.3d 377 (6th Cir. 2002), 7 the distri ct court d ete rmined that, althoug

h quantity was not alleged in the indictment, the evidence on quantit

y w as esta

bl ished bey

ond a rea sonable doubt. The district court re lied on the same ana

lys is containe d i n its September 30, 1999 opinion and concluded that Darwich was responsible bey ond 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 impr isonmentbased on

its deter mination th

at the qua

ntity evidenc e was pr

oved bey ond a rea sonable d

oubt. 8Nos. 99-2147; 01-2044 United States v. Darwich 11

9 If the di stri ct co urt coul d not f ind f if ty kil ograms beyond a
reaso nab le doub t, then the dist ric t court w ould have b een un able to senten ce Darwich under § 841 (b)(1)(C) with a maximum se nten ce of twenty years and inst ead would have had to sent ence him un der § 841(b)(1)(D ). Sect ion 841( b)(1) (D) prov ides for a maximum sen tence of five years ( or sixty months) when th e amount of marijuana est ablis hed is less than fifty kilog rams . Thu s, withou t finding b eyon d a re ason able doub t the nec essary

fif ty ki lograms t o bring Darwi ch’s senten ce wi thi n the purv iew of § 841 (b)(1)(C), Darwich’ s eigh ty- eight month sen tence
wou ld viola te the sixty-mon th statutor y maxim um co ntained in § 841(b )(1)(D). II. ANALY SIS

A. Apprendi

Error

The district court on remand chose to reassess the evidence against Darwich and determined that the same evidence that established

Darwi ch ’s involvement with at least 100 kilogra ms of marijuana by a preponde rance of the evidence pre- Apprendiwas suffici ent to mee t the beyond-a-reasonabledoubtrequire

ment post-

Apprendi . In ord er for

the district court to have reached this conclusion, i t m ust have found Darwich responsible for at

least fif ty k ilogra ms of marijuana beyond a reasonable dou

bt, 9 fo r o therwise his eighty-eight month sentence would have exceeded the statutory maximum alleged in the indictment. To arrive at this conclusion, the districtcourt re lied on the same evidence that it used when it found by a preponde

rance of the evidence that Darwich was responsi ble f or 236 kilograms of marijuana, which included substantial hearsa

y te stimony . In th

is consolid

ated app eal, Darwich argues that the district court improper ly concluded that the drug quantity necessa ry to se nt en ce hi m t o e ig ht yeight months in pr

ison pursu

ant 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 re asonable doubt. Thus , our analy sis will focus on the spe cific question o f whethe r a distri ct court ’s use of hearsay testimony to e st ablish drug quantity be yond a
reasona ble doubt violates Apprendi . This is a question of first impression in the co

urts of a ppeals. 12 United States v. Darwich Nos. 99-2147; 01-2044

10 Leachman parti ally

overrul ed a number of case s in this circuit, see, e.g. , United States v. Harper , 246 F. 3d 520 (6th Cir. 2001), and United States v. Humphrey , 28 7 F.3d 422 (6th Cir. 2002), to the ext ent that t he Supr eme Court in Harris v. United Stat es , - - U.S. -- , 122 S. Ct. 2406 (2002), held tha t Apprendi ’s prote ctions o nly e xtend to those sit uations wh ere a fact not prove d beyo nd a reaso nable do ubt enhanc es a defen dan t’s sente nce beyond the statut ory maximum, and does not extend to those cases whe re the fact onl y increases t he defendant’s st atutory mandatory minim um. W e note tha t these ca ses rem ain binding precedent

e xcept insofar as t

hey are inconsis tent wit h Ha rris ’s rul e regarding statut ory mandatory-minimum sentences. We cite these cas es for the proposi ti on that

the s ubsecti ons of § 841(b) re quire t hat the dru g qua ntity be pr oved beyond a reasona ble doubt or else the defendant can receive only the default

statut ory-maximum penalty for off enses which do no t state dr ug qu antity. See generall y United States v. Lopez , 309 F.3d 966, The Supreme Court announced in Apprendithat “[o]ther thanthe fact of a prior conviction, any fact that increases the penalty for a cr ime beyond the pre scribed statutory maximum must be submitted t

o a jury, and pro ved bey

ond a rea sonable doubt.” 530 U.S. a t 490. Afte r the landmark de cision in Apprendi
, we dete

rmin ed that the federal drug statute’s progre ss ion of

increased maximum penalties based on the amount of drugs in possess ion trig gers Apprendi ’s protection. See Stray horn , 250 F.3d

at 467-68 ; see also United States v. Zidell
, 323 F.3d 412, 427-28 (6t h Cir. 2003) (stating that Apprendirequires a defenda nt to b e sentenced using the default st atu tory maximum “unless the jury determines beyond a reasonable doubt that the offense involved a quan tity of drugs that triggers a n enhanced statutory maximum”); United States v. Copeland , 321 F.3d 582, 6 02 (6th Cir. 2003 ) (rei terating that we require proof be yond a
reasona ble doubt when s enten cing d rug offenders under the “higher tiers” of the sche me set for thin § 841(b)). Thus, for the purpose of establishing the statutory -maximum sentence for drug offenses, the drug a mount must be proved beyond a
reasona ble doubt. United Sta tes v. Ga rcia , 252 F.3d 838, 842 (6th Cir. 2001). In United States v. Flowal , 234 F.3d 932 (6th Cir. 2000), overruled on othe r gro unds by Leachman , 309 F.3d at 383, 10 we held that each pro vision o f § 841(b)Nos. 99-2147; 01-2044 United States v. Darwich 13

970 (6th Cir. 2002) (noting that because the jury did no t fin d beyond a
re ason able doubt the necessar y cocain e amounts f

or sent encing under §§ 841 (b)(1 )(A) o r 84 1(b )(1)(B ), Ap pren di would require that t he defendant be se ntence d und er th e de fau lt st atut ory- maximum provi sion for cocaine contained in § 841(b)(1)(C)). provide s f

or a diff erent criminal of

fense with separ

ate elements which all must be proved beyond a

reasonable doubt when a defendan

t guilt y of a marijua

na consp iracy

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 st atutor y maxi mum s entence for conspiring to distribute an undetermined amount

of marijuana), cert. denied, -- U.S. --, 123 S. Ct. 1005 (2003).

An Apprendiviolation not onl y can o ccur when a cas e proceeds to trial but also can occur when a defendant

pleads guilty to a drug offense. See Strayhor n , 250 F.3 d at 468 . If
an Apprendierror o ccurs in a situation involving a guilty ple a, the dist rict c ourt c an cure the err or by find ing dru g quantit y beyond a reasonabl e doubt and sentencing the defendant
ac co rd in gl y. Id

. at 471 . The justification for applying Apprendiin the gu

ilty plea con text is that:

the defenda

nt who ple ads guil

ty to an unspecified amount of drug s and is the n sentenced under the preponde r ance-of-the-evidence standard may just as easily be subjected to an enhanced sentence in excess of the defaul t s tatutory maximum as the defendant who takes his case to trial and

is then sentenced by

the district court under t he same preponderance-of-the-evidence standard.

