20United States v. SaikalyNo. 98-3786first by objecting to the presentence investigation report and then in hisdirect appeal. His failure to preserve these issues has now resulted in aprocedural default, and it is improper for this Court to do as the majorityhas done here and consider his defaulted arguments on appeal.For the foregoing reasons, I dissent.*The Honorable Algenon L. Marbley, United States District Judge forthe Southern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0101P (6th Cir.)File Name: 00a0101p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.MANSOURW.SAIKALY,Defendant-Appellant.;>1No. 98-3786Appeal from the United States District Courtfor the Northern District of Ohio at Akron.No. 92-00200—Sam H. Bell, District Judge.Submitted: August 6, 1999Decided and Filed: March 23, 2000Before: BATCHELDER and COLE, Circuit Judges;MARBLEY, District Judge.*2United States v. SaikalyNo. 98-3786_________________COUNSELON BRIEF:Dennis P. Levin, Cleveland, Ohio, forAppellant. Samuel A. Yannucci, ASSISTANT UNITEDSTATES ATTORNEY, Akron, Ohio, for Appellee.MARBLEY, D. J., delivered the opinion of the court, inwhich COLE, J., joined. BATCHELDER, J. (pp. 18-20),delivered a separate opinion concurring in part and dissentingin part._________________OPINION_________________ALGENON L. MARBLEY, District Judge. DefendantAppellant Mansour W. Saikaly appeals the 240-monthsentence imposed by the district court upon resentencingfollowing the vacation of his conviction for using or carryinga firearm in relation to a drug trafficking crime pursuant to 18U.S.C. § 924(c) and the vacation of his designation as anarmed career criminal pursuant to 18 U.S.C. § 924(e).Specifically, Saikaly objects to the district court’s: 1)enhancement of his sentence pursuant to U.S.S.G.§ 2D1.1(b)(1) for possession of a firearm; 2) failure toconsider his objection to the amount of drugs for which hewas responsible; and 3) failure to consider his objection to hiscriminal history category and the determination that he was acriminal history category V rather than a IV. Saikaly alsoobjects to a typographical error on the judgment andcommitment order filed after the resentencing. For thereasons that follow, weAFFIRMin part andREVERSEinpart, andREMANDfor further proceedings consistent withthis opinion.No. 98-3786United States v. Saikaly191The majority opinion inaccurately claims “the Dissent’s conclusionis that these issues were not contained in Saikaly’s §2255 habeas petitionand therefore have not been preserved for appellate review.” This isnotthe basis for this dissenting opinion. It is the majority’s attempt tocharacterize Saikaly’s challenges as being directed solely to “the ‘new’presentence report” to avoid finding a procedural default that is the basisfor this dissent. Saikaly’s original sentence was based,inter alia, upontwo factual findings: (1) that the amount of cocaine allocated to him fellwithin the range of 5 to 15 kilograms, and (2) that his criminal historyplaced him at Category V. Therefore, if Saikaly disputed the accuracy ofeither of those findings, it was incumbent upon him to challenge themhis counsel had been ineffective in failing to object to the presentence report’s determination that he was an armed careeroffender, but was denied relief on the remaining claims. The§ 2255 motion currently before us on appeal followed. In it,Saikaly challenges the quantity of drugs attributed to him forpurposes of sentencing and the criminal history categoryestablished pursuant to the Sentencing Guidelines.We will not review on appeal claims presented in § 2255habeas proceedings that were not presented previously ondirect appeal.See Chandler v. Jones, 813 F.2d 773, 777 (6thCir. 1987) (“It is a well-established principle of appellatereview that appellate courts do not address claims notproperly presented below . . . . [T]his court relie[s] on thisprinciple in rejecting attempts by habeas petitioners to assertnew claims on appeal not presented in their petition orproceedings below.”).See alsoUnited States v. Vaughn, 955F.2d 367, 368 (5th Cir. 1992) (per curiam) (holding that nonconstitutional claims that could have been raised on directappeal may not be asserted in a collateral proceeding). Theissues regarding the quantity of drugs attributed to Saikalyand the guideline calculation of his criminal history categorywere cognizable on direct appeal. Nonetheless, neither in hisdirect appeal nor in his original or supplemental § 2255motions did Saikaly ever assign error to the district court’sdecision concerning those matters. In fact, Saikaly first raisedthe issueafterthe government filed its response to Saikaly’s§2255 petition. Because Saikaly failed to preserve the issuesfor review, they are not properly before this Court.118United States v. SaikalyNo. 