United States of America v. Mike Darwich

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0245P (6th Cir.)
File Name: 03a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIKE DARWICH,
Defendant-Appellant.
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Nos. 99-2147;
01-2044
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-80508—Lawrence P. Zatkoff, Chief District Judge.
Argued: October 31, 2002
Decided and Filed: July 24, 2003
Before: KEITH, KENNEDY, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Robert M. Morgan, Detroit, Michigan, for
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Robert M. Morgan, Detroit, Michigan, for
2 United States v. Darwich Nos. 99-2147; 01-2044
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
MOORE, J., delivered the opinion of the court, in which
KEITH, J., joined. KENNEDY, J. (pp. 36-39), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-
Appellant Mike Darwich (“Darwich”) appeals from the
eighty-eight month sentence imposed by the district court
after he was convicted of conspiracy to distribute marijuana
in violation of 21 U.S.C. § 846, and after he was subject to
criminal forfeiture pursuant to 21 U.S.C. § 853. Darwich
challenges the standard of proof used to establish drug
quantity for sentencing, the sufficiency of the evidence used
to prove drug quantity, and the receipt of firearm and
leadership-role sentence enhancements.
Darwich was indicted for various drug-related crimes.
Pursuant to a plea agreement, Darwich pleaded guilty to the
conspiracy to distribute marijuana charge and agreed to the
criminal forfeiture. The plea agreement, expressly noting the
parties’ decision to present evidence on the amount of
marijuana at issue, stated that Darwich’s prison sentence
would not exceed ninety-six months. Thereafter, a probation
officer prepared a presentence investigative report (“PSR”)
calculating Darwich’s base offense level at 26, to which
Darwich objected. The PSR arrived at this base offense level
calculation through the use of a drug quantity averaging
formula that held Darwich responsible for five pounds of

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Nos. 99-2147; 01-2044 United States v. Darwich 3
1The formula used was set forth in an addendum to the PSR and was
accepted by both district court opinions: “453.6 grams (equivalent to one
pound of marijuana) x 5 days per week x 52 weeks per year x 2 years that
the conspiracy spanned. This resulted in a total of 235,872 grams of
marijuana divided by 1,000 (grams to kilograms conversion) equals a total
of 236 kilograms of marijuana.” Joint Appendix (“J.A.”) at 550 (7/10/01
Dist. Ct. Op. & Or.). United States Sentencing Guidelines (“U.S.S.G.”)
§§ 2D1.1(a)(3) and 2D1.1(c)(7) provide that a base offense level of 26 is
required for offenses involving at least 100 but less than 400 kilograms
of marijuana. U.S.S.G. §§ 2D1 .1(a)(3), 2D1.1(c)(7) (1998 ).
marijuana per week for the length of the conspiracy.1 The
district court agreed with the PSR and determined that
Darwich’s conspiracy involved 236 kilograms of marijuana.
Darwich was sentenced to eighty-eight months in prison and
four years of supervised release, and he immediately filed an
appeal. Subsequent to the filing of the appellate briefs but
before oral argument, the Supreme Court decided Apprendi v.
New Jersey, 530 U.S. 466 (2000). In light of the Court’s
decision in Apprendi and the government’s failure to allege
any specific quantity of marijuana in the indictment, both
Darwich and the government filed motions in this court to
waive oral argument and requested that the case be remanded
to the district court for resentencing to the statutory maximum
of sixty months pursuant to § 841(b)(1)(D). On remand, the
district court declined to consider the parties’ sentence
stipulation and determined that the evidence that the
conspiracy involved 236 kilograms of marijuana was
established beyond a reasonable doubt. Darwich, thereafter,
filed this current appeal. We now REVERSE the district
court’s determination of the amount of drugs, VACATE
Darwich’s sentence because it was error for the district court
to find that the necessary drug quantity was proven beyond a
reasonable doubt and because the district court failed to issue
a ruling on the disputed matter of Darwich’s leadership role,
and REMAND for resentencing to no more than sixty months
in accordance with this opinion.
4 United States v. Darwich Nos. 99-2147; 01-2044
I. BACKGROUND
Darwich owned and operated the Canfield Market in
Detroit, Michigan. The market sold snacks and alcoholic
beverages but did not sell any milk, eggs, or bread. Market
customers also were able to purchase nickel bags of marijuana
from Darwich. According to Tom Smith (“Smith”), a former
employee of the market, an estimated nine out of ten market
customers purchased marijuana from Darwich. Darwich
stored the marijuana on his person and in Pringles brand
potato chip cans on the store shelves. The market’s covert
operations were uncovered when the FBI investigated
whether police officers were protecting a drug business at the
market.
On June 18, 1998, Darwich was indicted for conspiracy to
distribute marijuana in violation of 21 U.S.C. § 846; use or
carrying of a firearm in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1) & (2); possession with
intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1); two counts of maintaining a place for distributing
and using marijuana in violation of 21 U.S.C. § 856; and
criminal forfeiture pursuant to 21 U.S.C. § 853. The
indictment alleged that the conspiracy took place between
March 1996 and April 1998. Darwich subsequently entered
into a Rule 11 plea agreement on the marijuana conspiracy
charges under 21 U.S.C. § 846 and agreed to the criminal
forfeiture under 21 U.S.C. § 853. The government dismissed
all other charges brought against Darwich. Although the
parties did not agree on a computation of the sentencing
guidelines or a base offense level, they agreed to present
evidence to the court for sentencing purposes, and the plea
agreement stated that Darwich’s prison sentence would not
exceed ninety-six months.
A probation officer’s calculations for the PSR set
Darwich’s base offense level at 26, for distribution of more
than100 but less than 400 kilograms of marijuana. Darwich
objected to this base offense level calculation and together

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Nos. 99-2147; 01-2044 United States v. Darwich 5
2Before the grand jury, Easterling testified that there were other
baggers wh om D arwich referred to as the “camel peop le.”
with the United States Attorney made an unsuccessful attempt
to stipulate to a specific sentence at the hearing on Darwich’s
objections to the PSR. The district court declined to accept
the stipulated sentence, and instead held an evidentiary
hearing on the issue of marijuana quantity. At this
evidentiary hearing, the court heard testimony from four
individuals, involved with or knowledgeable of the
conspiracy, addressing the question of drug quantity.
The first witness was Agent Kyle Dodge (“Dodge”). A
substantial portion of Dodge’s testimony consisted of his
summary recitation of the witnesses’ testimony before the
grand jury. Dodge testified that: (1) Ira Earehart testified that
on ten occasions he purchased marijuana in quantities ranging
from a nickel bag to one-quarter of a pound, and that on
twenty occasions he purchased pound quantities; (2) Leon
Lippett (“Lippett”) testified that eight out of ten Canfield
Market customers purchased marijuana; (3) Arnita Easterling
(“Easterling”) testified that sometime in or around July 1997
she began bagging nickel bags of marijuana three times a
week and that other “camel people”2 also bagged marijuana;
(4) Arthur Pace testified that in the fall of 1997 he bagged a
pound of marijuana into nickel bags each night; (5) Jillian
Drappeaux (“Drappeaux”) testified that she purchased
marijuana from the market approximately twenty times in
quantities of a pound or less; (6) Odestser Pace testified that
as a market employee she sold nickel bags of marijuana;
(7) Jason Alquiza (“Alquiza”) testified that he regularly
purchased marijuana at the market in quantities up to a pound;
(8) Smith, a market employee, testified that during his shift
nine out of ten customers came to purchase marijuana and
that ordinarily there were sixty-five to seventy market
customers during his shift; and (9) Kevin Dempsey testified
that he worked at the market and assisted Darwich with the
sale of marijuana. Dodge provided additional drug quantity
6 United States v. Darwich Nos. 99-2147; 01-2044
3It is unclear from Rush’s testimony precisely how much marijuana
he purchased “basically every day.” When asked how many nickel bags
he would purchase at one time, Rush replied: “So metimes three to five
bags, something like that.” J.A. at 441 (M ot. Hr’g, Rush Direct).
4On cross exam ination, defense counsel impeached R ush with a prior
affidavit from his own arrest in which he told the arresting officers that he
had been selling marijuana over the past two months o nly. J.A. at 452-53
(Mo t. Hr’g, Rush Cross Exam.).
5Specifically, Rush testified that “[S]ometimes when I dropped one
of them off they tell me that, you know, if I picked them up I seen them
the next day, that I packed up a pound or I did two pounds or a pound and
a half, like that, you know.” J.A. at 443 (Mot. Hr’g, Rush Direct). On re-
cross examination Rush stated that his nephews worked “[p]ossibly every
night beca use [he] would dro p them off just about every day, every
night.” J.A. at 456 (Mo t. Hr’g, Rush Re-cross Exam.).
evidence, informing the sentencing court that approximately
655.4 grams of marijuana were uncovered at the market
during the search.
The next witness to testify was Orlando Rush (“Rush”), a
federal prisoner incarcerated for possession with intent to
distribute crack cocaine. The government secured Rush’s
testimony against Darwich by agreeing to recommend that
Rush be released on bond and that his sentence be reduced to
time served. Rush testified that he bought nickel bags from
Darwich for personal use “basically every day”3 over the
course of approximately nine months prior to Rush’s arrest.
Joint Appendix (“J.A.”) at 440 (Mot. Hr’g, Rush Direct). He
also testified that when he needed extra money he would buy
anywhere from one-half of an ounce to one pound for further
resale during the same nine-month timeframe.4 Rush further
testified that Darwich sold approximately a pound of
marijuana each day. When questioned as to how he arrived
at this figure, Rush noted that his nephews (also known as the
“camel people”) worked as marijuana baggers at Darwich’s
home and that they would sometimes tell him that they
bagged from one to two pounds at night.5