Id. at 468. Because Strayhornrequires the di strict co urt, when the defendant is subject to an enhanced sentenc e, to consider “the determination of drug quantity under § 841(b)

. . . [as] an element of the offe nse rather than a sentencing 14 United States v. Darwich Nos. 99-2147; 01-2044

factor,” we must review whether t he dis trict court’s use of hearsay testimony

to establi sh the nec essary drug qu antity beyond a reasonable doubt is appropriat e in light of Apprendi ’s holding. Id. (citi ng United States v. Ramirez , 242 F.3d 348, 351 (6th Cir. 2001)).

1. Hearsa

y Testim ony
Alth ough failure

to raise a n objecti on in the di strict co urt to preserve an Apprendiissue limits appella te review to a plain
error inquiry, see Unit ed States v. Page , 232 F.3d 536, 543 (6th Cir. 2000) (citing

Fed. R. Cr

im. P. 52(b)), a pre-

Apprendi defendant’s objection at the se ntencing hearing to the qua ntity of drugs and the judge’s determination by a pr eponderance of the evidence is suff

icien t to entitle the defendant to de novo review. See Copeland , 321 F.3d at 601; Humphrey , 287 F.3d at 445. In Strayhorn , the def endant pr eserve d his c hall enge to his sentence by r

epeatedly obj ectin g to the d

rug qua ntity determination

at the plea heari ng, at the sente ncing h earing, and in written objections to the calcula tion of his b ase offense level in his presentence report. Se e Strayhorn , 250 F.3d at 467. We determined that although Stray horn did not “utter the words ‘d

ue proce ss,’” he

nonethel ess pres erved hi s chall enge to the drug quantity de termination. Id. Muchlike Strayhorn
, Darwich

ade quately prese

rved his constitutional chall enge to the quantity determinat ion under Apprendi

. Darwich consistently obje cted, both in writing and oral ly, to the PSR’ s comp utati on of a speci fic dr ug amount . Darwich objected to th e drug q uanti ty at the e viden tiary hear ing, referencing

the objections raised in his letter to the Probation Department

after it as s essed the

quantity . Darwic

h also alerted the distri ct court , at the plea h earing, that the amount of marijuana was in dispute. Thus, we review Darwich’sNos. 99-2147; 01-2044 United States v. Darwich 15

11 W hile it i s true that

a defendant’s f

ailure to ob ject to h is sente nce before th e dis tri ct c ourt on th e same groun d rai sed on a ppeal li mit s ou r review to plain error , United Stat es v. Stubbs , 279 F. 3d 402, 407 (6th Cir. 200 2), we conc lude th at de n ovo review is app rop riate because Darwi ch objected to Ru sh’s hea rsay testim ony in a supp leme nt to his objections to the PSR. J. A. at

84 (Supp. to Se ntenci ng M em. & O bjections). T hus,

even though t

he gravamen of

Darwich’ s appeal involves a dete rmin ati on of whether Apprendi allows h earsa y testimo ny to be co nside red in proving drug quantity beyond a rea son able doubt, de novo review remains the proper st andard of r evie w becau se Darw ich obj ected to hi s sent ence before the d istrict court on the same gro unds. Apprendichallen

ge de novo beca

use he adeq

uately preserved his quanti ty c laim. 11

We ha ve repeatedly

held that hearsay

is permissible a t a sentencinghearing so long as it has some minimum indicia of
re li ab il it y. United States v. Davis , 170 F.3d 617, 622 ( 6th Cir.), cert. d

enied
, 528 U.S. 86 1 (1999); United States v. Polselli
, 747 F.2d

356, 358 (6th Cir. 1984), cert. denied, 469 U.S. 1196 (1985) . Fed eral Rule of Evidence 1101(d)(3) provid es that the r

ules of e vidence are “inapplica

ble” to “[m]iscellaneous procee dings ,” inc ludi ng s entencin g hearings. Fed. R. Evid. 1101(d)(3). Although wereco gniz e th is co ur t’ s t ra di ti on al ac ce pt an ce of he ar sa y te st im on y a t sente ncing, we take our d irect ion from Strayhornthat drug quantity i s consider

ed an ele ment of the

offense and not a
se ntencingfactor

when such quantity

alters the statu

tory

maximum sentence the defendant could receive. Strayhorn
, 250 F.3d at 468 (c itin g Ramirez , 242 F.3d at 3 51); see also Zide ll
, 323 F.3d at 427-28 (noting that specific coca ine quantities must be proved beyond a reasonable doubt in order to sentence a d efendant using the enhanced-pe nalty pro vision s of 21U.S.C. §§ 841(b) (1)(A) and 841(b)(1)(B)). I n keeping with this principle, we hold that the normal rules of evidence should apply when Apprendi requires the district court to find the drug qu

antity bey ond a rea sonable d

oubt, and theref ore it is not perm i ss ib le to us e h ea rs ay e vi de nc e t o r ea ch th e f ifty16 United States v. Darwich Nos. 99-2147; 01-2044

12 Specif ical ly , the t est imony

reve aled: MR. TURK EL: And you said [yo ur nep hews] indica ted to you

the amount of m ariju ana that [Darwich] was selli ng?

MR. R USH: Th at they wo uld p acka ge up each night.

MR. TUR KEL: W hat did they t ell you?

MR. RUSH: W ell, s ometimes when I dropped one of them off they tell me that, you k now , if I picke d them up I se en them the nex t day, th a t I packed up a pou n d or I did two pounds or a pound and a half

, li ke that , you k

now. J.A. at 443 (Tr. of Mo t. Hr’g, Rush Direct Exam.). kilogram quantity needed to s entence Darwich under § 841(b)( 1)(C)

. Inthe pres ent case, the district court relied extensively on Rush’s testimony 12 that his nephews sometimes told him how many pounds of marijuana they bagged a night whe

n he picked them up or happened upon them the next day. Rush’s testimon y reg arding his nephews’ statements constitutes an out-of-court

statement

“offer ed in evid ence to prove the truth of the matte r asser ted,” an d it there fore me ets the definition of hearsay provided in Fede ral Rule of Evidence 801(c). Fed. R. Evid. 801( c). Howe

ver, Rule 801(d)(2)(E) provides that a statement is not hearsay if: “ [t]he statement is offere d again st
a party and is . . . a statemen

t by a cocon spirator

of a par ty during the course and

in furtherance of the conspiracy .” Fed. R. E vid. 801(d)(2)(E). “I n 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 o f the conspiracy , and that the co-conspirator’s state ments we re ma de in fu rt he ra nc e o f t he co ns pi ra cy. ” United Sta tes v. Ge

ssa , 971 F.2d

1257, 1261 (6th Cir. 1992) (en banc) ( interna

l quotation

marks omit

ted); see also United States v. Hamilton , 689 F.2d 1262, 1268 (6th Cir. 1982), cert. denied
, 459 U .S. 1117 (1 983) (not ing that these el ements must be proved by a

prepo nderance of the evidence). ANos. 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) (quotationomitted); Hamilton , 689 F.2 d at 12 70; see also United States v. Doerr , 8 86 F.2d 9 44, 951 (7th Cir. 1989) (“We recently e mphasized thatthe in furtherance requirement of Rule 801( d)(2)( E) is a limitation on the admissibility of
coc onspirat