98-3786______________________________________________CONCURRING IN PART, DISSENTING IN PART______________________________________________ALICE M. BATCHELDER, concurring in part, dissentingin part. I concur in part III.A of the majority’s holding,affirming the district court’s enhancement of Saikaly’ssentence pursuant to U.S.S.G. § 2D1.1(b)(1). For the reasonsthat follow, however, I dissent from parts III.B and III.C,which remand to the district court the issues concerning thequantity of drugs attributed to Saikaly and his criminal historycategory.As the majority states, Saikaly raised “various challenges”to his conviction on direct appeal in 1995. To be moreprecise, Saikaly assigned as error in the district court: (1) thefailure to suppress evidence seized in violation of the “knockand announce” rule; (2) the violation of his Sixth Amendmentright to a speedy trial; (3) the failure to give a multipleconspiracy jury instruction; (4) insufficiency of the evidenceto support conviction on the conspiracy charge; (5)insufficiency of the evidence to support conviction on thefirearm charges; and (6) the admission of certain physicalevidence seized in New York when he was arrested onunrelated charges.See United States v. Ross, 53 F.3d 332,1995 WL 253183 (6th Cir. April 27, 1995) (unpublished).After his unsuccessful appeal, Saikaly filed a § 2255 motion,followed by a supplemental § 2255 motion, in which heclaimed that: (1) his § 924(c) conviction was invalid underBailey;(2) he was sentenced improperly as an armed careercriminal under § 924(e)(2); (3) evidence seized in New Yorkduring an unrelated arrest was improperly admitted at trial;and (4) his counsel was ineffective at both the trial andsentencing stages because counsel failed to move forsuppression of evidence seized in New York in violation ofhis Fourth Amendment rights and failed to object to thedetermination in the pre-sentence report that Saikaly shouldbe sentenced as an armed career offender. Saikaly prevailedin the district court on theBaileyclaim and on the claim thatNo. 98-3786United States v. Saikaly31Records indicated that Gadsen purchased the Glock as well as aWinchester .12 gauge shotgun (seized from Saikaly’s bedroom when hewas arrested) and a Ruger 9mm semi-automatic pistol (seized in a raid ofthe crack house thought to be run by Saikaly).2The original indictment charged the eighteen defendants withconspiracy to distribute and possess with intent to distribute cocaine.I.In May 1992, Saikaly was arrested following a year-longinvestigation in Akron, Ohio, targeting large-scale drugdealers James Dillehay, Jerome Gordon and AnthonyJohnson. Saikaly allegedly ran a crack house on the southside of Akron and purchased cocaine from Gordon andJohnson on numerous occasions. Saikaly met Johnsonthrough David Shepherd, who also ran a “crack house” on thesouth side of Akron. Initially, Saikaly and Shepherd werefriendly, but a rift developed. According to the presentenceinvestigation report, Saikaly learned that Shepherd intendedto rob him. To protect his narcotics transactions, Saikalyallegedly instructed his girlfriend, Lisa Gadsen, to purchase aGlock 9mm semi-automatic pistol for him.1In a wiretappedphone conversation, Johnson told Shepherd that Saikaly hadshown him the Glock.On May 1, 1992, Saikaly and two individuals were stoppedin New York City in a black Blazer owned by Saikaly’sbrother, Maurice. The individuals were stopped because theBlazer matched a description of a vehicle involved in arobbery. The officers searched the vehicle and foundGadsen’s loaded Glock 9mm in the locked glovecompartment, ammunition, and $22,000 in cash. Saikaly andhis companions were arrested, but those charges weredismissed and Saikaly returned to Akron.On May 22, 1992, Saikaly was again arrested at hisresidence in Akron and ultimately charged, along with twelveco-defendants, in a ten-count superseding indictment2forconspiracy to distribute and possess with the intent to4United States v. SaikalyNo. 