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Nos. 99-2147; 01-2044 United States v. Darwich 7
6Smith worked the evening shift from 5 :00 p .m. until closing. Sm ith
testified that Darwich closed the store between 10:00 and 11:00 p.m.
However, Dodge was recalled at the end of the evidentiary hearing and
testified that the electronic surveillance indicated the store closed almost
every night at 9:00 p.m.
Darwich called the next witness, Easterling. Easterling
testified that she began bagging marijuana in September
1997. She also testified that she did not bag every day and
that there were periods of time when she did not bag
marijuana at all. Easterling indicated that she worked three or
four days each week. Although Easterling never weighed the
marijuana, she initially estimated that she bagged one-half of
a pound to one pound on the days when she worked. After
further probing, Easterling admitted that it actually may have
been less than one-quarter of a pound and that she really did
not know the precise figure. In addition, Easterling testified
that during her twelve-hour work days, she never saw anyone
besides Darwich and Dempsey, thereby eliminating any
possibility that she worked in conjunction with Rush’s
nephews. In response to a question from the judge, Easterling
responded that she filled 300 to 325 nickel bags on the days
when she worked.
The final witness was Smith, a Canfield Market employee.
On direct examination, Smith admitted that he was not at the
store every day and that there were times when he was absent
due to vacation, hospitalization, and his other jobs. He also
testified that between 1997 and the early part of 1998, the
store was closed for at least four weeks. Smith admitted
seeing Darwich sell nickel bags of marijuana, but testified
that he never saw Darwich distribute any larger amounts.
Although Smith admitted that his statement before the grand
jury that nine out of ten customers bought marijuana was a
guess, on cross examination he repeated that during his shift,6
nine out of ten customers bought nickel bags.
At the completion of the four witnesses’ testimony, the
court instructed the parties to submit briefs arguing their
8 United States v. Darwich Nos. 99-2147; 01-2044
positions on sentencing. Ultimately, the district court agreed
with the PSR calculations and the government when it
determined that Darwich was responsible for the distribution
of 236 kilograms of marijuana. The district court explained
its reasoning:
Several witnesses’ testimony established that Defendant
sold marijuana in large quantities. Earhardt’s [sic] grand
jury testimony established that he bought “nickel bags”
from Defendant ten times and a pound of marijuana on
twenty occasions. Drappeaux’s grand jury testimony
showed that she purchased up to one pound of marijuana
from Defendant more than twenty times. Alquiza
testified before the grand jury that he was a regular
purchaser of marijuana at the Canfield Market,
purchasing up to a pound at a time. Finally, Orlando
Rush testified at the evidentiary hearing that he would
purchase anywhere from one ounce to one pound of
marijuana from Defendant for resale, plus smaller
amounts for personal use.
In addition to Defendant’s large-quantity sales, the
testimony at the hearing demonstrated that Defendant
also sold a great deal of marijuana in smaller quantities.
Arthur Pace’s grand jury testimony established that
Defendant paid him $300 a week to bag marijuana.
Easterling testified at the hearing that she would bag
anywhere from a half pound to a pound of marijuana for
Defendant. Further she stated that when she did work,
she filled between 300 and 325 bags of marijuana.
This Court was also impressed by the testimony which
showed that the Canfield Market was basically a drug
operation and not a market selling legitimate consumer
goods. Lippett testified before the grand jury that eight
of ten customers at the Canfield Market were there to
purchase marijuana. Smith testified before the grand jury
that nine of ten customers at the Canfield Market
purchased marijuana. Smith reiterated this testimony at

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Nos. 99-2147; 01-2044 United States v. Darwich 9
the hearing, again stating that nine of ten customers
purchased marijuana. Smith also testified that the
Canfield Market did not have any milk, eggs, or bread in
the store.
Finally, Rush testified that his nephews worked for
Defendant for about two years. Rush’s nephews worked
every night, and Rush was aware of this fact because he
would drive his nephews to Defendant’s house. Rush
learned, through his nephews, that they would package
between one and two pounds of marijuana a night for
Defendant.
United States v. Darwich, No. 98-80508, at 10-11 (Sept. 30,
1999).
On October 4, 1999, Darwich was sentenced to eighty-eight
months in prison and four years of supervised release. That
same day, Darwich filed a notice of appeal to this court. The
central argument he raised in his appellate brief was that even
though the United States Attorney and Darwich had stipulated
to a base-offense-level calculation, the district court
predetermined the sentence Darwich would receive based on
the ninety-six month figure in the plea agreement without
considering the stipulation or the testimony at the evidentiary
hearing. Specifically, the district judge said on the record, “I
took a plea wherein the Court was under the impression that
ninety-six months was the cap and that’s what I think is
appropriate in this case.” J.A. at 498 (Mot. Hr’g). In
contrast, the government argued that the district court merely
declined to accept the parties’ proffered modified plea
agreement which stipulated the sentence and instead the court
affirmed its adherence to the ninety-six month cap provided
in the original Rule 11 plea agreement. In essence, the
government argued, the district court merely refused to
surrender its function of determining the appropriate sentence.
After the government and Darwich filed their briefs for the
first appeal but before oral argument, the Supreme Court
10 United States v. Darwich Nos. 99-2147; 01-2044
7Strayhorn concludes that on remand a district court can correct an
Apprendi error in the guilty plea context by determining the necessary
drug quantity under the proper beyond-a-reasonable-doubt standard or by
adhering to 21 U .S.C. § 84 1(b)(1)(D) and the Sentencing G uidelines to
resentence the defendant. United States v. Strayhorn, 250 F.3d 462, 471
(6th Cir. 2001).
8The original app eal in this case was numbered No. 99-2147. After
the district judge issued its second opinion on remand, the parties moved
to recall the mandate in the 99-2147 appeal, and a divided panel of this
court granted the motion to recall the mandate. On November 29, 2001,
we granted Darwich’s motion to co nsolidate the 99 -214 7 appeal with his
appeal from the district court’s second opinion on remand.
decided Apprendi. In light of the Court’s decision in
Apprendi and the government’s failure to allege any specific
quantity of marijuana in the indictment, both Darwich and the
government filed motions in this court waiving oral argument
and requesting that the case be remanded to the district court
for resentencing to the statutory maximum of sixty months
consistent with 21 U.S.C. § 841(b)(1)(D). The motion was
granted, and on remand, the district court adamantly declined
to resentence Darwich pursuant to § 841(b)(1)(D). The court
stated that it had expended resources on Darwich’s case and
had found that he was responsible for 236 kilograms of
marijuana. In its opinion issued on July 10, 2001, and relying
on United States v. Strayhorn, 250 F.3d 462 (6th Cir. 2001),
overruled on other grounds by United States v. Leachman,
309 F.3d 377 (6th Cir. 2002),7 the district court determined
that, although quantity was not alleged in the indictment, the
evidence on quantity was established beyond a reasonable
doubt. The district court relied on the same analysis
contained in its September 30, 1999 opinion and concluded
that Darwich was responsible beyond a reasonable doubt for
more than 100 but less than 400 kilograms of marijuana. On
July 16, 2001, Darwich appealed to this court from the district
court’s judgment resentencing him to eighty-eight months of
imprisonment based on its determination that the quantity
evidence was proved beyond a reasonable doubt.8