ors’ statements that is meant to be taken seriously.” (interna

l quotation marks omitted)). Applying the test of Gessa , we do not quest ion th at a conspiracy

existed or that Darwich was an active participant inthe conspiracy . Howeve r, w e conclude that Rush’s nephews ’ statements were not made in furtheranc e of the
co ns pi ra cy. As an initial matter, it is quite clear that mere “idlechatter or casual conversation about past eve nts” is not considered

a statement “in furtherance of the conspiracy .” United States v. Tocco , 2 00 F.3d 401, 419 (6th Cir. 2000) (quotationomitted); see also United States v. Salgado , 250 F.3d 438, 449-50 (6th Cir.), cert. denied, 534 U.S. 916 a n d 534 U.S. 936 (2001); United States v. Foster , 711 F.2d 871, 880 (9th Cir. 1983), cert. denied
, 465 U.S. 1103 (1984) (notin g that “mere narrative declara tions” made without the intentto induce assistance for the conspiracy do not fall within the “stri ct requi

rements” of Rule801). The

nephews ’ statemen ts as to how much marijuana they bagged were neither attempts to “keep[] co-conspirators advised,” Tocco , 200 F.3d at 4 19, nor we re they “[s]tateme

nts th at identify particip ants and thei r roles in the conspiracy .” Monus , 128 F.3d at 393 (internal quotation marks omitted). It is apparent fromthe tran scriptsof Rush’s testimony that these statemen ts
were c asual conversation about past events. Rush’s testimony it self indicates that his nephews made these statements on l y oc ca si on al ly; i f h e happened to pick his nephews up or see th emin passing , they

“sometime s” mentioned to him ho w much marijuana they

had bagged the previous nig ht. J.A. at 443 (Tr . of Mot. H

r’g, Ru sh Direct Exam.). I n sum, th es e statemen ts are simply ca sual conversation — ind icative of how hard the nephews worked on a particular evening — and, 18 United States v. Darwich Nos. 99-2147; 01-2044

13 Rush als o tes ti fi ed reg ardi ng hi s own purchas es f rom Darwi ch of marijuana for perso nal use and for resale. The district court could have reli ed on this testim ony in its attempt to determine whether the evidence estab lishes fifty kilogra ms b eyon d a re ason able d oub t.

14 We note tha t both E asterling and S mith test ifi ed at the evi dentiary hearing on Darwich’s objections to the P SR ’s drug quantity cal culations and, thus , were s ubject t hen to cr oss ex aminat ion. C onse rvative ly calculati ng the am ount o f drugs m ention ed in the ir com bined testimo ny, other than the illegal nature of thework, are no different than
a statement by a fa

rmer that he harvested forty

acres of wheat by sundown. B ecause

Rush’s tes timony

with resp ect to his nephews ’ out-of-court statements is hears ay 13 that does not fallwithin

an exceptionto the general rule, it was error for the district court to rely on this evidence

. Without Rush’s testimony rega rding his neph ew s’ statemen ts, the only

other wa y f or the dis tr ict court to reach the ne ce ss ar y fi ft y k ilogra ms bey ond a reasonable d

oubt is throug h Dodg e’s testimony restating the testimony of gr

and jury witness es. If permissible evidence, D odge’s testimony woul d provide s

ubstantia l evidenc e on the dr

ug quan ti t y question. Howeve

r, Age nt Dodge ’s testimony a

ls o comes within the definition of hearsay provide d i n Federal Rule of Evidence 801(c) b ecause it cons titutes an out-of-court statement “offer ed in evidenc e to prove the truth of the matter
a s serted.” Fed. R. E

vid. 801(c ). One potentially applica ble exception, Federal Rule of Evidence 804(b)(1), provides that fo rmer testimony, “given a s a witness at another hear ing o f the same or

a diffe rent pro ceeding ,” will

not be excluded by the hearsa y r ule if the de claran

t is unava ilableand “the

party againstwhom the testimony is no w offered . . . had an opportuni ty and similar motive to develop the test imony by direct, cross, or redirect examination.” Fed. R. Evid. 804(b)(1). Here, regardless of whether the g rand jury witnesses properly c ould be co n sidered “unavailable,” Darwich had no opportunity to cros s examine these witnesse s. 14 Therefore, the grand jur y testimony

does not fallNos. 99-2147; 01-2044 United States v. Darwich 19

however, we cannot reach the ne cessar y dru g quantity bey ond a

reaso nab le do ubt.

15 Rule 80 7 states: A stateme nt not sp ecific all y cov ered by Rule 803 o r 804 but having equivalent circum stantial guarantees of trustworthiness, is not exc luded by t

he hears ay rul e, if

the cour t deter mines t hat (A) the statem ent i s off ered as ev id en ce of

a ma te ri al f

ac t; (B) the statement i s more probative on t he po int for wh ich it is offer ed than any other evidence w hich t

he proponen t ca n procure through reasonabl e eff orts; and (C) th e generalpurposes of these rules and the i nteres ts of just ice w il l bes t be s erved by admissi on of th e stat ement i nto evi dence. Fed. R. Evid. 807.

16 I disse nted in Laster

based on the majority’s expansi ve readi ng of the resi dual hear say except ion that dire ctly con flicted with both the pla in language of the Rule and the legislativ e history. See Laster , 258 F.3d at 533 (Moore, J., di ssent ing). Althoug h I continue to bel ieve t hat my v iew is the pro per inte rp retation of Ru le 80 7, I rec ogniz e that Laster is the

curre nt law o f the circu it.

17 In Barlow , we defined unavail abilit y as incl uding a sit

uati on when “a witn ess pers ist s in r efusi ng to t esti fy co n cerning the su bject matt er of his stateme nt desp ite an o rder of the co urt to do so .” Barlow , 693 F.2d at wit hin the forme

r-testimony e

xception to

the hearsay

rule

. Cf. United States v. F

oster , 128 F.3d 949, 954-56 (6th Cir. 1997) (holding

that when

the defe

ndant’s w

itnes s is unavaila ble and the government

had the same motive and opportunit

y to develop the w i tness’s testimony at the gr and jury proceeding, the requirements of 804( b)(1) are satisfied).

Onoc cas ion, when a statement is inadmissible hearsay under Federal

Rules of Evidence 803 and 804, it still can be admitt edun der Federal Rule of Evidence 807, the r esidual hear say exception. 15 United States v. Laster , 258 F.3d 525 , 530 (6th Cir. 2001), cert. denied, 534 U.S. 1151 (2002); 16 see 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 una

vaila bl e 17 witness “under 20 United States v. Darwich Nos. 99-2147; 01-2044

961 (interna l quo tation o mit ted) (analyzi ng the pre curs or to Rule 807, Rule 804(b)(5)). W hen analyzing t he admissibili ty un de r the Confr ontation Claus e of pr iort esti mony, t he Supreme Court h as st ated that the declarant must be unavailable and the testimony must have suffi cient indicia o f reli ability. See Wh ite v. Illino is , 502 U.S. 346, 354 (19 92) ; Oh io v. R obe rts , 448 U.S. 56, 65-66 (1980).