98-3786distribute cocaine, and various other drug and firearmcharges. Saikaly was named in Count 1 (conspiracy), Count 7(using or carrying a firearm in connection with a drugtrafficking crime, in violation of 18 U.S.C. § 924(c)), andCounts 8 and 9 (felon in possession of a firearm, in violationof 18 U.S.C. § 922(g)(1)). Co-defendants Gordon andJohnson entered pleas of guilty and served as governmentwitnesses at trial, providing much of the testimony against theother defendants. Saikaly presented four witnesses on hisbehalf – his parents and his siblings. Saikaly’s brother,Maurice, testified that he received the Winchester shotgunfrom Lisa Gadsen as payment for electronics work he haddone for her, that Gadsen owned the Glock, and that he hadallowed Gadsen to drive his Blazer. Maurice also testifiedthat the $22,000 found in the Blazer belonged to him.Saikaly’s mother testified that she found the Winchestershotgun in the garage where Maurice conducted hiselectronics business, and that she moved it to Saikaly’sbedroom for safekeeping.The jury was not persuaded by Saikaly’s defenses to thefirearms charges and convicted him on all counts. Thedistrict court sentenced Saikaly to a total of 360 monthsimprisonment (300 months on Counts 1, 8 and 9 and 60months consecutive on Count 7). The district court found thatSaikaly was an armed career criminal pursuant to U.S.S.G.§ 4B1.4 and assigned him criminal history category V. Inaddition, the district court found that Saikaly was responsiblefor more than 5 but less than 15 kilograms of cocaine.Saikaly appealed his conviction, raising various challenges tothe search and seizure of his home, the sufficiency ofevidence, and the admission of evidence stemming from hisarrest in New York. He also claimed a violation of theSpeedy Trial Act. This court affirmed Saikaly’s conviction,see United States v. Ross, 53 F.3d 332 (6th Cir. 1995), and theUnited States Supreme Court denied certiorari.Saikaly then filed a motion to vacate, set aside or correcthis sentence pursuant to 28 U.S.C. § 2255, raising four issuesas construed by the district court: 1) Saikaly’s § 924(c)No. 98-3786United States v. Saikaly17D. Typographical ErrorSaikaly complains that although the district court vacatedthe § 924(c) conviction, the second judgment andcommitment order continues to state that Saikaly was foundguilty of that offense. Saikaly is correct, and the governmentacknowledges the error as well. Accordingly, upon remand,the district court should correct the judgment andcommitment order pursuant to Federal Rule of CriminalProcedure 36, which allows for the correction of such clericalerrors.IV.For the foregoing reasons, weAFFIRMin part andREVERSEin part andREMANDfor further proceedings inaccordance with this opinion.16United States v. SaikalyNo. 98-378610At resentencing, the government stated that evidence indicated thatSaikaly entered the conspiracy in 1991. That would still place Saikaly’s1985 and 1986 juvenile convictions beyond the five-year limit in criminalhistory computation.The government was correct in stating that an overt act set out in theindictment is not the proper starting point for Saikaly’s offense; rather, theguidelines provide that the term “commencement of the instant offense”includes any relevant conduct.SeeU.S.S.G. § 4A1.2 cmt. n.8. Thedistrict court failed to determine when Saikaly’s relevant conductcommenced.The sentencing which we are speaking is the onewhich took place originally. The point of our hearingtoday is to reduce that sentence by virtue of a change inthe law since the time the sentence was imposed, whichis obviously to Mr. Saikaly’s benefit. I don’t see this,unless you have some thoughts, as being a totalresentencing with a sense of recommitment to the figureshere.In addition to that, it does not seem to me that therecollection that I have of the testimony does notestablish, even by a preponderance of the evidence, thatthe January 29th date is the beginning of this, from thestandpoint of the guideline configuration.For these reasons, I think the category V is applicablehere.J.A. at 429-30.This Court finds that Saikaly’s criminal history categorywas at issue. For the reasons set out in the previous section,the district court should