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Nos. 99-2147; 01-2044 United States v. Darwich 11
9If the district court could not find fifty kilograms beyond a
reaso nable doub t, then the district court would have b een un able to
sentence Darwich under § 841 (b)(1)(C) with a maximum sentence of
twenty years and instead would have had to sentence him under
§ 841(b)(1)(D ). Section 841(b)(1)(D) provides for a maximum sentence
of five years (or sixty months) when the amount of marijuana established
is less than fifty kilograms. Thus, without finding beyond a reasonable
doubt the necessary fifty kilograms to bring Darwich’s sentence within
the purview of § 841(b)(1)(C), Darwich’s eighty-eight month sentence
would violate the sixty-month statutory maxim um co ntained in
§ 841(b )(1)(D).
II. ANALYSIS
A. Apprendi Error
The district court on remand chose to reassess the evidence
against Darwich and determined that the same evidence that
established Darwich’s involvement with at least 100
kilograms of marijuana by a preponderance of the evidence
pre-Apprendi was sufficient to meet the beyond-a-reasonable-
doubt requirement post-Apprendi. In order for the district
court to have reached this conclusion, it must have found
Darwich responsible for at least fifty kilograms of marijuana
beyond a reasonable doubt,9 for otherwise his eighty-eight
month sentence would have exceeded the statutory maximum
alleged in the indictment. To arrive at this conclusion, the
district court relied on the same evidence that it used when it
found by a preponderance of the evidence that Darwich was
responsible for 236 kilograms of marijuana, which included
substantial hearsay testimony. In this consolidated appeal,
Darwich argues that the district court improperly concluded
that the drug quantity necessary to sentence him to eighty-
eight months in prison pursuant to 21 U.S.C. § 841(b)(1)(C),
U.S.S.G. § 2D1.1(a)(3), and U.S.S.G. § 2D1.1(c)(7) was
proved beyond a reasonable doubt. Thus, our analysis will
focus on the specific question of whether a district court’s use
of hearsay testimony to establish drug quantity beyond a
reasonable doubt violates Apprendi. This is a question of first
impression in the courts of appeals.
12 United States v. Darwich Nos. 99-2147; 01-2044
10Leachman partially overruled a number of cases in this circuit, see,
e.g., United States v. Harper, 246 F.3d 520 (6th Cir. 2001), and United
States v. Humphrey, 287 F.3d 422 (6th Cir. 2002), to the extent that the
Supreme Court in Harris v. United States, -- U.S. --, 122 S. Ct. 2406
(2002), held tha t Apprendi’s protections o nly extend to those situations
where a fact not prove d beyond a reaso nable do ubt enhances a
defendant’s sentence beyond the statutory maximum, and does not extend
to those cases where the fact only increases the defendant’s statutory
mandatory minimum. W e note tha t these cases rem ain binding precedent
except insofar as they are inconsistent with Ha rris’s rule regarding
statutory mandatory-minimum sentences. We cite these cases for the
proposition that the subsections of § 841(b) require that the drug quantity
be proved beyond a reasona ble doubt or else the defendant can receive
only the default statutory-maximum penalty for offenses which do not
state drug quantity. See generally United States v. Lopez, 309 F.3d 966,
The Supreme Court announced in Apprendi that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. After the landmark decision in
Apprendi, we determined that the federal drug statute’s
progression of increased maximum penalties based on the
amount of drugs in possession triggers Apprendi’s protection.
See Strayhorn, 250 F.3d at 467-68; see also United States v.
Zidell, 323 F.3d 412, 427-28 (6th Cir. 2003) (stating that
Apprendi requires a defendant to be sentenced using the
default statutory maximum “unless the jury determines
beyond a reasonable doubt that the offense involved a
quantity of drugs that triggers an enhanced statutory
maximum”); United States v. Copeland, 321 F.3d 582, 602
(6th Cir. 2003) (reiterating that we require proof beyond a
reasonable doubt when sentencing drug offenders under the
“higher tiers” of the scheme set forth in § 841(b)). Thus, for
the purpose of establishing the statutory-maximum sentence
for drug offenses, the drug amount must be proved beyond a
reasonable doubt. United States v. Garcia, 252 F.3d 838, 842
(6th Cir. 2001). In United States v. Flowal, 234 F.3d 932 (6th
Cir. 2000), overruled on other grounds by Leachman, 309
F.3d at 383,10 we held that each provision of § 841(b)

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Nos. 99-2147; 01-2044 United States v. Darwich 13
970 (6th Cir. 2002) (noting that because the jury did not find beyond a
reasonable doubt the necessary cocaine amounts for sentencing under
§§ 841 (b)(1 )(A) o r 841(b)(1)(B ), Appren di would require that the
defendant be sentence d und er the default statutory-maximum provision
for cocaine contained in § 841(b)(1)(C)).
provides for a different criminal offense with separate
elements which all must be proved beyond a reasonable doubt
when a defendant guilty of a marijuana conspiracy is
sentenced in excess of the default statutory maximum set out
in § 841(b)(1)(D). Id. at 938; see also United States v.
Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (continuing
to hold, after Leachman, that § 841(b)(1)(D) is the statutory
maximum sentence for conspiring to distribute an
undetermined amount of marijuana), cert. denied, -- U.S. --,
123 S. Ct. 1005 (2003).
An Apprendi violation not only can occur when a case
proceeds to trial but also can occur when a defendant pleads
guilty to a drug offense. See Strayhorn, 250 F.3d at 468. If
an Apprendi error occurs in a situation involving a guilty plea,
the district court can cure the error by finding drug quantity
beyond a reasonable doubt and sentencing the defendant
accordingly. Id. at 471. The justification for applying
Apprendi in the guilty plea context is that:
the defendant who pleads guilty to an unspecified
amount of drugs and is then sentenced under the
preponderance-of-the-evidence standard may just as
easily be subjected to an enhanced sentence in excess of
the default statutory maximum as the defendant who
takes his case to trial and is then sentenced by the district
court under the same preponderance-of-the-evidence
standard.
Id. at 468. Because Strayhorn requires the district court,
when the defendant is subject to an enhanced sentence, to
consider “the determination of drug quantity under § 841(b)
. . . [as] an element of the offense rather than a sentencing
14 United States v. Darwich Nos. 99-2147; 01-2044
factor,” we must review whether the district court’s use of
hearsay testimony to establish the necessary drug quantity
beyond a reasonable doubt is appropriate in light of
Apprendi’s holding. Id. (citing United States v. Ramirez, 242
F.3d 348, 351 (6th Cir. 2001)).
1. Hearsay Testimony
Although failure to raise an objection in the district court to
preserve an Apprendi issue limits appellate review to a plain
error inquiry, see United States v. Page, 232 F.3d 536, 543
(6th Cir. 2000) (citing Fed. R. Crim. P. 52(b)), a pre-Apprendi
defendant’s objection at the sentencing hearing to the quantity
of drugs and the judge’s determination by a preponderance of
the evidence is sufficient to entitle the defendant to de novo
review. See Copeland, 321 F.3d at 601; Humphrey, 287 F.3d
at 445. In Strayhorn, the defendant preserved his challenge
to his sentence by repeatedly objecting to the drug quantity
determination at the plea hearing, at the sentencing hearing,
and in written objections to the calculation of his base offense
level in his presentence report. See Strayhorn, 250 F.3d at
467. We determined that although Strayhorn did not “utter
the words ‘due process,’” he nonetheless preserved his
challenge to the drug quantity determination. Id. Much like
Strayhorn, Darwich adequately preserved his constitutional
challenge to the quantity determination under Apprendi.
Darwich consistently objected, both in writing and orally, to
the PSR’s computation of a specific drug amount. Darwich
objected to the drug quantity at the evidentiary hearing,
referencing the objections raised in his letter to the Probation
Department after it assessed the quantity. Darwich also
alerted the district court, at the plea hearing, that the amount
of marijuana was in dispute. Thus, we review Darwich’s