18 The Supreme Co urt considers cross exam ination to be the “grea test legal engine ever i nvented f or the discovery of tr uth. ” Califor

nia v. Green , 399 U.S. 149, 158 (1970) (int ernal quotation and citati on omitted). certain circumst ances” is admissi

ble pursuant to Rule 807). This rule requires that befo re R ule 807 can apply , the evidence must have “equivalent circumstantial guarantees of trustwor thiness” as compared to evidenceadmitted under the
o ther 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 evid

ence ad mitted must go to a “material fact,” must be more probative than a ny other evidence that reasonably

could have been procured, and its admission must

support the general purposes of the Rulesof Evidence and “the interests of justice.” Fed. R. E

vid. 807; see United States v. Canan , 48 F.3d 954, 959 ( 6 th Cir. 1995). While balanci

ng all of th e se conce

rns, the d istrict c ourt also must consider the “inde pendent r est rictions ” on the admission of certain evidence contained in the Conf

rontation Clauseof the Sixth Amendme

nt which protects

a criminal defendant’s right to conf ront th e witn esses agains t him and to chall enge their testimony through cr

os s examination. Canan , 48 F.3d at 959-960.

Without pr oper cross examination, 18 the statements of Rush ’s nephews cannot be deemed to have “e quival en t
c ircumstantial guarantees of trustworthiness.” Th es e statemen ts were of

f-the-c uff estimations sub

je ct t o miscalculations and/or inaccur ate r epresentations, creating the precise typ e of p roblem tha

t the hea rsay rule is de signed t

o prevent

. An opport

unity to cross exa

mine Rush’ s nephew s in this situation i s the only

way th at Da rwich wo

uld be abl e toNos. 99-2147; 01-2044 United States v. Darwich 21

explore any conc erns with the integ rity and acc uracy of these statem ents. Moreover, we also must consider the sourc e when evaluating the reliability

of this hearsay

testimony. The testimony was offered by

Rush when h e was in a li kely p osi tion to supply

self-se rving te stimony . While this testimony does not exculpate Ru sh at th e exp ense of implicating Darwich, it is the exact testimony thegovernment 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 aga

inst Darwich. See United States v. Gomez-Lemos , 939 F.2d 326, 332 (6t h Cir. 1991); see gener ally 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 codefe ndant’s] st

rong mot ivation to implicate the defendant and to exonerate himself”); Miller v. Field
, 35 F.3d 1088, 1092-93 (6th Cir. 1 994) (not ing that with respect to testimony

from the a

lleged assailan ts who wer

e 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”). A s afinal matter, altho ugh the nephe

ws’ statemen

ts regardi ng drug q uanti ty go to a material fact, the government has not shown that Rush’s h ears ay testimony is “more probative” than any other evidenc e it could

have pro cured us ing rea sonable e fforts.

To ensure “equivalent circumstantial guar antees of trustwor thiness” in the context of admitting grand jury testimony under the residual hearsay

exception, Barlow listed the importantfactor s, includi ng: “the declar ant’s re lationship with both the defendant and the government, the declarant’s motivation to testify before the grand jury , the extentto which the testimony reflects the de clarant’s personal knowledge, whether the declarant has ever recanted the testimony, and the existence of corroborating evidence a vaila ble for crossexamination.” Barlow , 693 F.2d a t 962 (emphasis added). Withrespect to Dodg e’s testi mony repeat ing the s tatement s of the grand jury

witnesses, many of whom were argua bly 22 United States v. Darwich Nos. 99-2147; 01-2044

19 All grand jury witne sses, oth er than Easte rlin g and S mith, fall within this ca tegor y.

20 Even if the hear say test imony coul d have been cons idere d reliab le and t rustw orthy, it still wou ld no t be ad missible unde r Rule 807 . Rule 807 requir es tha t the “statem ent is more probativ e on the poi nt f or which it is off ered t han any other e viden ce whi ch t he propo nent can procure through reasonable efforts .” In thi s case the gov ernment h as not s hown how it exerted reaso nab le efforts to secure the tes timony of the gr and jury witnesses at the evidenti ary hearing as r equested by Darwich. coconsp irators, this cour

t stated in Gomez-Lemos that ther e is “a strong presumption agains t the trustworthiness of coconspira tors’ statemen

ts that are made after a conspirac y has terminated

in arrest.” Gomez-Le

mos , 939 F .2d a

t 329. We further stated tha

t: “ outside of the co-conspirator exception to the hears ay rule (

where a statement is made during the
course of the conspiracy

and not after it has ende d), t he Supreme Court has c onsistentl

y c oncluded

that the u

ncrossexamined testimony of an alleg ed co-con spirator is not sufficie ntly relia b le to meet the requirement of the ConfrontationClause.” Id. at 332. Thu s, we conclude that this grand jury

testimony, at

least with

respect to those grand jury witnesse s who did not also test ify at th e evi dentiary hearin g, 19 lacks the

necessa ry reli a bility 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-kilog

ram mark bey

ond a reasonable doubt
comes from Eas te rling’ s and Smith’s testimony at the evidentiary he aring, Dodge’stestimony reg ardingmarijuana seized during the search, and

Rush’s testimony

regar ding his
ownpurchases. Dodge testified that during the search of

the mark et approximately 655.4 gra ms (.655 kilograms) of marijuana was co nfiscated. Rush testified that he bought three to five nickel bags of marijuana “basica lly” every day fromDarwich over a ni ne-month period. D

uring the sameNos. 99-2147; 01-2044 United States v. Darwich 23

21 3 gr ams x 7 days x 39 weeks (nine months) = 819 gram s (. 81 9 kilograms). nine months, he also purchased any where from a half ounce to a pound every

couple of weeks for further resale. Alth ough Easterlingadmitted t

hat th ere were times when she did not bagmarijuan a for Dar

wich, she estimate d that, sta

rting in September

1997, she worked three to four day s a week bagging nick el bags for Dar

wich. Ea sterling

attempte d to calcula te the amount of marijua na 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 outof ten market custo mers p urchas ed nic kel ba gs during h is shift at the Canfi eld Mark

et.

We previously hav e in structed 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. 99 0 (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 te stimony
can be taken at face value beca use he attested

to anamount of marijuana that was ac tu al ly confisc ated by the FBI agents

. All the oth er witnesse s provide d figur es subject to interpretation, and therefore the results must bec autiously analyzed. The district court comfortably could have determined

that Rush purchased three nickel bags c ontaining one gram of marijuana each, seven times a week, for a ninemonth (or thirt y- nine wee

k) perio d, which y

ield s 819 grams of marijuana (.819 kilograms). 21 Applyin g a formula for the larger quantitie s purcha sed by

Rush, the d

istric t cou rt could ha ve est imated conservatively that he bought one half of a pound, every two weeks, during the nine-month period (approxima

tely twenty wee

ks). This equa

tion would

yield 10 24 United States v. Darwich Nos. 99-2147; 01-2044

22 One k ilogram eq uals 2.204 6 po unds.

23 300 grams x 3 d ays x 35 weeks = 31,500 grams (31.5 kilograms).