have fully considered Saikaly’sargument. The district court gave a limited reason for whySaikaly was a criminal history category V: that it did notbelieve that January 29, 1992 was the date Saikaly entered theconspiracy. However, the district court failed to make aspecific finding of the date that Saikaly entered theconspiracy, or commenced the instant offense.10This case isREMANDEDfor consideration of this issue.No. 98-3786United States v. Saikaly5conviction was not valid afterBailey v. United States,516U.S. 137 (1995); 2) Saikaly’s Fourth Amendment rights hadbeen violated in the seizure of evidence used against him attrial; 3) the evidence obtained from the New York arrestshould not have been admitted and used against him; and 4)Saikaly was denied effective assistance of counsel at trial andon appeal. The district court vacated Saikaly’s § 924(c)conviction, finding that there was no evidence that he “used”or “carried” a firearm as defined byBailey. In addition, thedistrict court agreed with Saikaly on one of his specific claimsregarding ineffective assistance of counsel: that his trialcounsel failed to object to his classification as an armedcareer criminal in the presentence report because two of thethree underlying offenses did not qualify as serious drugoffenses or as violent felonies under the statute. The districtcourt concluded:Mr. Saikaly’s petition for relief is granted with respectto his § 924(c) claim and his request for resentencingbased on the court’s utilization of an erroneouspresentence report. In all other regards, Mr. Saikaly’spetition is denied.The Probation Department is hereby ordered to createa new presentence form for Mr. Saikaly. Mr. Saikaly’snew sentencing hearing will be scheduled presently.The new presentence report ordered by the district court setforth the following findings and/or recommendations:1) that a two-level enhancement pursuant to U.S.S.G.§ 2D1.1(b)(1) for possession of a firearm should beapplied;2) that the amount of cocaine the government attributedto Saikaly was more than 5 but less than 15 kilograms,resulting in a base offense level of 32; however, thereport stated that the amount of cocaine Saikalyattributed to himself was the total amount listed in theovert acts set out in the indictment, or 2.55676United States v. SaikalyNo. 98-3786kilograms, resulting in a base offense level of 28 (forat least 2 but less than 3.5 kilograms); and3) that Saikaly was a criminal history category IV.Saikaly filed various objections to the new presentencereport and also filed a detailed memorandum in support ofhis objections. Saikaly objected to the following: theenhancement of his sentence for possession of a firearm; theamount of cocaine attributed to him; the classification as anarmed career criminal; the failure to decrease his sentence foracceptance of responsibility; the criminal history categoryover-represented the seriousness of his past; the two-levelenhancement for an aggravating role rather than a two-levelreduction for a mitigating role; and the imposition of a fine.At sentencing, the district court noted Saikaly’s objections,stating:I read your brief and I think it’s marvelously well done,but, as I indicated, the purpose of the court now is not toreconfigure the sentence. The purpose of the court nowis to resentence in conjunction with the report. And inmy opinion that does not open the whole question ofsentencing, the quantity of drugs, et cetera, which I knowto be a position that you probably don’t agree with.The district court determined that Saikaly’s behaviorwarranted the two-level enhancement for possession of afirearm. The district court briefly noted that Saikaly was acriminal history category V, vacated the § 924(c) convictionand determined that Saikaly was not an armed career criminal.The district court resentenced Saikaly to 240 monthsimprisonment. This timely appeal followed.II.“A court’s factual findings in relation to the application ofSentencing Guidelines are subject to a deferential ‘clearlyerroneous’ standard of review. Legal conclusions regardingthe Guidelines, however, are reviewed de novo.”UnitedNo. 