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Nos. 99-2147; 01-2044 United States v. Darwich 15
11W hile it is true that a defendant’s failure to object to his sentence
before the district court on the same ground raised on appeal limits our
review to plain error, United States v. Stubbs, 279 F.3d 402, 407 (6th Cir.
200 2), we conc lude that de novo review is appropriate because Darwich
objected to Rush’s hearsay testimony in a supplement to his objections to
the PSR. J.A. at 84 (Supp. to Sentencing M em. & O bjections). T hus,
even though the gravamen of Darwich’s appeal involves a determination
of whether Apprendi allows hearsay testimony to be co nsidered in proving
drug quantity beyond a reasonable doubt, de novo review remains the
proper standard of review because Darwich objected to his sentence
before the d istrict court on the same gro unds.
Apprendi challenge de novo because he adequately preserved
his quantity claim.11
We have repeatedly held that hearsay is permissible at a
sentencing hearing so long as it has some minimum indicia of
reliability. United States v. Davis, 170 F.3d 617, 622 (6th
Cir.), cert. denied, 528 U.S. 861 (1999); United States v.
Polselli, 747 F.2d 356, 358 (6th Cir. 1984), cert. denied, 469
U.S. 1196 (1985). Federal Rule of Evidence 1101(d)(3)
provides that the rules of evidence are “inapplicable” to
“[m]iscellaneous proceedings,” including sentencing
hearings. Fed. R. Evid. 1101(d)(3). Although we recognize
this court’s traditional acceptance of hearsay testimony at
sentencing, we take our direction from Strayhorn that drug
quantity is considered an element of the offense and not a
sentencing factor when such quantity alters the statutory-
maximum sentence the defendant could receive. Strayhorn,
250 F.3d at 468 (citing Ramirez, 242 F.3d at 351); see also
Zidell, 323 F.3d at 427-28 (noting that specific cocaine
quantities must be proved beyond a reasonable doubt in order
to sentence a defendant using the enhanced-penalty provisions
of 21U.S.C. §§ 841(b)(1)(A) and 841(b)(1)(B)). In keeping
with this principle, we hold that the normal rules of evidence
should apply when Apprendi requires the district court to find
the drug quantity beyond a reasonable doubt, and therefore it
is not permissible to use hearsay evidence to reach the fifty-
16 United States v. Darwich Nos. 99-2147; 01-2044
12Specifically, the testimony revealed:
MR. TURK EL: And you said [yo ur nep hews] indicated to you
the amount of marijuana that [Darwich] was
selling?
MR. RUSH: That they wo uld package up each night.
MR. TUR KEL: W hat did they tell you?
MR. RUSH: W ell, sometimes when I dropped one of them
off they tell me that, you know, if I picked
them up I seen them the next day, that I
packed up a pound or I did two pounds or a
pound and a half, like that, you know.
J.A. at 443 (Tr. of Mo t. Hr’g, Rush Direct Exam.).
kilogram quantity needed to sentence Darwich under § 841(b)(1)(C).
In the present case, the district court relied extensively on
Rush’s testimony12 that his nephews sometimes told him how
many pounds of marijuana they bagged a night when he
picked them up or happened upon them the next day. Rush’s
testimony regarding his nephews’ statements constitutes an
out-of-court statement “offered in evidence to prove the truth
of the matter asserted,” and it therefore meets the definition
of hearsay provided in Federal Rule of Evidence 801(c). Fed.
R. Evid. 801(c). However, Rule 801(d)(2)(E) provides that a
statement is not hearsay if: “[t]he statement is offered against
a party and is . . . a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy.” Fed.
R. Evid. 801(d)(2)(E). “In order to admit the statement of a
co-conspirator under . . . [Rule] 801(d)(2)(E), it must first be
determined that the conspiracy existed, that the defendant was
a member of the conspiracy, and that the co-conspirator’s
statements were made in furtherance of the conspiracy.”
United States v. Gessa, 971 F.2d 1257, 1261 (6th Cir. 1992)
(en banc) (internal quotation marks omitted); see also United
States v. Hamilton, 689 F.2d 1262, 1268 (6th Cir. 1982), cert.
denied, 459 U.S. 1117 (1983) (noting that these elements
must be proved by a preponderance of the evidence). A

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Nos. 99-2147; 01-2044 United States v. Darwich 17
statement is considered to be in furtherance of the conspiracy
“if it is intended to promote the objectives of the conspiracy.”
United States v. Monus, 128 F.3d 376, 392 (6th Cir. 1997)
(quotation omitted); Hamilton, 689 F.2d at 1270; see also
United States v. Doerr, 886 F.2d 944, 951 (7th Cir. 1989)
(“We recently emphasized that the in furtherance requirement
of Rule 801(d)(2)(E) is a limitation on the admissibility of
coconspirators’ statements that is meant to be taken
seriously.” (internal quotation marks omitted)).
Applying the test of Gessa, we do not question that a
conspiracy existed or that Darwich was an active participant
in the conspiracy. However, we conclude that Rush’s
nephews’ statements were not made in furtherance of the
conspiracy. As an initial matter, it is quite clear that mere
“idle chatter or casual conversation about past events” is not
considered a statement “in furtherance of the conspiracy.”
United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000)
(quotation omitted); see also United States v. Salgado, 250
F.3d 438, 449-50 (6th Cir.), cert. denied, 534 U.S. 916 and
534 U.S. 936 (2001); United States v. Foster, 711 F.2d 871,
880 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984)
(noting that “mere narrative declarations” made without the
intent to induce assistance for the conspiracy do not fall
within the “strict requirements” of Rule 801). The nephews’
statements as to how much marijuana they bagged were
neither attempts to “keep[] co-conspirators advised,” Tocco,
200 F.3d at 419, nor were they “[s]tatements that identify
participants and their roles in the conspiracy.” Monus, 128
F.3d at 393 (internal quotation marks omitted). It is apparent
from the transcripts of Rush’s testimony that these statements
were casual conversation about past events. Rush’s testimony
itself indicates that his nephews made these statements only
occasionally; if he happened to pick his nephews up or see
them in passing, they “sometimes” mentioned to him how
much marijuana they had bagged the previous night. J.A. at
443 (Tr. of Mot. Hr’g, Rush Direct Exam.). In sum, these
statements are simply casual conversation — indicative of
how hard the nephews worked on a particular evening — and,
18 United States v. Darwich Nos. 99-2147; 01-2044
13Rush also testified regarding his own purchases from Darwich of
marijuana for personal use and for resale. The district court could have
relied on this testim ony in its attempt to determine whether the evidence
establishes fifty kilograms beyond a reasonable d oubt.
14W e note tha t both E asterling and S mith testified at the evidentiary
hearing on Darwich’s objections to the P SR’s drug quantity calculations
and, thus, were subject then to cross examination. Conservatively
calculating the amount o f drugs m entioned in the ir com bined testimony,
other than the illegal nature of the work, are no different than
a statement by a farmer that he harvested forty acres of wheat
by sundown. Because Rush’s testimony with respect to his
nephews’ out-of-court statements is hearsay13 that does not
fall within an exception to the general rule, it was error for the
district court to rely on this evidence.
Without Rush’s testimony regarding his nephews’
statements, the only other way for the district court to reach
the necessary fifty kilograms beyond a reasonable doubt is
through Dodge’s testimony restating the testimony of grand
jury witnesses. If permissible evidence, Dodge’s testimony
would provide substantial evidence on the drug quantity
question. However, Agent Dodge’s testimony also comes
within the definition of hearsay provided in Federal Rule of
Evidence 801(c) because it constitutes an out-of-court
statement “offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). One potentially applicable
exception, Federal Rule of Evidence 804(b)(1), provides that
former testimony, “given as a witness at another hearing of
the same or a different proceeding,” will not be excluded by
the hearsay rule if the declarant is unavailable and “the party
against whom the testimony is now offered . . . had an
opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.” Fed. R. Evid.
804(b)(1). Here, regardless of whether the grand jury
witnesses properly could be considered “unavailable,”
Darwich had no opportunity to cross examine these
witnesses.14 Therefore, the grand jury testimony does not fall