24 W hile it is t

rue th at duri ng the s ix month s that Canfie ld Market was under surveillance the marke t generally was ope n se ven d ays a week, Smith ’s test imony re vealed that the st ore was clos ed for ext ended per iods of time wh en D arwich was o n vaca ti on, whe n the store was robbed, and twice when Da rwich w as in the hospi tal , onc e recov eri ng f rom a gun-s hot wound and once aft er a sui cide attempt. All t olled, Smith ac counted for at l east four weeks fr om 1997 to 1998 wh en t he mar ket was c lose d. pounds, whic h con verts to 4 .535970 ki logram s. 22 With respect to Easterling’s testimony, a conser vativ e calculation could find that she bagged 300 nickel bag s at one g ram of marijuana each, three times a week, from September 1997 throu gh April 1998 (the end-date of the conspiracy as specified in the indictment). This equationwould yield 31.5 kilogra ms of bagged marijuana. 23 Finally, ana lyzing Smith’s testimony conservatively

and in keeping with the Probation Department’s formula, we co nclude that if fifty- eight customers bought n

ic kel ba gs containing one gra m of marijuana five days pe

r wee k 24 for the two ye ars of the conspiracy

(104 wee ks), the a mount of ma

rijuana sold would total 30.1 6 kilogr

ams.
Alth ough if we added all of these figures tog ether we would surpassthe fifty kilogr

ams needed, using the rule of Walton
, Darwich’s argument agai nstdouble-counting has particular relevance. Darwich argues o n appeal that in order to reach the fifty kilogra

ms beyond a

reasonable doubt, the sentencing
co urt must refrai n from consi derin g evide nce of b agge d marijuana in conjunction with evidence of purchased marijuana. Dar

wich contends that if the court adds all of thesefi g ures to reach a drug quantity , the final drug count would be infla ted beca use the ma

rijuana bagg ed for sa

le is the
same marijuana that

was purchased at the market. We ag ree with this position and determine that in order to reach the necessary fifty kilogra

ms beyond a re a sonable doubt theNos. 99-2147; 01-2044 United States v. Darwich 25

25 Even ignorin g our duty to “err o n the sid e of ca ution,” we still fall short of th e necess ary f ift y kil ograms when we use the number of customers and amoun t of mari juana con sis ten t wit

h the hi gher ran ges provided by Smith’s t estimony, i .e., as suming sixt y-thr ee customers amount of marijuana

sold must be considered separately from the amo unt ba gged for sale. The pr offered evidence shows that the total amount

in bagged marijuana was just over thirty kilogra ms, nearly

twenty kilogra ms shy of the fifty

-kilogram mark. The evidence of sales established that Darwic h s o ld just over thir ty- six kilograms of marijuana from the Canfi eld Market. Thus, nei

ther of these fig ures is sufficien t to establish fifty kilogra ms bey ond a rea sonable d

oubt.

The dissent makes three critical er rors t o reach

its
co nclus ion that drug quantity was established beyond a
reasona ble doubt. Fi

rst, it re lies s ol ely on Rush’s hearsa y testimony to establi shthe drugquantity bey ond a rea sonable doubtby findin g t hat it

falls within the “statement by a c oconspirator” exemption from the hearsay rule. Second, i

t fails to addr ess th e inadmissibility of Dodge’ s hearsay testimony regarding the grand jury testimony

. And third, it neglects the long-standing

principle that a sentenc ing cou

rt is instructe d to “err [] on the s ide of caution when calculating drug qu antities.” Arredondo , 178 F.3d at 787. The dissent al s o hypothesizes that it is feasible to reach the necessar y fifty kilogra ms through

Smith’s t esti mony alon e by derivi ng a formula from his testimony reg ardingthe average number of drug bu ys during his shift at the Canf ield market. In a footnote, the disse

nt applie s this for mula of purchases per hour to the hours the Canf

ield m arket c onducted

business, assuming that sale s took plac e at a constant ra te th rou ghout the day. Althoug

h the dissent mentions t his evidence as an aside, it is, nonetheless, surprising that the dissent would even tentative ly

indicate that such an

extrapolation would provide evidence of drug quantity beyond a r

easonab le doubt. As stated above, Sm

ith’s test imony only yie lds 30.16 k

ilogra ms o f marijuana. 25 The dissent’s approach makes broad 26 United States v. Darwich Nos. 99-2147; 01-2044

purchased nickel bags conta in ing 1. 5 grams of mar ijuana fiv e days per week for the two y ears of th e con spi rac y es tab li she s on ly49.1 4 ki log rams of mari juana.

26 Even thoug h we a lread y have d eterm ined th at Da rwich’s sente nce is in confli ct with Apprendi , we sti ll need to addr ess D arwich ’s suff icie ncy of th e eviden ce ch allenges to his base o ffense level because

on remand Darw ich’s total offense level can impact his u lti mate sent ence provided th at the total offense levelpermits the dist rict court t o senten ce him to les s than

the s ixty-mont

h maximum. The sentenci ng guidel ines require that Darwich must be involv ed w ith at least 1 00 k ilogram s by a preponderance of th e evidence before Dar w ich can receive the base offense level26 that he was assi gned at sentencing. unfounded

assumptions to conclude that Smith’s testimony alone would suffice.

Inconclusion, the di s trict court’s acceptance of hea rsay testimon y to reach the necessary fifty kilogra

ms beyond a
reasona ble doubt was erroneous. Without establishing that Darwich was resp onsible f

or at lea st fifty

kilogra ms of marijuana beyond a re asonable doubt, the court cannot sentence Darwich under § 841(b)(1) (C ), and ins tead must sentence him under

§ 841(b)( 1)(D) w

hich esta blishes a si xt ymont h ma ximum for qua ntities of marijuana under f

ifty kilogra ms. 21 U.S.C. § 841(b)(1)(D). Therefore, Darwich’s sentence of eighty-eight months is improper beca use i t subjects him to a sentence in excess of the statutory maximum inviolation of his constitutional right to have each element of the offe nse prove d bey

ond a rea sonable d

oubt. B. Sufficiency

of the Eviden ce at Sen tencing Darwich, ina series of

fact-based objections, challenge s the districtcourt’ s findi ng by a preponderance of the evidence that he is res ponsible f or 236 kilo gramsof marijuana over the length of th e c on sp ir ac y. 26 Specifically, Da rwich argues that the district court erred by doub le-counting the amount of marijuana to r each the

necessa ry drug fi gures, by f

ailing to account for interruptions in drug activity , and by rely ing onNos. 99-2147; 01-2044 United States v. Darwich 27

Rush’s purportedly incre dible testimony. Although w e addressed some of Darwich’s arguments in our A pprend i discussion, we now w ill address them in the context of whether the d istrict court could properly assign Darwich a base offense level of 26, which re qu ir es fi nd in g b y a preponderanceof the ev

idence i nvolveme nt withmore than 100 and less than 400 kilograms of marijuana.

We review for cl ea r error the district court’s factual findin gs o n drug quantity a ttributable to a defendant for sentencingpurposes. United States v. Mahaffey , 53 F.3d 128, 131 (6th Cir. 1 995); United States v. Walton
, 908 F.2d 1289, 1300-01 (6th Cir.), cert. denied, 498 U. S. 989 (1 990). “A finding of fact

will only be clearly

erroneous when, altho ugh there may be some evide nce to support the finding, ‘the reviewing court onthe entir

e eviden ce is lef t with the d

efinite and firm conv

iction th at 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 (1 998). I f the distr ic t c ourt interprets the evidence in a manne

r consis tent with the record, we are required to uphold it s decision even if we would

have reached the opposite c onclu sion. Anderson , 470 U.S. at 573-74 (“Where there are two permissible views of the evidence, the factfinder’s choice between the m can not be cle arly erroneous.”).