98-3786United States v. Saikaly159The guidelines provide that a criminal history point is added for ajuvenile sentence imposed within five years of the defendant’scommencement of the instant offense.SeeU.S.S.G. § 4A1.2(d). Here,the conspiracy allegedly started in 1988, and Saikaly’s juvenileconvictions at issue were in 1985 and 1986.conspiracy, were used as the starting point in order tocount prior juvenile arrests.9Over the years the relevant conduct issues said that,well, if there is any evidence that a person hasn’t been ina conspiracy since its beginning, then in essence the timelimits vary according to when it can be determined that’swhen the person actually entered.When I did the reconsideration, I went to the first overtact which appeared in the indictment and found that thatoccurred on January 29th, 1992. On the basis of that, Icomputed the juvenile arrests. And since juvenileconvictions only carry a five year rather than a 10 year or15 year, as the adults do, some of the early juvenilearrests that have been configured into the original reportdid not get points in the revised ruling. That differenceis what created a four rather than a five.J.A. at 428 (footnote added).The government disagreed, stating that the issue was notbefore the court. The government also stated:I would also indicate that using an overt act as thestarting point because, as the court is aware, overt actsare something that the government need not allege.The fact that the first overt act occurred in 1992 doesnot square with the testimony that was presented in thiscase, which indicated that Mr. Saikaly was dealing withJerome Gordon and Anthony Johnson during 1991.J.A. at 429.The district court apparently agreed with the government,stating:14United States v. SaikalyNo. 98-37867Under the same rationale, the issues raised in subpart III.C are alsoproperly before this Court.8More than 5 kilograms of cocaine requires 20 year mandatoryminimum.See21 U.S.C. § 841(b)(1)(A)(ii).failure to make such a ruling, is indeed properly before thisCourt.The Court finds that the actual issues raised in subpartsIII.B and C are properly before it. Accordingly, this case isREMANDEDto the district court for consideration of theissue of quantity of drugs attributable to Saikaly.C. Criminal History Category7Saikaly argues that the district court erred by determiningthat he was a criminal history category V, rather than acriminal history category IV, as recommended in the secondpresentence report.At the outset, there appears to be a discrepancy in thedistrict court’s determination. At the sentencing hearing, thedistrict court stated that Saikaly was a criminal historycategory V; however, the second judgment and commitmentorder states that Saikaly is a criminal history category IV.The district court did not rely on the guideline range asdetermined by the offense level and the criminal historycategory in sentencing because a statutory mandatoryminimum was applicable.8Thus, it is uncertain whichcriminal history category Saikaly was assigned.At resentencing, the district court noted that there wasuncertainty as to Saikaly’s criminal history category. Theprobation officer explained why he had determined thatSaikaly was a criminal history IV rather than V:Some of [Saikaly’s] juvenile arrests had been appliedbecause of 1988, which was the beginning of theNo. 98-3786United States v. Saikaly7States v. Latouf,132 F.3d 320, 331 (6th Cir. 1997),cert.denied,118 S. Ct. 1572 (1998).III.A. Enhancement for Possession of a FirearmThe United States Sentencing Guidelines permit asentencing enhancement for possession of a firearm during adrug-trafficking crime.SeeU.S.S.G. § 2D1.1(b)(1). Thisenhancement does not apply when a defendant is convictedand sentenced for violating 18 U.S.C. § 924(c) because to doso would constitute impermissible double counting.SeeU.S.S.G. § 2K2.4 cmt. n.2. In this Circuit, it is wellestablished that a district court has the authority to apply the§ 2D1.1(b)(1) enhancement when a defendant is resentencedafter the vacation of a § 924(c) conviction.See Pasquarillev. United States,130 F.3d 1220, 1222 (6th Cir. 1997) (statingthat “§ 2255 gives the court jurisdiction and authority toreevaluate the entire aggregate sentence to ensure that thedefendant receives the appropriate sentence on the remainingcount”). In addition, this Court has held that the applicationof the enhancement does not violate the Double JeopardyClause.See id.at 1222-23.To obtain an enhancement pursuant to § 2D1.1(b)(1), thegovernment must show by a preponderance of the