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Nos. 99-2147; 01-2044 United States v. Darwich 19
however, we cannot reach the necessary drug quantity beyond a
reaso nable doubt.
15Rule 80 7 states:
A statement not specifically covered by Rule 803 o r 804 but
having equivalent circum stantial guarantees of trustworthiness,
is not excluded by the hearsay rule, if the court determines that
(A) the statem ent is offered as evidence of a material fact; (B)
the statement is more probative on the point for which it is
offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes
of these rules and the interests of justice will best be served by
admission of the statement into evidence.
Fed. R. Evid. 807.
16I dissented in Laster based on the majority’s expansive reading of
the residual hearsay exception that directly conflicted with both the plain
language of the Rule and the legislative history. See Laster, 258 F.3d at
533 (Moore, J., dissenting). Although I continue to believe that my view
is the pro per interpretation of Rule 807, I recognize that Laster is the
current law of the circuit.
17In Barlow, we defined unavailability as including a situation when
“a witness persists in refusing to testify concerning the subject matter of
his statement desp ite an order of the co urt to do so .” Barlow, 693 F.2d at
within the former-testimony exception to the hearsay rule.
Cf. United States v. Foster, 128 F.3d 949, 954-56 (6th Cir.
1997) (holding that when the defendant’s witness is
unavailable and the government had the same motive and
opportunity to develop the witness’s testimony at the grand
jury proceeding, the requirements of 804(b)(1) are satisfied).
On occasion, when a statement is inadmissible hearsay
under Federal Rules of Evidence 803 and 804, it still can be
admitted under Federal Rule of Evidence 807, the residual
hearsay exception.15 United States v. Laster, 258 F.3d 525,
530 (6th Cir. 2001), cert. denied, 534 U.S. 1151 (2002);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 unavailable17 witness “under
20 United States v. Darwich Nos. 99-2147; 01-2044
961 (internal quotation omitted) (analyzing the precursor to Rule 807,
Rule 804(b)(5)). W hen analyzing the admissibility under the
Confrontation Clause of prior testimony, the Supreme Court has stated
that the declarant must be unavailable and the testimony must have
sufficient indicia o f reliability. See White v. Illinois, 502 U.S. 346, 354
(1992); Oh io v. Robe rts, 448 U.S. 56, 65-66 (1980).
18The Supreme Co urt considers cross exam ination to be the “greatest
legal engine ever invented for the discovery of truth.” California v.
Green, 399 U.S. 149, 158 (1970) (internal quotation and citation omitted).
certain circumstances” is admissible pursuant to Rule 807).
This rule requires that before Rule 807 can apply, the
evidence must have “equivalent circumstantial guarantees of
trustworthiness” as compared to evidence admitted under the
other hearsay exceptions contained in Rules 803 and 804.
Fed. R. Evid. 807; see Barlow, 693 F.2d at 962. In addition,
as stated by the rule, the evidence admitted must go to a
“material fact,” must be more probative than any other
evidence that reasonably could have been procured, and its
admission must support the general purposes of the Rules of
Evidence and “the interests of justice.” Fed. R. Evid. 807; see
United States v. Canan, 48 F.3d 954, 959 (6th Cir. 1995).
While balancing all of these concerns, the district court also
must consider the “independent restrictions” on the admission
of certain evidence contained in the Confrontation Clause of
the Sixth Amendment which protects a criminal defendant’s
right to confront the witnesses against him and to challenge
their testimony through cross examination. Canan, 48 F.3d
at 959-960.
Without proper cross examination,18 the statements of
Rush’s nephews cannot be deemed to have “equivalent
circumstantial guarantees of trustworthiness.” These
statements were off-the-cuff estimations subject to
miscalculations and/or inaccurate representations, creating the
precise type of problem that the hearsay rule is designed to
prevent. An opportunity to cross examine Rush’s nephews in
this situation is the only way that Darwich would be able to

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Nos. 99-2147; 01-2044 United States v. Darwich 21
explore any concerns with the integrity and accuracy of these
statements. Moreover, we also must consider the source
when evaluating the reliability of this hearsay testimony. The
testimony was offered by Rush when he was in a likely
position to supply self-serving testimony. While this
testimony does not exculpate Rush at the expense of
implicating Darwich, it is the exact testimony the government
sought when it presented Rush with a deal. Rush’s testimony
suffers from the same infirmities as that of a coconspirator
because the government promised Rush a chance at a reduced
sentence in exchange for his testimony against Darwich. See
United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.
1991); see generally Bruton v. United States, 391 U.S. 123,
141 (1968) (White, J. dissenting) (stating that the confession
of a codefendant is less credible than ordinary hearsay
evidence “[d]ue to [the codefendant’s] strong motivation to
implicate the defendant and to exonerate himself”); Miller v.
Field, 35 F.3d 1088, 1092-93 (6th Cir. 1994) (noting that with
respect to testimony from the alleged assailants who were also
facing criminal charges, “the possibility certainly existed that
they would tailor their comments to the investigator so as to
promote their own best interests”). As a final matter,
although the nephews’ statements regarding drug quantity go
to a material fact, the government has not shown that Rush’s
hearsay testimony is “more probative” than any other
evidence it could have procured using reasonable efforts.
To ensure “equivalent circumstantial guarantees of
trustworthiness” in the context of admitting grand jury
testimony under the residual hearsay exception, Barlow listed
the important factors, including: “the declarant’s relationship
with both the defendant and the government, the declarant’s
motivation to testify before the grand jury, the extent to which
the testimony reflects the declarant’s personal knowledge,
whether the declarant has ever recanted the testimony, and the
existence of corroborating evidence available for cross-
examination.” Barlow, 693 F.2d at 962 (emphasis added).
With respect to Dodge’s testimony repeating the statements
of the grand jury witnesses, many of whom were arguably
22 United States v. Darwich Nos. 99-2147; 01-2044
19All grand jury witnesses, other than Easterling and Smith, fall
within this category.
20Even if the hearsay testimony could have been considered reliab le
and trustworthy, it still would not be ad missible under Rule 807 . Rule
807 requires that the “statem ent is more probative on the point for which
it is offered than any other evidence which the proponent can procure
through reasonable efforts.” In this case the government has not shown
how it exerted reasonable efforts to secure the testimony of the grand jury
witnesses at the evidentiary hearing as requested by Darwich.
coconspirators, this court stated in Gomez-Lemos that there is
“a strong presumption against the trustworthiness of co-
conspirators’ statements that are made after a conspiracy has
terminated in arrest.” Gomez-Lemos, 939 F.2d at 329. We
further stated that: “outside of the co-conspirator exception
to the hearsay rule (where a statement is made during the
course of the conspiracy and not after it has ended), the
Supreme Court has consistently concluded that the uncross-
examined testimony of an alleged co-conspirator is not
sufficiently reliable to meet the requirement of the
Confrontation Clause.” Id. at 332. Thus, we conclude that
this grand jury testimony, at least with respect to those grand
jury witnesses who did not also testify at the evidentiary
hearing,19 lacks the necessary reliability to fall within the
residual hearsay exception.20
2. Insufficient Remaining Evidence
The only remaining evidence that the district court can use
to arrive at the fifty-kilogram mark beyond a reasonable doubt
comes from Easterling’s and Smith’s testimony at the
evidentiary hearing, Dodge’s testimony regarding marijuana
seized during the search, and Rush’s testimony regarding his
own purchases. Dodge testified that during the search of the
market approximately 655.4 grams (.655 kilograms) of
marijuana was confiscated. Rush testified that he bought
three to five nickel bags of marijuana “basically” every day
from Darwich over a nine-month period. During the same

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Nos. 99-2147; 01-2044 United States v. Darwich 23
213 grams x 7 days x 39 weeks (nine months) = 819 grams (.819
kilograms).
nine months, he also purchased anywhere from a half ounce
to a pound every couple of weeks for further resale. Although
Easterling admitted that there were times when she did not
bag marijuana for Darwich, she estimated that, starting in
September 1997, she worked three to four days a week
bagging nickel bags for Darwich. Easterling attempted to
calculate the amount of marijuana she bagged in terms of
pounds per day but ultimately testified that she filled between
300 and 325 nickel bags each day she worked. Smith testified
that nine out of ten market customers purchased nickel bags
during his shift at the Canfield Market.
We previously have instructed that “when choosing
between a number of plausible estimates of drug quantity, . . .
a court must err on the side of caution.” United States v.
Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S.
906, and 498 U.S. 989, and 498 U.S. 990 (1990); Arredondo
v. United States, 178 F.3d 778, 787 (6th Cir. 1999). Using
this principle as a guide, we must assign equivalent values of
marijuana to the admissible testimony. Dodge’s testimony
can be taken at face value because he attested to an amount of
marijuana that was actually confiscated by the FBI agents.
All the other witnesses provided figures subject to
interpretation, and therefore the results must be cautiously
analyzed. The district court comfortably could have
determined that Rush purchased three nickel bags containing
one gram of marijuana each, seven times a week, for a nine-
month (or thirty-nine week) period, which yields 819 grams
of marijuana (.819 kilograms).21 Applying a formula for the
larger quantities purchased by Rush, the district court could
have estimated conservatively that he bought one half of a
pound, every two weeks, during the nine-month period
(approximately twenty weeks). This equation would yield 10
24 United States v. Darwich Nos. 99-2147; 01-2044
22One kilogram equals 2.204 6 pounds.
23300 grams x 3 d ays x 35 weeks = 31,500 grams (31.5 kilograms).
24W hile it is true that during the six months that Canfield Market was
under surveillance the marke t generally was open seven days a week,
Smith’s testimony revealed that the store was closed for extended periods
of time when D arwich was on vaca tion, when the store was robbed, and
twice when Darwich was in the hospital, once recovering from a gun-shot
wound and once after a suicide attempt. All tolled, Smith accounted for
at least four weeks from 1997 to 1998 when the market was closed.
pounds, which converts to 4.535970 kilograms.22 With
respect to Easterling’s testimony, a conservative calculation
could find that she bagged 300 nickel bags at one gram of
marijuana each, three times a week, from September 1997
through April 1998 (the end-date of the conspiracy as
specified in the indictment). This equation would yield 31.5
kilograms of bagged marijuana.23 Finally, analyzing Smith’s
testimony conservatively and in keeping with the Probation
Department’s formula, we conclude that if fifty-eight
customers bought nickel bags containing one gram of
marijuana five days per week24 for the two years of the
conspiracy (104 weeks), the amount of marijuana sold would
total 30.16 kilograms.
Although if we added all of these figures together we would
surpass the fifty kilograms needed, using the rule of Walton,
Darwich’s argument against double-counting has particular
relevance. Darwich argues on appeal that in order to reach
the fifty kilograms beyond a reasonable doubt, the sentencing
court must refrain from considering evidence of bagged
marijuana in conjunction with evidence of purchased
marijuana. Darwich contends that if the court adds all of
these figures to reach a drug quantity, the final drug count
would be inflated because the marijuana bagged for sale is the
same marijuana that was purchased at the market. We agree
with this position and determine that in order to reach the
necessary fifty kilograms beyond a reasonable doubt the