1. Double- Counting at

Sentencin g
Darwich raises a double-counting arg ument concerning the districtcourt’s calculations to establish dru g qu an ti ty b y a preponderanceof

the evidence, in which

Darwich argues that the district c ourt impro

perly combined

both bagged and sold marijuana to reach an infla

tedquantity. Separating the evidence of bagged

marijuana from the evidence of marijuana
sa l es, we believe that it is clear that using evidence of the bagging operation alone res ul ts in an ea sy f in di ng by a 28 United States v. Darwich Nos. 99-2147; 01-2044

27 1 lb. x 7 days x 13 weeks (3 months) = 91 lbs. (41.2 kilograms). preponderanceof the evidence of at least 100 kilog rams o f marijuana.

As discussed in the preceding section, a co nservative estimate from Easterling’s testimony results in a finding that she bagged

31. 5 ki lo gra ms of m ari

ju ana . In addition, the less stringent evidenti ary

standar ds applic able to sentencing allow the d istric t court to consider Dodge’s hearsay testimony reiterating

the testimony before t he grand j ury. Dodge testified th at Ar th ur Pa ce to ld th e g ra nd ju ry th at he bagged
one po und of marijuana each night during the fall of 1997. This yie lds ye t a nother 41 .2 kilogr ams. 27 Rush’s testimony repeating his nephews’ statements is also fair game when establishing drug quantity f or sentencing by

a preponderance of t he evidence. Rush testified that his nephews bagg ed a pou nd ea ch ni gh t f

or th e l en gt h o f t he tw o- yea r c on sp ir ac y. Using a mere fraction o f t his testimony provides a dequate evidence of drug

quantity in excess o f 100 kilog

rams. Thus, th e district court did not clearly e rr in determining that Darwich’s conspiracy

involved at least 100 ki logr ams of marijuana. 2. Interruptions in Activity

Darwichargues that the district court’s drug- quant it y findi ngs did not adequately a ccount for periods of timewhen the Canfield Mar

ket wa s closed. The district court had determined

that the probation dep artment’s aggregating formula was sufficient to account for the minor interruptions cited by Dar

wich.

The district court did not clearly e rr when it found Darwich responsi ble for a conspiracy

involving, by a pre

ponderance of the evidence, at least 100 kilograms of marijuana. First, the surveillance of the Canfield Market indicated tha t the store
was open seven day s a w eek, w hereas the probationNos. 99-2147; 01-2044 United States v. Darwich 29

department’s formula calculating drug quantity used a fiveday-per-w eek assu

mption. I t is not clearly e

rroneous for the dis trict court to determine that the formula’s use of fewer da ys ade quatel y compensates f or any per

iods 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 preponde

rance of the evidence more th an100 kilograms of marijuana because the e vidence o f bagged marijuana alone is enough to rea ch that mark comfo rt ab ly. Thus, Dar

wich’s a rgumen t that the C anfie l d Market was closed on a number of occa sions has no bearing on whether the bagging

operation continued uninterrupted.

3. Unreli able Testi mony
Darwich contends that t he district court should not have relied on Rush’s te stimony

because it was procured by the government’s promi se to R ush of a red uced sente nce. We previous ly

have stated that “[w]e are gener ally relucta nt to set aside credibi lity

determinations made by the trier of fact, who has had the opportuni

ty to view the witness on the stand and
assess his demeanor.” Peveler v. United States
, 269 F.3d 693, 70 2 (6t h Cir. 2001). In keeping w ith this principle, we find
no reason to disrupt the district court ’s det ermination that Rush’s testimony

was cr edible, after the district court had a first-ha nd opportu

nity to observe him.

C. Sentence Enhancements

1. Fire arm Enhan ceme nt

“Adistrict court's finding that a defe ndant possessed a firearm during a drug crime is a fa ctual finding subject to the clearly erroneous stan dard of review.” Bartholomew , 310 F.3d at 924 (quotation omitted). “A finding of fact wil l only be clearl y erroneou s when , alth ough there may be some
e vidence to support the finding, ‘the reviewing court on the entire evidenc e is le ft wit h 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 permissib le views of the evidence, thefactfinder’s choice between them cannot be clearly erroneous.” Id. at 574.

U.S.S.G. § 2D1.1(b)(1 ) or ders sen tencing courts to increa se the defendant’s sentence by two levels “[i]f a dan gero us weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b) (1) (200 1). The s entenci ng cour t is instructe d t o apply the two-leve l enhanc ement whe n a weap on is present , “u nless it is clearly improbable that the weapon w a s conne ctedwi th the offense.” U.S.S.G. § 2D1.1, cmt. n.3. This requirement for a strict sentence enhancement

“refle cts the increa sed dang er of vio lence when drug traffickers possess weapons.” Id. The government bears the burden of showing by a preponde rance of the evidence that the de fen dant either “actually

or constructively possesse d the weapon.” United States v. Hough , 276 F.3 d 884, 8 94 (6th Cir.), cert. den ied
, 535 U.S. 1089, and -- U.S. - -, 123 S. Ct. 199 (2002). “Constructive possession of an item is the ownershi p, or dominion or control over the item itself, or dominion over the

premise s w here the item is located.” United States v. Hill , 79 F .3 d 1477, 1485 (6th Cir.), cert. denied
, 519 U.S. 858 (1996) (citation and internalquotations 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 shif ts 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 enhanc ement if t he defe ndant fa il s to meet this burden. United States v. Migg ins , 302 F.3d 384, 391 (6th Ci r.), cert. denied , -- U.S. --, 123 S. Ct. 712 (2002), and -- U.S. --, 123 S. Ct. 909, and -- U.S. --, 123 S. Ct. 1772 (2003).

T he P SR recommended an enhancement based upon the
seven firearms found pursuant to lawful searches ofNos. 99-2147; 01-2044 United States v. Darwich 31

Darwich’s home. T he distric t court a

ccepte d these
recomme ndations. On a

p peal, Darwich contends that the weapons found

in his home

were no t suffici ently

linked tothe drugactivitie s that took

place a t the Canf

ie ld Mark et. In support of his position , Darwic

h cites United

States v. Peters , 15 F.3d 540 (6th Cir. 1994), a case involving cocaine seized inplain view from the top of

a dresse r. However, in Peters , the senten cing co urt did not apply the firea rm enhancement
even thou gh a pistol with afully loaded mag azine was found ina z ipper ed pouch

in the dre sser dra

wer, be cause it determined

that the pistol was not connected to the drug offense. Id. at 546. We u pheld the district court’s decision, noting our deferential posture when reviewing for clear error. Id.

