United States of America v. Mansour W. Saikaly

20 United States v. Saikaly No. 98-3786
first by objecting to the presentence investigation report and then in his
direct appeal. His failure to preserve these issues has now resulted in a
procedural default, and it is improper for this Court to do as the majority
has done here and consider his defaulted arguments on appeal.
For the foregoing reasons, I dissent.
*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0101P (6th Cir.)
File Name: 00a0101p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
M ANSOUR W. S AIKALY ,
Defendant-Appellant.
;>

1
No. 98-3786
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 92-00200—Sam H. Bell, District Judge.
Submitted: August 6, 1999
Decided and Filed: March 23, 2000
Before: BATCHELDER and COLE, Circuit Judges;
MARBLEY, District Judge.*

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2 United States v. Saikaly No. 98-3786
_________________
COUNSEL
ON BRIEF: Dennis P. Levin, Cleveland, Ohio, for
Appellant. Samuel A. Yannucci, ASSISTANT UNITED
STATES ATTORNEY, Akron, Ohio, for Appellee.
MARBLEY, D. J., delivered the opinion of the court, in
which COLE, J., joined. BATCHELDER, J. (pp. 18-20),
delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
ALGENON L. MARBLEY, District Judge. Defendant-
Appellant Mansour W. Saikaly appeals the 240-month
sentence imposed by the district court upon resentencing
following the vacation of his conviction for using or carrying
a firearm in relation to a drug trafficking crime pursuant to 18
U.S.C. § 924(c) and the vacation of his designation as an
armed career criminal pursuant to 18 U.S.C. § 924(e).
Specifically, Saikaly objects to the district court’s: 1)
enhancement of his sentence pursuant to U.S.S.G.
§ 2D1.1(b)(1) for possession of a firearm; 2) failure to
consider his objection to the amount of drugs for which he
was responsible; and 3) failure to consider his objection to his
criminal history category and the determination that he was a
criminal history category V rather than a IV. Saikaly also
objects to a typographical error on the judgment and
commitment order filed after the resentencing. For the
reasons that follow, we AFFIRM in part and REVERSE in
part, and REMAND for further proceedings consistent with
this opinion.
No. 98-3786 United States v. Saikaly 19
1The majority opinion inaccurately claims “the Dissent’s conclusion
is that these issues were not contained in Saikaly’s §2255 habeas petition
and therefore have not been preserved for appellate review.” This is not
the basis for this dissenting opinion. It is the majority’s attempt to
characterize Saikaly’s challenges as being directed solely to “the ‘new’
presentence report” to avoid finding a procedural default that is the basis
for this dissent. Saikaly’s original sentence was based, inter alia, upon
two factual findings: (1) that the amount of cocaine allocated to him fell
within the range of 5 to 15 kilograms, and (2) that his criminal history
placed him at Category V. Therefore, if Saikaly disputed the accuracy of
either of those findings, it was incumbent upon him to challenge them
his counsel had been ineffective in failing to object to the pre-
sentence report’s determination that he was an armed career
offender, but was denied relief on the remaining claims. The
§ 2255 motion currently before us on appeal followed. In it,
Saikaly challenges the quantity of drugs attributed to him for
purposes of sentencing and the criminal history category
established pursuant to the Sentencing Guidelines.
We will not review on appeal claims presented in § 2255
habeas proceedings that were not presented previously on
direct appeal. See Chandler v. Jones, 813 F.2d 773, 777 (6th
Cir. 1987) (“It is a well-established principle of appellate
review that appellate courts do not address claims not
properly presented below . . . . [T]his court relie[s] on this
principle in rejecting attempts by habeas petitioners to assert
new claims on appeal not presented in their petition or
proceedings below.”). See also United States v. Vaughn, 955
F.2d 367, 368 (5th Cir. 1992) (per curiam) (holding that non-
constitutional claims that could have been raised on direct
appeal may not be asserted in a collateral proceeding). The
issues regarding the quantity of drugs attributed to Saikaly
and the guideline calculation of his criminal history category
were cognizable on direct appeal. Nonetheless, neither in his
direct appeal nor in his original or supplemental § 2255
motions did Saikaly ever assign error to the district court’s
decision concerning those matters. In fact, Saikaly first raised
the issue after the government filed its response to Saikaly’s
§2255 petition. Because Saikaly failed to preserve the issues
for review, they are not properly before this Court.1