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Nos. 99-2147; 01-2044 United States v. Darwich 25
25Even ignoring our duty to “err o n the side of caution,” we still fall
short of the necessary fifty kilograms when we use the number of
customers and amount of marijuana consistent with the higher ranges
provided by Smith’s testimony, i.e., assuming sixty-three customers
amount of marijuana sold must be considered separately from
the amount bagged for sale. The proffered evidence shows
that the total amount in bagged marijuana was just over thirty
kilograms, nearly twenty kilograms shy of the fifty-kilogram
mark. The evidence of sales established that Darwich sold
just over thirty-six kilograms of marijuana from the Canfield
Market. Thus, neither of these figures is sufficient to
establish fifty kilograms beyond a reasonable doubt.
The dissent makes three critical errors to reach its
conclusion that drug quantity was established beyond a
reasonable doubt. First, it relies solely on Rush’s hearsay
testimony to establish the drug quantity beyond a reasonable
doubt by finding that it falls within the “statement by a co-
conspirator” exemption from the hearsay rule. Second, it fails
to address the inadmissibility of Dodge’s hearsay testimony
regarding the grand jury testimony. And third, it neglects the
long-standing principle that a sentencing court is instructed to
“err[] on the side of caution when calculating drug
quantities.” Arredondo, 178 F.3d at 787. The dissent also
hypothesizes that it is feasible to reach the necessary fifty
kilograms through Smith’s testimony alone by deriving a
formula from his testimony regarding the average number of
drug buys during his shift at the Canfield market. In a
footnote, the dissent applies this formula of purchases per
hour to the hours the Canfield market conducted business,
assuming that sales took place at a constant rate throughout
the day. Although the dissent mentions this evidence as an
aside, it is, nonetheless, surprising that the dissent would even
tentatively indicate that such an extrapolation would provide
evidence of drug quantity beyond a reasonable doubt. As
stated above, Smith’s testimony only yields 30.16 kilograms
of marijuana.25 The dissent’s approach makes broad
26 United States v. Darwich Nos. 99-2147; 01-2044
purchased nickel bags conta ining 1.5 grams of marijuana five days per
week for the two years of the conspiracy establishes only 49.14 kilograms
of marijuana.
26Even though we already have d etermined that Da rwich’s sentence
is in conflict with Apprendi, we still need to address Darwich’s
sufficiency of the evidence challenges to his base offense level because
on remand Darwich’s total offense level can impact his ultimate sentence
provided that the total offense level permits the district court to sentence
him to less than the sixty-month maximum. The sentencing guidelines
require that Darwich must be involved with at least 100 kilogram s by a
preponderance of the evidence before Darwich can receive the base
offense level 26 that he was assigned at sentencing.
unfounded assumptions to conclude that Smith’s testimony
alone would suffice.
In conclusion, the district court’s acceptance of hearsay
testimony to reach the necessary fifty kilograms beyond a
reasonable doubt was erroneous. Without establishing that
Darwich was responsible for at least fifty kilograms of
marijuana beyond a reasonable doubt, the court cannot
sentence Darwich under § 841(b)(1)(C), and instead must
sentence him under § 841(b)(1)(D) which establishes a sixty-
month maximum for quantities of marijuana under fifty
kilograms. 21 U.S.C. § 841(b)(1)(D). Therefore, Darwich’s
sentence of eighty-eight months is improper because it
subjects him to a sentence in excess of the statutory maximum
in violation of his constitutional right to have each element of
the offense proved beyond a reasonable doubt.
B. Sufficiency of the Evidence at Sentencing
Darwich, in a series of fact-based objections, challenges the
district court’s finding by a preponderance of the evidence
that he is responsible for 236 kilograms of marijuana over the
length of the conspiracy.26 Specifically, Darwich argues that
the district court erred by double-counting the amount of
marijuana to reach the necessary drug figures, by failing to
account for interruptions in drug activity, and by relying on

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Nos. 99-2147; 01-2044 United States v. Darwich 27
Rush’s purportedly incredible testimony. Although we
addressed some of Darwich’s arguments in our Apprendi
discussion, we now will address them in the context of
whether the district court could properly assign Darwich a
base offense level of 26, which requires finding by a
preponderance of the evidence involvement with more than
100 and less than 400 kilograms of marijuana.
We review for clear error the district court’s factual
findings on drug quantity attributable to a defendant for
sentencing purposes. United States v. Mahaffey, 53 F.3d 128,
131 (6th Cir. 1995); United States v. Walton, 908 F.2d 1289,
1300-01 (6th Cir.), cert. denied, 498 U.S. 989 (1990). “A
finding of fact will only be clearly erroneous when, although
there may be some evidence to support the finding, ‘the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.’”
United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997)
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 573
(1985)), cert. denied, 523 U.S. 1086, and 523 U.S. 1101, and
524 U.S. 920 (1998). If the district court interprets the
evidence in a manner consistent with the record, we are
required to uphold its decision even if we would have reached
the opposite conclusion. Anderson, 470 U.S. at 573-74
(“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.”).
1. Double-Counting at Sentencing
Darwich raises a double-counting argument concerning the
district court’s calculations to establish drug quantity by a
preponderance of the evidence, in which Darwich argues that
the district court improperly combined both bagged and sold
marijuana to reach an inflated quantity. Separating the
evidence of bagged marijuana from the evidence of marijuana
sales, we believe that it is clear that using evidence of the
bagging operation alone results in an easy finding by a
28 United States v. Darwich Nos. 99-2147; 01-2044
271 lb. x 7 days x 13 weeks (3 months) = 91 lbs. (41.2 kilograms).
preponderance of the evidence of at least 100 kilograms of
marijuana.
As discussed in the preceding section, a conservative
estimate from Easterling’s testimony results in a finding that
she bagged 31.5 kilograms of marijuana. In addition, the less
stringent evidentiary standards applicable to sentencing allow
the district court to consider Dodge’s hearsay testimony
reiterating the testimony before the grand jury. Dodge
testified that Arthur Pace told the grand jury that he bagged
one pound of marijuana each night during the fall of 1997.
This yields yet another 41.2 kilograms.27 Rush’s testimony
repeating his nephews’ statements is also fair game when
establishing drug quantity for sentencing by a preponderance
of the evidence. Rush testified that his nephews bagged a
pound each night for the length of the two-year conspiracy.
Using a mere fraction of this testimony provides adequate
evidence of drug quantity in excess of 100 kilograms. Thus,
the district court did not clearly err in determining that
Darwich’s conspiracy involved at least 100 kilograms of
marijuana.
2. Interruptions in Activity
Darwich argues that the district court’s drug-quantity
findings did not adequately account for periods of time when
the Canfield Market was closed. The district court had
determined that the probation department’s aggregating
formula was sufficient to account for the minor interruptions
cited by Darwich.
The district court did not clearly err when it found Darwich
responsible for a conspiracy involving, by a preponderance of
the evidence, at least 100 kilograms of marijuana. First, the
surveillance of the Canfield Market indicated that the store
was open seven days a week, whereas the probation