While Darwich might be cor rect in his position that the government

failed t o demonstrate how these weapons were connected

t o the Canfield Market activities, the weapons
sur ely c ould have been connected to the bagging operation that took place in his home. B ecause

the weapons were found inDarwich ’s home where the drugs were ba gged, a presumptionarose that “the weapon[s were] connected to the offense. ” Hough
, 276 F.3d at 894. Once this presumption takes effect, the burden was on Darwic h to “show that it was ‘clear ly improbab le’ that t

he weap on[s were ] connect ed with the crime.” I

d. D arwich argues that the connec tion of the weapons to the drugs was tenuous, b ut failsto show that the presumed conn ectio n was “clearly improbable.” Thus, the districtcourt did not clearly err in applying

the two-level firear m enhanc ement.

2. Leader ship Enhancem ent

U.S.S.G. § 3B1.1(a) provides that a de fend ant’s sentence
ca n be enha nced by four

levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five or
more partic ipants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Subsection (c) provides for a two- level enhancement

if the cr iminal activity

involv edless than five 32 United States v. Darwich Nos. 99-2147; 01-2044

particip ants or if it could not be co nsidere d extensive. U.S.S.G. § 3B1.1(c). We review factual findings made by the districtcourt when determining the app ro priate sentence for clear error. United

States v. Mahaffey , 53 F.3d 1 28, 131 (6 th Cir. 1995).

Inthe PSR, the probation department re commende d that the districtcourt give Darwich a four-point enhanc ement for his leadership ro le in th e offen se. Dar wich obje cted to th

is enhanc ement. At sentencing, the district judg e a greed with the pr obation department, overruled Darwich’s objection, an d applied the four-level enhanc ement. Specifically, the district court stated in response to Darwich’s objection s tha t “paragraph

twenty-six speaks of

a four point enhancement for adjustmentin the ro le of the offense. And I’m de nying the objections to that en han cement for the reasons stated by the United States Pro

bation De

partmen t.” J.A. at 50 7 (Sentencing Tr.).

Onappeal, Darwich argues that th e district court did not make specific

factua l finding s on th e ques tion of lea dership and instead r

elied on t

he PSR in d eciding to apply

the enhanc ement. At the time the district court held D arwic h’s sentencinghearing, Rule 32(c)(1) of t he Federal Rules of Criminal Procedure provided that “[ f] or each matter controvert e d, 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 notaffect, sentencing.” Fed. R. Cr

im. P. 32(c)(1) (1999). As discerned by

our previous cases, the p urpose of this rule was “to ensur e th at sente ncing is based on reliable facts found by the cour

t itself after deliberation,” and thus, the districtcourt cannot “summarily adopt the factual finding s in the presentence report or simply declare that th e facts are supported by a preponderance of the

evidence.” United States

v. Tarw ater , 308 F.3d 494, 518 (6th Cir. 2002). This court required “li ter al complia

nce” wi th this rule

in order to enhance the accuracy

of the sent e nce and the clarity of theNos. 99-2147; 01-2044 United States v. Darwich 33

record. United Sta tes v. Par rott , 148 F.3d

629, 633 (6th Cir. 1998).

OnDecember 1, 2002, amendments to the Federal Rules of Criminal Procedu

re repl a ced Rule 32(c)(1) with Rule 32(i)(3). Rul e 32(i)(3)(B) states that “for any disputed portion of the pre sentence report or other controverted matter” dur in g sente ncing, the court must “rule on the dispute or de t ermine that a ruling is unnecessary

either because the matter will not affect sentenc ing, or b ecause

the cour t w il l not consider the matter in sentencing.”

Fed. R. Crim. P. 32(i)(3) (2003). This
newrule atte

mpts to eliminate confusion over whe ther cou rts
were required to make rulings on every objection to the PSR
or only those that

have t he potential to affect the sentence. Fed. R. Crim. P. 32(i)(3 ) advi sory committee’s note (2002)

. The new rule makes clear that controverte d matters at
se ntenc ing only

require a ruling if the disp

uted matte

r will affect the eventual sentence. P r ior to these revisions, we already had interpreted the ru le in a man ner cons istent with Rule 32(i)(3)’s recent

clarification. See, e.g. , United States v. Hu rst , 228 F.3d 751, 760 (6th Cir. 2000) (requ iring a defendant to “expre ss ly cal l [controverted matters] to the court’s attention

” befor e Rule 32( c)(1) would

apply ); Parrott , 148 F.3d at 634 (holding

that fail ure to fo llow Rule

32(c)(1) is harmless error when

resolution of the controverted matter would not affect the defendant’s sentence ).

B ecause the matter of leadership role was disputed by Darwich in his objections to the PSR, the district courthad an
o bligation

under Rule 32(i)(3) to issue a ruling on the disputed matter un less the matte

r would not affect sentencing
or would notbe considered in sentencing. Here, the disputed matter — whether Darwich was an org anizer or leader of this marijuana conspiracy

— absolutely would affe ct sentencing because without the four-point enhancement provided in the guideli nes, Darwich would have a tota l offense level of 25 whichallows for a sente

nce of a s little as f

ifty-seven months. The district court ne ver issued a specific ruling on whether the criminal

activity involved f

ive or mor

e in dividua ls or 34 United States v. Darwich Nos. 99-2147; 01-2044

28 The district co urt attribu ted 2 36 k ilogram s to Darwich notin g that its “findi ngs in thi s matter are based on the testimony of seve ral witnesses, all of whi ch demonstr ate t hat t he Defendant

was a wholesaler and retai ler of mariju ana, se lling a gre at dea l of m ari jua na ov er alon g per iod. ” J. A. at 561 (7/10 /01 D ist. Ct. Op . & O r.). Th e cou rt a lso co mm ented that it

was “impressed by the test imony whi ch showed t hat Canfie ld Market was basic ally a drug opera tion. ” I d. at 560. The dis tri ct court furt her commented o n the lengt h of the conspir acy and the number of small and large quan tity sales. Id. W e determine that t hese statements , without more, are insuff

icient t o constitut e a rul ing sat isf yi ng Rul e 32(i )(3) on whether the criminal activity was e xte nsive or involved more than fi ve people as is required for an enhancement under § 3B1.1(a). whether it could be considered extens ive. In fact, even thou gh Darwich objecte d to the PSR’s role- in-the-o ffense enhanc ement, the district court neglected to addre ss this objectioninits opinion. Instead, the district court’s opinion address edso lely the issue of whethe r 236 kilograms of marijuana could be attributed to Darwich. Thedistrict court embedded

any potentia

l reaso ned explanation for its resolutionof the dis

puted mat

te r wi thin its explanation of how the drug quantity

wa s estab lished be

yon d a reas onable doubt. 28 At the subsequent sent encing hearing, the district court likewise failed to issue a ruling onthis disputed matter. Inordering a four-level enhance ment, the district court exclusive ly

re lied on the reasoning of the probation department. However, we recently reiterated tha

t exclusive rel i ance on the PSR when a matter is in dispute cannot be considered

a ruli ng. See gen erally

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 indispute). Even though Treadwayapplied Rule 32(c)(1),
we hold th at a Rule 32(i)(3) ruling, similarly , requires more than blind

relianc e on the PSR.