evidencethat the defendant possessed the firearm during the drugtrafficking offense.See United States v. Sanchez,928 F.2d1450, 1460 (6th Cir. 1991). Once the government satisfies itsinitial burden of showing that a weapon was present,however, the burden shifts to the defendant to show that itwas clearly improbable that the weapon was connected to theoffense.See United States v. McGhee,882 F.2d 1095, 1097-98 (6th Cir. 1989). As the commentary to U.S.S.G. § 2D1.1explains:The enhancement for weapon possession reflects theincreased danger of violence when drug traffickerspossess weapons. The adjustment should be applied ifthe weapon was present, unless it is clearly improbable8United States v. SaikalyNo. 98-3786that the weapon was connected with the offense. Forexample, the enhancement would not be applied if thedefendant, arrested at his residence, had an unloadedhunting rifle in the closet.U.S.S.G. § 2D1.1 cmt. n.3.Here, Saikaly argues that there was no evidence that hepossessed a firearm during the drug-trafficking offense.Saikaly’s argument wholly lacks merit. The evidenceindicated that Saikaly obtained the Glock 9mm to protect hisdrug-trafficking activities and that he showed the Glock toJohnson, one of his drug sources. In addition, the tapedconversations from Johnson’s wiretapped telephone indicatesthat Johnson told Shepard that Saikaly was carrying the Glockin a shoulder holster. Moreover, the Glock was found – alongwith $22,000 in cash – in the vehicle Saikaly was driving inNew York City. Finally, a loaded Winchester shotgun wasseized from Saikaly’s bedroom when he was arrested. Thisevidence was more than enough to support the district court’sconclusion that Saikaly possessed a firearm.Saikaly argues that he presented evidence “explaining” thepresence of the firearms. The evidence that Saikaly presentedwas that Lisa Gadsen owned the firearms. Saikaly’s brothertestified that Gadsen had driven the Blazer, and that Gadsenput the Glock in the glove compartment. Saikaly’s brotherfurther testified that Gadsen gave the Winchester to him,which was followed by Saikaly’s mother’s testimony thatsheput the Winchester in Saikaly’s room. As the district courtstated at the resentencing hearing, “with all due respect, Idon’t think anybody in the courtroom believed what[Saikaly’s brother and mother] had to say.”Saikaly also seems to rely on the fact that he did not ownthe firearms. This is irrelevant. The issue is not ownership,but possession of the firearms. Here, a preponderance of theevidence indicated that Saikaly possessed the firearms duringthe drug-trafficking conspiracy. Saikaly failed to show thatthe firearms were not connected to the offense.No. 98-3786United States v. Saikaly13Court to make that determination; the issue is whether thedistrict court erred by failing to consider Saikaly’s objection.We find that it did.The Dissent would find that the quantity of drugs attributedto Saikaly and the criminal history category assigned to himare not properly before this Court. The basis of the Dissent'sconclusion is that these issues were not contained in Saikaly's§ 2255 habeas petition and therefore have not been preservedfor appellate review. The Dissent has mischaracterized theissues that are presently before this Court. Saikaly's appealdoes not arise from a § 2255 habeas motion; rather, it arisesfrom the sentence the district court imposed pursuant to the"new" presentence report. Saikaly appeals the district court'sfailure to consider objections to the new presentence report.The Dissent's assertion would be correctifSaikaly's appealbefore this Court were based on his § 2255 habeas petition,see Chandler v. Jones, 813 F.2d 773, 777 (6th Cir. 1987), butthis is not the case.Here, following Saikaly's successful § 2255 motion, thedistrict court ordered the Probation Department to prepare a"new" presentence report. The new presentence reportdiffered in substance from the first report in that, for example,for the first time 2.5587 kilograms of cocaine were attributedto Saikaly.SeePart I. After the new report was filed, Saikalytimely filed his objections. Specifically, Saikaly objected tothe quantity of drugs that were attributed to him and to thecriminal history category he was assigned. The district courtrefused to consider these timely filed objections when itsentenced Saikaly, thereby disregarding the mandate ofFederal Rule of Criminal Procedure 32(c)(1). Saikaly's directappeal followed.Once the district court ordered the creation of a newpresentencing report, it was obligated to rule on Saikaly's"unresolved objections" and make a "written record of suchfindings and determinations." Fed. R. Crim. P. 32(c)(1);seealso United States v. Tackett, 113 F.3d 603, 613-14 (6th Cir.1997). Saikaly's appeal, which is based on the district court's12United States v. SaikalyNo. 