Keith R. Logan v. United States of America

8 Logan v. United States No. 98-3839
the source may not be from an unrelated proceeding. Here,
the district court explicitly noted that the source of such
evidence was from a related trial over which it had presided.
That decision was quite correctly affirmed on direct appeal.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0115P (6th Cir.)
File Name: 00a0115p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KEITH R. LOGAN ,
Petitioner-Appellant,
v.
UNITED S TATES OF AMERICA ,
Respondent-Appellee.
;>

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

-- 1 of 4 --

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

-- 2 of 4 --

6 Logan v. United States No. 98-3839
admitted in the case unless the probation officer takes the
stand and offers testimony which may be
cross-examined.
Id. The court also wrote that “[w]hen a contested sentencing
enhancement factor appears in the probation report and is not
proved by the government at the hearing, the court must
insure that the factor is otherwise proved by reliable evidence
before using it to increase the sentence.” Id.
As previously noted, Logan asserts that he is entitled to
challenge his firearm enhancement for a second time, through
a § 2255 motion, because McMeen allegedly signaled an
intervening change in the law. Logan, however, has failed to
persuade us that McMeen constitutes such a change, as
opposed to simply another application of existing law. Given
that the McMeen court did not engage in any analysis that
would suggest that it intended its holding to alter the
prevailing law with regard to sentencing procedures, we do
not believe that its ruling constituted an “intervening change.”
This is especially true in light of the fact that Logan has not
cited any pre-McMeen case allowing a district court to rely on
unsupported conclusions in a presentence report to justify an
enhancement. Cf. Chapman v. United States, 547 F.2d 1240,
1243 (5th Cir. 1977) (acknowledging an intervening change
in the law where two Supreme Court opinions “condemn[ed]
what this court had allowed” prior to those rulings).
We further conclude that even if McMeen had effectuated
an intervening change in the law, Logan would still not be
entitled to relief. Citing McMeen, Logan contends that in his
case “the Government simply relied upon the [presentence]
report itself to meet its burden.” This argument, however, is
belied by the record of the sentencing hearing. Although the
presentence report was the starting point for its analysis, the
district court made explicit factual findings based on evidence
already presented to the court in the trial of Logan’s co-
conspirators. In the opinion and order denying Logan’s
§ 2255 motion, the district court quite correctly noted that
“McMeen does not suggest . . . that it is improper for purposes
No. 98-3839 Logan v. United States 3
handgun in Logan’s apartment in November of 1991. Based
upon this information, the probation officer proposed a two-
point increase in Logan’s offense level pursuant to
§ 2D1.1(b)(1) of the United States Sentencing Guidelines. At
the sentencing hearing, Logan objected to the enhancement,
contending that he “never used a gun in anything.” The
district court overruled his objection. In support of its
decision, the district court made the following factual finding:
I am satisfied by a preponderance of the evidence that
Mr. Logan did possess a firearm in connection with the
offense, and that is based on statements of Mr. Bass and
the agents of the Bureau of Alcohol, Tobacco &
Firearms, and I find that Mr. Bass’s testimony was
credible, and certainly more credible at this point than
Mr. Logan’s denial.
Logan appealed, asserting that the district court improperly
enhanced his sentence for use of a firearm and violated
Federal Rule of Criminal Procedure 32(a) by relying on
outside information at sentencing without giving him
adequate notice. Finding these allegations of error
“meritless,” a prior panel of this court wrote as follows:
First, the court determined that the testimony by Alcohol,
Tobacco, and Firearm (“ATF”) agents and Logan’s co-
conspirators were [sic] more credible than Logan’s
testimony, and therefore, held a preponderance of the
evidence established [that] Logan possessed a firearm.
The court’s credibility determination was not clearly
erroneous, and therefore, the enhancement was proper.
Second, Rule 32(a) requires [that] the court give a
defendant access to the presentence report. Here, Logan
had access to the presentence report which clearly gave
notice [that] the court planned to rely on the testimony of
ATF agents and Logan’s co-conspirators during
sentencing.
United States v. Logan, No. 92-4365, 1994 WL 112864, at *2
n.1 (6th Cir. Mar. 31, 1994) (citations omitted).

-- 3 of 4 --

4 Logan v. United States No. 98-3839
On June 10, 1996, Logan filed a motion pursuant to 28
U.S.C. § 2255, requesting that the district court modify and
correct his sentence. He argued that this court’s subsequent
decision in United States v. McMeen, 49 F.3d 225 (6th Cir.
1995) (holding that the district court erred by relying on an
unsupported conclusion in a presentence report as a basis for
finding that sufficient evidence existed to support an
enhancement), established that the district court did not have
a proper basis for applying the enhancement. In an opinion
and order dated September 30, 1997, the district court denied
Logan relief, ruling that McMeen was not applicable to his
situation:
McMeen does not suggest, and the Court is not
persuaded, that it is improper for purposes of a sentence
enhancement to rely on testimony given under oath at a
separate, but related, trial. . . . Although petitioner was
not present at this trial, the Court is satisfied that
testimony given under oath is readily identifiable and
sufficiently reliable to satisfy “basic fairness.”
In this appeal, Logan argues that (1) McMeen constitutes an
intervening change in the law that permits him to again attack
the firearm enhancement through a § 2255 motion, even
though a prior panel of this court determined the issue against
him on direct appeal, and (2) the holding of McMeen
establishes that the district court erred.
II. ANALYSIS
A. Standard of review
“In reviewing the denial of a 28 U.S.C. § 2255 petition, this
Court applies a de novo standard of review of the legal issues
and will uphold the factual findings of the district court unless
they are clearly erroneous.” Hilliard v. United States, 157
F.3d 444, 447 (6th Cir. 1998) (citing Gall v. United States, 21
F.3d 107, 109 (6th Cir. 1994)).
No. 98-3839 Logan v. United States 5
B. This court’s decision in McMeen does not require that
Logan be resentenced
Even if a legal issue is determined against a defendant on
direct appeal, the defendant may nonetheless “secur[e] relief
under § 2255 on the basis of an intervening change in law.”
Davis v. United States, 417 U.S. 333, 342 (1974). In support
of his § 2255 motion, Logan argues that this court’s decision
in United States v. McMeen, 49 F.3d 225 (6th Cir. 1995),
constitutes “new precedent” demonstrating that the
conclusion reached in response to Logan’s firearm
enhancement challenge on direct appeal was “incorrect.”
In McMeen, the defendant pled guilty to making a false
statement on a credit card application in violation of 18
U.S.C. § 1014. At sentencing, the district court increased the
offense level by two points for “more than minimal planning”
pursuant to U.S.S.G. § 2F1.1(b)(2). In support of its decision,
the district court relied on an addendum to the presentence
report stating that the defendant participated in a larger credit
card scheme in Florida. Neither the addendum nor the
presentence report, however, cited any evidence linking the
defendant to the Florida scheme. The defendant denied such
participation.
On appeal, this court reversed and remanded for
resentencing because “[t]he information concerning the larger
offense in Florida d[id] not have sufficient ‘indicia of
reliability’ . . . to prove the defendant’s involvement, and may
not be used as the basis of an enhanced sentence.” McMeen,
49 F.3d at 226 (quoting United States v. Silverman, 976 F.2d
1502 (6th Cir. 1992) (en banc)). In reaching this conclusion,
the court stated as follows:
The mere conclusion of the probation report is an
insufficient basis for a finding that the evidence before
the sentencing judge supports the proposition of fact
asserted therein. Basic fairness requires that the evidence
be identified and its reliability demonstrated. In a
contested case, the position of the probation officer on a
material matter should not be treated as evidence

-- 4 of 4 --