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Nos. 99-2147; 01-2044 United States v. Darwich 29
department’s formula calculating drug quantity used a five-
day-per-week assumption. It is not clearly erroneous for the
district court to determine that the formula’s use of fewer
days adequately compensates for any periods in which the
market was closed. Second, as stated above, the evidence of
marijuana sales is not necessary for a finding that Darwich’s
conspiracy involved by a preponderance of the evidence more
than 100 kilograms of marijuana because the evidence of
bagged marijuana alone is enough to reach that mark
comfortably. Thus, Darwich’s argument that the Canfield
Market was closed on a number of occasions has no bearing
on whether the bagging operation continued uninterrupted.
3. Unreliable Testimony
Darwich contends that the district court should not have
relied on Rush’s testimony because it was procured by the
government’s promise to Rush of a reduced sentence. We
previously have stated that “[w]e are generally reluctant to set
aside credibility determinations made by the trier of fact, who
has had the opportunity to view the witness on the stand and
assess his demeanor.” Peveler v. United States, 269 F.3d 693,
702 (6th Cir. 2001). In keeping with this principle, we find
no reason to disrupt the district court’s determination that
Rush’s testimony was credible, after the district court had a
first-hand opportunity to observe him.
C. Sentence Enhancements
1. Firearm Enhancement
“A district court's finding that a defendant possessed a
firearm during a drug crime is a factual finding subject to the
clearly erroneous standard of review.” Bartholomew, 310
F.3d at 924 (quotation omitted). “A finding of fact will only
be clearly erroneous when, although there may be some
evidence to support the finding, ‘the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.’” Latouf, 132 F.3d at 331
30 United States v. Darwich Nos. 99-2147; 01-2044
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 573
(1985)). We will uphold the district court’s decision as long
as it has interpreted the evidence in a manner consistent with
the record. Anderson, 470 U.S. at 573-74. “Where there are
two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Id. at 574.
U.S.S.G. § 2D1.1(b)(1) orders sentencing courts to increase
the defendant’s sentence by two levels “[i]f a dangerous
weapon (including a firearm) was possessed.” U.S.S.G.
§ 2D1.1(b)(1) (2001). The sentencing court is instructed to
apply the two-level enhancement when a weapon is present,
“unless it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3.
This requirement for a strict sentence enhancement “reflects
the increased danger of violence when drug traffickers
possess weapons.” Id. The government bears the burden of
showing by a preponderance of the evidence that the
defendant either “actually or constructively possessed the
weapon.” United States v. Hough, 276 F.3d 884, 894 (6th
Cir.), cert. denied, 535 U.S. 1089, and -- U.S. --, 123 S. Ct.
199 (2002). “Constructive possession of an item is the
ownership, or dominion or control over the item itself, or
dominion over the premises where the item is located.”
United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert.
denied, 519 U.S. 858 (1996) (citation and internal quotations
omitted). Once the government meets its burden of showing
that the defendant possessed a weapon, a presumption arises
that “the weapon was connected to the offense.” Hough, 276
F.3d at 894. The burden then shifts to the defendant to “show
that it was ‘clearly improbable’ that the weapon was
connected with the crime.” Id. The district court applies the
two-level enhancement if the defendant fails to meet this
burden. United States v. Miggins, 302 F.3d 384, 391 (6th
Cir.), cert. denied, -- U.S. --, 123 S. Ct. 712 (2002), and --
U.S. --, 123 S. Ct. 909, and -- U.S. --, 123 S. Ct. 1772 (2003).
The PSR recommended an enhancement based upon the
seven firearms found pursuant to lawful searches of

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Nos. 99-2147; 01-2044 United States v. Darwich 31
Darwich’s home. The district court accepted these
recommendations. On appeal, Darwich contends that the
weapons found in his home were not sufficiently linked to the
drug activities that took place at the Canfield Market. In
support of his position, Darwich cites United States v. Peters,
15 F.3d 540 (6th Cir. 1994), a case involving cocaine seized
in plain view from the top of a dresser. However, in Peters,
the sentencing court did not apply the firearm enhancement
even though a pistol with a fully loaded magazine was found
in a zippered pouch in the dresser drawer, because it
determined that the pistol was not connected to the drug
offense. Id. at 546. We upheld the district court’s decision,
noting our deferential posture when reviewing for clear error.
Id.
While Darwich might be correct in his position that the
government failed to demonstrate how these weapons were
connected to the Canfield Market activities, the weapons
surely could have been connected to the bagging operation
that took place in his home. Because the weapons were found
in Darwich’s home where the drugs were bagged, a
presumption arose that “the weapon[s were] connected to the
offense.” Hough, 276 F.3d at 894. Once this presumption
takes effect, the burden was on Darwich to “show that it was
‘clearly improbable’ that the weapon[s were] connected with
the crime.” Id. Darwich argues that the connection of the
weapons to the drugs was tenuous, but fails to show that the
presumed connection was “clearly improbable.” Thus, the
district court did not clearly err in applying the two-level
firearm enhancement.
2. Leadership Enhancement
U.S.S.G. § 3B1.1(a) provides that a defendant’s sentence
can be enhanced by four levels “[i]f the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a). Subsection (c) provides for a two-level
enhancement if the criminal activity involved less than five
32 United States v. Darwich Nos. 99-2147; 01-2044
participants or if it could not be considered extensive.
U.S.S.G. § 3B1.1(c). We review factual findings made by the
district court when determining the appropriate sentence for
clear error. United States v. Mahaffey, 53 F.3d 128, 131 (6th
Cir. 1995).
In the PSR, the probation department recommended that the
district court give Darwich a four-point enhancement for his
leadership role in the offense. Darwich objected to this
enhancement. At sentencing, the district judge agreed with
the probation department, overruled Darwich’s objection, and
applied the four-level enhancement. Specifically, the district
court stated in response to Darwich’s objections that
“paragraph twenty-six speaks of a four point enhancement for
adjustment in the role of the offense. And I’m denying the
objections to that enhancement for the reasons stated by the
United States Probation Department.” J.A. at 507
(Sentencing Tr.).
On appeal, Darwich argues that the district court did not
make specific factual findings on the question of leadership
and instead relied on the PSR in deciding to apply the
enhancement. At the time the district court held Darwich’s
sentencing hearing, Rule 32(c)(1) of the Federal Rules of
Criminal Procedure provided that “[f]or each matter
controverted, the court must make either a finding on the
allegation or a determination that no finding is necessary
because the controverted matter will not be taken into account
in, or will not affect, sentencing.” Fed. R. Crim. P. 32(c)(1)
(1999). As discerned by our previous cases, the purpose of
this rule was “to ensure that sentencing is based on reliable
facts found by the court itself after deliberation,” and thus, the
district court cannot “summarily adopt the factual findings in
the presentence report or simply declare that the facts are
supported by a preponderance of the evidence.” United States
v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002). This court
required “literal compliance” with this rule in order to
enhance the accuracy of the sentence and the clarity of the

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Nos. 99-2147; 01-2044 United States v. Darwich 33
record. United States v. Parrott, 148 F.3d 629, 633 (6th Cir.
1998).
On December 1, 2002, amendments to the Federal Rules of
Criminal Procedure replaced Rule 32(c)(1) with Rule 32(i)(3).
Rule 32(i)(3)(B) states that “for any disputed portion of the
presentence report or other controverted matter” during
sentencing, the court must “rule on the dispute or determine
that a ruling is unnecessary either because the matter will not
affect sentencing, or because the court will not consider the
matter in sentencing.” Fed. R. Crim. P. 32(i)(3) (2003). This
new rule attempts to eliminate confusion over whether courts
were required to make rulings on every objection to the PSR
or only those that have the potential to affect the sentence.
Fed. R. Crim. P. 32(i)(3) advisory committee’s note (2002).
The new rule makes clear that controverted matters at
sentencing only require a ruling if the disputed matter will
affect the eventual sentence. Prior to these revisions, we
already had interpreted the rule in a manner consistent with
Rule 32(i)(3)’s recent clarification. See, e.g., United States v.
Hurst, 228 F.3d 751, 760 (6th Cir. 2000) (requiring a
defendant to “expressly call [controverted matters] to the
court’s attention” before Rule 32(c)(1) would apply); Parrott,
148 F.3d at 634 (holding that failure to follow Rule 32(c)(1)
is harmless error when resolution of the controverted matter
would not affect the defendant’s sentence).
Because the matter of leadership role was disputed by
Darwich in his objections to the PSR, the district court had an
obligation under Rule 32(i)(3) to issue a ruling on the
disputed matter unless the matter would not affect sentencing
or would not be considered in sentencing. Here, the disputed
matter — whether Darwich was an organizer or leader of this
marijuana conspiracy — absolutely would affect sentencing
because without the four-point enhancement provided in the
guidelines, Darwich would have a total offense level of 25
which allows for a sentence of as little as fifty-seven months.
The district court never issued a specific ruling on whether
the criminal activity involved five or more individuals or
34 United States v. Darwich Nos. 99-2147; 01-2044
28The district co urt attributed 236 kilogram s to Darwich noting that
its “findings in this matter are based on the testimony of several witnesses,
all of which demonstrate that the Defendant was a wholesaler and retailer
of marijuana, selling a great deal of marijuana over a long period.” J.A.
at 561 (7/10 /01 D ist. Ct. Op . & O r.). The cou rt also commented that it
was “impressed by the testimony which showed that Canfield Market was
basically a drug operation.” Id. at 560. The district court further
commented o n the length of the conspiracy and the number of small and
large quantity sales. Id. W e determine that these statements, without
more, are insufficient to constitute a ruling satisfying Rule 32(i)(3) on
whether the criminal activity was extensive or involved more than five
people as is required for an enhancement under § 3B1.1(a).
whether it could be considered extensive. In fact, even
though Darwich objected to the PSR’s role-in-the-offense
enhancement, the district court neglected to address this
objection in its opinion. Instead, the district court’s opinion
addressed solely the issue of whether 236 kilograms of
marijuana could be attributed to Darwich. The district court
embedded any potential reasoned explanation for its
resolution of the disputed matter within its explanation of
how the drug quantity was established beyond a reasonable
doubt.28 At the subsequent sentencing hearing, the district
court likewise failed to issue a ruling on this disputed matter.
In ordering a four-level enhancement, the district court
exclusively relied on the reasoning of the probation
department. However, we recently reiterated that exclusive
reliance on the PSR when a matter is in dispute cannot be
considered a ruling. See generally United States v. Treadway,
328 F.3d 878, 886 (6th Cir. 2003) (noting that Rule 32(i)(3)’s
predecessor, Rule 32(c)(1), in conjunction with U.S.S.G.
§ 6A1.3, prohibits reliance on the PSR when factual matters
are in dispute). Even though Treadway applied Rule 32(c)(1),
we hold that a Rule 32(i)(3) ruling, similarly, requires more
than blind reliance on the PSR.
Because the PSR cannot be substituted for a ruling on a
disputed matter and because the district court did not issue a
ruling on the disputed matter of whether Darwich’s illegal
drug activity was extensive or involved more than five