Becau se t he PSR cannot be substituted for a ruling on a disputed matter and because the district court did not issue a ruling on the dispu ted matter of whether Darwich’s illeg al drugactivi ty was extensive or involved more than f iveNos. 99-2147; 01-2044 United States v. Darwich 35

i ndividual s, we conclude that the district court failed t o comply with Rule 32(i)(3). Accordingly, on remand the dis trict court sho uld issue a

ruling on the dispu

ted ma tter o f whether Darwich deserves an enhanc e ment f or role in the offense in accordance with Rule 32(i)( 3).

III. CONCL USION

Becau se the district c ourt coul d not properly conc lude that the evidence established fifty kilog rams beyond

a reasonable doubt, we REVERSE the district court’s determination of the amount of drugs, VACATE Darw ich’ s sentenc e based b oth
onthe i nsuf

ficient drug quantity

conclusion and also on the districtcourt’s failure to issue a ruling on the disputed matter of whether Darwich deserved a leade rship enhanceme

nt, and REMAND this case

to the district court

with instru

ctions to proc eed in accordance with this opinion and sentence Darwich to a pris on term no t exceedi ng sixty months. 36 United States v. Darwich Nos. 99-2147; 01-2044

______________________________________________ CONCURRING IN PART, DISSENTING IN P ART

______________________________________________ KENNEDY, Ci rcuit Judge, concurring in part and dissenting

in part. Defendant raised no hearsay

objection of any kind at his

sentenc ing hea

ring, in cluding no object ion to Rush’s testimon y , and indeed stipulated to the admission of extensive grand

ju ry t es ti mo ny, all of it hearsay . He did not raisethe hearsay

issue bef

ore the d

istrict c ourt on his resentencing

after r emand follo wing Appren di

. 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 Sent en cing Memorandum

and Objections (to the presentence report) he raised a questionas to the relia bility of Rush’s nephews’ hearsay statements. However, he raised no objection to their ad mi ss ib il it y. There w as nothing to alert t he distric t court to the present hear sa y i ssue. The issue was

first ra ised by this court at oral argum ent. Defend ant is ther

efore l imited to plain error review. Federa

l Rule of Evidence 103(d). To establish plain er ror, a c laimant mu st show th at there is “(1) error, (2) that is plain, . . . (3) that affe cts substantial rights,” and

(4) that “ seriously

affect[s] the fair

ness, in te gr it y, or public reputation of judicial proceedings.” United S ta tes
v. Cotton , 535 U.S. 625, 631 (2002) (internal quotation marks omit ted); Johnson v. United States , 520 U.S. 461, 466- 6 7 (1997).

The district court’s reliance on Orlando Rush’ s test imony
was not plain error because Rush’s testimony was not pla

inly he ar sa y. Feder

al Ruleof Evidence 801(d)(2)(E) provides that
a state me nt is not hearsay if it is “a statement by a coconspirator

of a party dur

ing the course and in furtherance of the consp iracy.” Ru sh’s n ephews bagge d illegal drugs for Darwich, and thus were co-conspirators. The majority agrees that Rush was a co-conspirator sincehe admitted to re-sellingNos. 99-2147; 01-2044 United States v. Darwich 37

drugs purchased from

Darwich. He also aided the conspiracy by providing transportation fo r his nephews to Darwich’s home with knowl edge that they were pa id to bag d rugs there. Alth ough we hav e no spec ific find ing that the nephe

ws’ statemen ts were made in f

urt heranc e of the c onspirac y, i t would not have been plain error for the di st rict cou rt to so find. A statement

is made in f

urthera nce of a conspira cy if it is in te nd ed to pr om ot e t he ob je ct iv es of

th e c on sp ir ac y. United St ates v . Hamilton , 689 F.2d 1262, 1270 (6th Cir. 1982). This includes statements “made to keep a conspirator abreas tof 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 b agging 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 “g one to Kno xville to cook some methamphetamine.” Id

. We held that , becau se suchstatements could be interpreted a s keeping the listener abreas tof the activities of the conspirators, they were admissible

under Rule 801(d)(2)(E). Id

. Based on this cas e law, it would not

have be en plain e

rror toho ld that Rush’s st at em en ts we re ad mi ss ib le no n- he ar sa y.
Orlando Rush’s testimony about his nephews’ s ta tements is alone suffi cient to affirm both the 50 kilograms bey ond a
reasona ble doubt and 100 kilograms by a prepond era nce of the evidenc e. Rush te stified that h is n ephews told him they bagged one pound per

day from “ some time” in 1996 until he surrendered

i n 1998 – dates roughly

consistent with the 104 week span within the conspiracy . He testified he knew tha t the nephews worked about every night since he dropped

them off about every da

y. Base d on the five-day-per-week 38 United States v. Darwich Nos. 99-2147; 01-2044

1 Had the defe ndant

object ed to Ru sh’ s hea rsay tes ti mony or

not sti pulate d to Agent Dodge’s testimony or the grand jury transcri pts, there is at l east s ome indicat ion in the re cord that

one of the n ephews cou ld have be en cal led a s a wi tnes s. (J. A. 129)

2 The st ipul ati on would have capped the sentence under the cap in the plea a greem ent. assumption, th is e vidence alone supports a finding of 236 kilograms of marijuana. 1

Becau se this evide

nce is more tha

n suffic ient to insu

late the districtcourt’s quantity ca lculation from possibl e Apprendi
error , I would not need to reac h the question of wh ethe r reliance on Agen

t Dodge’s testimony

about the conspiracy and transcripts of the grand jury proceedings would have been plain e r ror. Any hy

pothetical error is harmless. However, I cannot see h ow accepting a stipulation to grand jury test imo ny can be plain error or even er ror under the circumstances here.

Defendant

cannot e stablish that his rig hts are s ubstantia lly affected or the fairness of the proceed ings signific antly affected by a ny e rror he re, eve n if one f ound it did occur. After the rem and, the defendant and the government soug ht to have the d is trict 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, h ol ding that it wa s his responsibility under the sentenc ing guidelines to deter mine t he amount, and instead conducted the evidentiary

hear ing, 2 that def

endant w as willing

to stipulat

e to that a moun t is p ersuas ive th at nei ther h is ri gh ts nor t heNos. 99-2147; 01-2044 United States v. Darwich 39

3 Further, b ased on T om Smith’ s tes timony , up to 79 ki lograms c an be attribut ed to Darwich bas ed on nickel bag sa les alon e. Sm ith test ifi ed that 90 perce nt of

Canfi eld Marke t’ s cus tomer s pur chas ed nick el bags. His testi mony establis hed that between 65 and 70 customers came to the market during his s hift , which was f rom 5:00 p.m. to 9:00 p.m., closing time. He fur

ther tes ti fi ed th at t

he mar ket typical ly opened at 11:00 a.m

. Assum ing a rela tively constant rate of patronage throughout the day, the Can field Market had approximat ely16 cu stom ers per hou r, and 160 customers per day. If 90 perce nt of its 160 customers per day bought onegra m n ickel bags fi ve days per week, then over the course of t he

con spirac y Da rwich so ld 79 kilogra ms in nic kel ba gs alon e. fai rness and integ

rity of the pr

oceedin g are s ubstantia ll y affected by

a finding of 50 kilog

rams. 3

For the foregoing reasons, I

dissent from this portion of the court’s decision.