98-37866By analogy, Fed. R. Crim. P. 32(c)(3)(C), which requires districtcourts to allow a defendant the right to allocution at sentencing, has beenheldnotto apply at § 2255 resentencings.See Pasquarille,130 F.3d at1223 (stating that “[t]here is nothing in § 2255 which provides that adefendant has either an absolute right to be present or a right of allocution[at resentencing]”). There is, however, a distinguishing factor betweenthis case and thePasquarillecase: thePasquarillecourt noted that “thereare no disputed facts in this case.”Id.Here, we certainly have disputedfacts, which requires a different result.With respect to a district court’s obligations at sentencing,Federal Rule of Criminal Procedure 32(c)(1) requires adistrict court to make a factual finding for each contestedfactor of the presentence report. This circuit requires “literalcompliance” with the rule, because such factual findings help“to ensure that defendants are sentenced based on accurateinformation and provide[ ] a clear record for appellate courts,prison officials and administrative agencies who may later beinvolved in the case.”United States v. Tackett,113 F.3d 603,613-14 (6th Cir. 1997).6The district court should have considered Saikaly’sobjections to the second, “new” presentence report. Thedistrict court ordered the preparation of a new report withoutlimitation, and the new report set forth a statement regardingthe amount of drugs that differed from the originalpresentence report. Saikaly filed detailed objections to thesecond presentence report prior to the resentencing hearing.Given the importance of the presentence report, district courtsshould address any objections that a defendant, or that thegovernment might have, to a “new” report that containsmaterially different information than the first presentencingreport even if these objections come during resentencing.This reasoning corresponds with this circuit’s de novoapproach to resentencing following remand after directappeal.Saikaly may not prevail on the merits of his argument,because it seems fairly obvious that Saikaly could reasonablyforesee that more than five kilograms of cocaine wereattributable to the conspiracy. Nonetheless, it is not for thisNo. 98-3786United States v. Saikaly93The superseding indictment in the case set forth overt acts indicatingthat the conspiracy was responsible for well over 5 kilograms of cocaine.The district court properly applied the § 2D1.1(b)(1)enhancement.B. Quantity of DrugsSaikaly argues that the district court erred by failing toconsider his objections to the second presentenceinvestigation report regarding the amount of drugs attributedto him. The government counters that Saikaly waived thisissue by failing to raise it on direct appeal and in his § 2255motion.The first presentence investigation report indicated thatSaikaly was responsible for more than 5 but less than 15kilograms of cocaine. Saikaly did not make a definitiveobjection to that finding. The district court, however,construed one of his objections as pertaining to the amount ofdrugs and stated that even if Saikaly was not personallyresponsible for more than 5 kilograms of cocaine, “he still isliable for quantities based on those which were reasonablyforeseeable to be involved in by the members of theconspiracy itself.” This was the extent of the district court’sfindings regarding the amount of drugs.3In the second presentence investigation report, preparedafter Saikaly’s successful § 2255 motion, the probation officeragain stated that the government’s position was that Saikalywas responsible for more than 5 but less than 15 kilograms ofcocaine. In that report, however, the probation officer alsocalculated the amount of drugs attributable to Saikalyindividually by adding the quantities set forth in the overt actslisted in the superseding indictment. The report indicated thatthe amount, 2.5567 kilograms, was the amount of drugsSaikaly believed was attributable to him. However, Saikalyobjected to that finding (2.5567 kilograms) arguing that notall of the drug amounts listed in the overt acts associated withhim should be attributed to him. Saikaly stated that he was10United States v. SaikalyNo. 