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Nos. 99-2147; 01-2044 United States v. Darwich 35
individuals, we conclude that the district court failed to
comply with Rule 32(i)(3). Accordingly, on remand the
district court should issue a ruling on the disputed matter of
whether Darwich deserves an enhancement for role in the
offense in accordance with Rule 32(i)(3).
III. CONCLUSION
Because the district court could not properly conclude that
the evidence established fifty kilograms beyond a reasonable
doubt, we REVERSE the district court’s determination of the
amount of drugs, VACATE Darwich’s sentence based both
on the insufficient drug quantity conclusion and also on the
district court’s failure to issue a ruling on the disputed matter
of whether Darwich deserved a leadership enhancement, and
REMAND this case to the district court with instructions to
proceed in accordance with this opinion and sentence
Darwich to a prison term not exceeding sixty months.
36 United States v. Darwich Nos. 99-2147; 01-2044
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
KENNEDY, Circuit Judge, concurring in part and
dissenting in part. Defendant raised no hearsay objection of
any kind at his sentencing hearing, including no objection to
Rush’s testimony, and indeed stipulated to the admission of
extensive grand jury testimony, all of it hearsay. He did not
raise the hearsay issue before the district court on his
resentencing after remand following Apprendi. He did not
raise the issue in his appellate briefs.
The majority holds that defendant did not forfeit or waive
the issue because in his Supplement to Sentencing
Memorandum and Objections (to the presentence report) he
raised a question as to the reliability of Rush’s nephews’
hearsay statements. However, he raised no objection to their
admissibility. There was nothing to alert the district court to
the present hearsay issue. The issue was first raised by this
court at oral argument. Defendant is therefore limited to
plain error review. Federal Rule of Evidence 103(d). To
establish plain error, a claimant must show that there is
“(1) error, (2) that is plain, . . . (3) that affects substantial
rights,” and (4) that “seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” United States
v. Cotton, 535 U.S. 625, 631 (2002) (internal quotation marks
omitted); Johnson v. United States, 520 U.S. 461, 466-67
(1997).
The district court’s reliance on Orlando Rush’s testimony
was not plain error because Rush’s testimony was not plainly
hearsay. Federal Rule of Evidence 801(d)(2)(E) provides that
a statement is not hearsay if it is “a statement by a co-
conspirator of a party during the course and in furtherance of
the conspiracy.” Rush’s nephews bagged illegal drugs for
Darwich, and thus were co-conspirators. The majority agrees
that Rush was a co-conspirator since he admitted to re-selling

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Nos. 99-2147; 01-2044 United States v. Darwich 37
drugs purchased from Darwich. He also aided the conspiracy
by providing transportation for his nephews to Darwich’s
home with knowledge that they were paid to bag drugs there.
Although we have no specific finding that the nephews’
statements were made in furtherance of the conspiracy, it
would not have been plain error for the district court to so
find. A statement is made in furtherance of a conspiracy if it
is intended to promote the objectives of the conspiracy.
United States v. Hamilton, 689 F.2d 1262, 1270 (6th Cir.
1982). This includes statements “made to keep a conspirator
abreast of a co-conspirator’s activities . . . .” United States v.
Rios, 842 F.2d 868, 874 (6th Cir. 1988) (citing United States
v. Layton, 720 F.2d 548, 557 (9th Cir. 1983)) (internal
quotation marks omitted). Rush’s nephews kept Rush, a co-
conspirator, apprised of the quantity of drugs they were
bagging for Darwich. We have affirmed a district court’s
ruling in a similar instance in an unpublished decision, United
States v. Brooks, 41 Fed. Appx. 718, 723 (6th Cir. 2002). In
Brooks, the district court admitted the statements of a co-
conspirator that he and the defendant had “gone to Knoxville
to cook some methamphetamine.” Id. We held that, because
such statements could be interpreted as keeping the listener
abreast of the activities of the conspirators, they were
admissible under Rule 801(d)(2)(E). Id. Based on this case
law, it would not have been plain error to hold that Rush’s
statements were admissible non-hearsay.
Orlando Rush’s testimony about his nephews’ statements
is alone sufficient to affirm both the 50 kilograms beyond a
reasonable doubt and 100 kilograms by a preponderance of
the evidence. Rush testified that his nephews told him they
bagged one pound per day from “some time” in 1996 until he
surrendered in 1998 – dates roughly consistent with the 104
week span within the conspiracy. He testified he knew that
the nephews worked about every night since he dropped them
off about every day. Based on the five-day-per-week
38 United States v. Darwich Nos. 99-2147; 01-2044
1Had the defendant objected to Rush’s hearsay testimony or not
stipulated to Agent Dodge’s testimony or the grand jury transcripts, there
is at least some indication in the record that one of the nephews could
have been called as a witness. (J.A. 129)
2The stipulation would have capped the sentence under the cap in the
plea agreem ent.
assumption, this evidence alone supports a finding of 236
kilograms of marijuana.1
Because this evidence is more than sufficient to insulate the
district court’s quantity calculation from possible Apprendi
error, I would not need to reach the question of whether
reliance on Agent Dodge’s testimony about the conspiracy
and transcripts of the grand jury proceedings would have been
plain error. Any hypothetical error is harmless. However, I
cannot see how accepting a stipulation to grand jury
testimony can be plain error or even error under the
circumstances here.
Defendant cannot establish that his rights are substantially
affected or the fairness of the proceedings significantly
affected by any error here, even if one found it did occur.
After the remand, the defendant and the government sought
to have the district court accept a joint stipulation that the
government would be able to prove that defendant trafficked
between 80 and 100 kilograms of marijuana.
While the district judge rejected the stipulation, holding
that it was his responsibility under the sentencing guidelines
to determine the amount, and instead conducted the
evidentiary hearing,2 that defendant was willing to stipulate
to that amount is persuasive that neither his rights nor the

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Nos. 99-2147; 01-2044 United States v. Darwich 39
3Further, based on T om Smith’s testimony, up to 79 kilograms can
be attributed to Darwich based on nickel bag sa les alone. Smith testified
that 90 percent of Canfield Market’s customers purchased nickel bags.
His testimony established that between 65 and 70 customers came to the
market during his shift, which was from 5:00 p.m. to 9:00 p.m., closing
time. He further testified that the market typically opened at 11:00 a.m.
Assum ing a relatively constant rate of patronage throughout the day, the
Canfield Market had approximately16 customers per hour, and 160
customers per day. If 90 percent of its 160 customers per day bought one-
gram nickel bags five days per week, then over the course of the
conspiracy Darwich so ld 79 kilograms in nickel bags alone.
fairness and integrity of the proceeding are substantially
affected by a finding of 50 kilograms.3
For the foregoing reasons, I dissent from this portion of the
court’s decision.

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