98-37864Some circuits disagree, however, viewing a de novo approach toresentencing as an unwarranted “second bite of the apple.”See UnitedStates v. Marmolejo,139 F.3d 528, 531 (5th Cir.),cert. denied,119 S. Ct.622 (1998);United States v. Parker,101 F.3d 527, 528 (7th Cir. 1996).responsible for less than one kilogram of cocaine. Saikalyalso objected to the government’s position: that he wasresponsible for more than 5 but less than 15 kilograms. Atthe resentencing hearing, the district court did not address theissue of the amount of drugs, stating that the purpose of theresentencing hearing was limited and, thus, the amount ofdrugs attributable to Saikaly was not at issue.At first glance, it would appear that the government iscorrect – that Saikaly waived objection to the amount of drugsattributable to him by failing to raise the issue in his directappeal and in his § 2255 motion. But, there is a problem withthe government’s argument. Saikaly could not have objectedto a presentence report that had not yet been prepared.Saikaly possibly could have objected to the amount of drugsset forth in the first presentence report; nonetheless, aquestion remains: what is the district court’s responsibility inaddressing objections to a new and different presentencereport prepared for a defendant’s resentencing?This court has clearly stated that on remand following adirect appeal, a district court can consider de novo anyarguments regarding sentencing if the remand order does notlimit its review.See United States v. Jennings,83 F.3d 145,151 (6th Cir. 1996) (finding that “[t]he only constraint underwhich the district court must operate, for the purposes ofresentencing, is the remand order itself. Where the remanddoes not limit the District Court’s review, sentencing is to bede novo.”). A majority of circuits agree with a de novoapproach to resentencing.4See, e.g., United States v.Caterino,29 F.3d 1390, 1394-95 (9th Cir. 1994);UnitedStates v. Cornelius,968 F.2d 703 (8th Cir. 1992);UnitedStates v. Smith,930 F.2d 1450, 1456 (10th Cir. 1991);UnitedStates v. Sanchez Solis,882 F.2d 693, 699 (2d Cir. 1989).The policy underlying the presumption of de novoNo. 98-3786United States v. Saikaly115The government espoused this position with respect to the first issuepresented in this appeal.resentencing is to give the district court discretion inbalancing all the competing elements of the sentencingcalculus.See United States v. Campbell,168 F.3d 263, 265(6th Cir.),cert. denied, No. 99-5037, 1999 WL 462187 (U.S.Oct. 4, 1999).Considering the foregoing, had this been a general remandafter a direct appeal, the district court would have beenobligated to consider Saikaly’s objections to the presentencereport. This case, however, arose from a § 2255 motion, inwhich the district court ordered the probation department toprepare “a new presentence form.” The district court was notoperating from an order of remand from the court of appeals,as in the above-mentioned cases.The same concerns apply at resentencing whether it occursfollowing direct appeal or a § 2255 motion. In the context ofa § 2255 motion, this court has held that a district court canapply an enhancement to a drug sentence when resentencinga defendant after vacating a § 924(c) conviction.5SeePasquarille,130 F.3d at 1222. ThePasquarillecourt noted:It is clear that the 924(c) offense and the underlyingoffense are interdependent, and must be considered ascomponents of a single comprehensive sentencing plan.Therefore, § 2255 gives the court jurisdiction andauthority to reevaluate the entire aggregate sentence toensure that the defendant receives the appropriatesentence on the remaining count.Id.(citation omitted). The government counters thisargument by stating that the present issues are not“interdependent” as is the case with § 924(c) and U.S.S.G.§ 2D1.1(b)(1). Despite this difference, however,Pasquarillemakes it clear that a district court has the authority, onresentencing, to reevaluate “the entire aggregate sentence.”