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18 United States v. Saikaly No. 98-3786
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
ALICE M. BATCHELDER, concurring in part, dissenting
in part. I concur in part III.A of the majority’s holding,
affirming the district court’s enhancement of Saikaly’s
sentence pursuant to U.S.S.G. § 2D1.1(b)(1). For the reasons
that follow, however, I dissent from parts III.B and III.C,
which remand to the district court the issues concerning the
quantity of drugs attributed to Saikaly and his criminal history
category.
As the majority states, Saikaly raised “various challenges”
to his conviction on direct appeal in 1995. To be more
precise, Saikaly assigned as error in the district court: (1) the
failure to suppress evidence seized in violation of the “knock
and announce” rule; (2) the violation of his Sixth Amendment
right to a speedy trial; (3) the failure to give a multiple
conspiracy jury instruction; (4) insufficiency of the evidence
to support conviction on the conspiracy charge; (5)
insufficiency of the evidence to support conviction on the
firearm charges; and (6) the admission of certain physical
evidence seized in New York when he was arrested on
unrelated charges. See United States v. Ross, 53 F.3d 332,
1995 WL 253183 (6th Cir. April 27, 1995) (unpublished).
After his unsuccessful appeal, Saikaly filed a § 2255 motion,
followed by a supplemental § 2255 motion, in which he
claimed that: (1) his § 924(c) conviction was invalid under
Bailey; (2) he was sentenced improperly as an armed career
criminal under § 924(e)(2); (3) evidence seized in New York
during an unrelated arrest was improperly admitted at trial;
and (4) his counsel was ineffective at both the trial and
sentencing stages because counsel failed to move for
suppression of evidence seized in New York in violation of
his Fourth Amendment rights and failed to object to the
determination in the pre-sentence report that Saikaly should
be sentenced as an armed career offender. Saikaly prevailed
in the district court on the Bailey claim and on the claim that
No. 98-3786 United States v. Saikaly 3
1Records indicated that Gadsen purchased the Glock as well as a
Winchester .12 gauge shotgun (seized from Saikaly’s bedroom when he
was arrested) and a Ruger 9mm semi-automatic pistol (seized in a raid of
the crack house thought to be run by Saikaly).
2The original indictment charged the eighteen defendants with
conspiracy to distribute and possess with intent to distribute cocaine.
I.
In May 1992, Saikaly was arrested following a year-long
investigation in Akron, Ohio, targeting large-scale drug
dealers James Dillehay, Jerome Gordon and Anthony
Johnson. Saikaly allegedly ran a crack house on the south
side of Akron and purchased cocaine from Gordon and
Johnson on numerous occasions. Saikaly met Johnson
through David Shepherd, who also ran a “crack house” on the
south side of Akron. Initially, Saikaly and Shepherd were
friendly, but a rift developed. According to the presentence
investigation report, Saikaly learned that Shepherd intended
to rob him. To protect his narcotics transactions, Saikaly
allegedly instructed his girlfriend, Lisa Gadsen, to purchase a
Glock 9mm semi-automatic pistol for him.1 In a wiretapped
phone conversation, Johnson told Shepherd that Saikaly had
shown him the Glock.
On May 1, 1992, Saikaly and two individuals were stopped
in New York City in a black Blazer owned by Saikaly’s
brother, Maurice. The individuals were stopped because the
Blazer matched a description of a vehicle involved in a
robbery. The officers searched the vehicle and found
Gadsen’s loaded Glock 9mm in the locked glove
compartment, ammunition, and $22,000 in cash. Saikaly and
his companions were arrested, but those charges were
dismissed and Saikaly returned to Akron.
On May 22, 1992, Saikaly was again arrested at his
residence in Akron and ultimately charged, along with twelve
co-defendants, in a ten-count superseding indictment2 for
conspiracy to distribute and possess with the intent to

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4 United States v. Saikaly No. 98-3786
distribute cocaine, and various other drug and firearm
charges. Saikaly was named in Count 1 (conspiracy), Count 7
(using or carrying a firearm in connection with a drug-
trafficking crime, in violation of 18 U.S.C. § 924(c)), and
Counts 8 and 9 (felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1)). Co-defendants Gordon and
Johnson entered pleas of guilty and served as government
witnesses at trial, providing much of the testimony against the
other defendants. Saikaly presented four witnesses on his
behalf – his parents and his siblings. Saikaly’s brother,
Maurice, testified that he received the Winchester shotgun
from Lisa Gadsen as payment for electronics work he had
done for her, that Gadsen owned the Glock, and that he had
allowed Gadsen to drive his Blazer. Maurice also testified
that the $22,000 found in the Blazer belonged to him.
Saikaly’s mother testified that she found the Winchester
shotgun in the garage where Maurice conducted his
electronics business, and that she moved it to Saikaly’s
bedroom for safekeeping.
The jury was not persuaded by Saikaly’s defenses to the
firearms charges and convicted him on all counts. The
district court sentenced Saikaly to a total of 360 months
imprisonment (300 months on Counts 1, 8 and 9 and 60
months consecutive on Count 7). The district court found that
Saikaly was an armed career criminal pursuant to U.S.S.G.
§ 4B1.4 and assigned him criminal history category V. In
addition, the district court found that Saikaly was responsible
for more than 5 but less than 15 kilograms of cocaine.
Saikaly appealed his conviction, raising various challenges to
the search and seizure of his home, the sufficiency of
evidence, and the admission of evidence stemming from his
arrest in New York. He also claimed a violation of the
Speedy Trial Act. This court affirmed Saikaly’s conviction,
see United States v. Ross, 53 F.3d 332 (6th Cir. 1995), and the
United States Supreme Court denied certiorari.
Saikaly then filed a motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255, raising four issues
as construed by the district court: 1) Saikaly’s § 924(c)
No. 98-3786 United States v. Saikaly 17
D. Typographical Error
Saikaly complains that although the district court vacated
the § 924(c) conviction, the second judgment and
commitment order continues to state that Saikaly was found
guilty of that offense. Saikaly is correct, and the government
acknowledges the error as well. Accordingly, upon remand,
the district court should correct the judgment and
commitment order pursuant to Federal Rule of Criminal
Procedure 36, which allows for the correction of such clerical
errors.
IV.
For the foregoing reasons, we AFFIRM in part and
REVERSE in part and REMAND for further proceedings in
accordance with this opinion.

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16 United States v. Saikaly No. 98-3786
10At resentencing, the government stated that evidence indicated that
Saikaly entered the conspiracy in 1991. That would still place Saikaly’s
1985 and 1986 juvenile convictions beyond the five-year limit in criminal
history computation.
The government was correct in stating that an overt act set out in the
indictment is not the proper starting point for Saikaly’s offense; rather, the
guidelines provide that the term “commencement of the instant offense”
includes any relevant conduct. See U.S.S.G. § 4A1.2 cmt. n.8. The
district court failed to determine when Saikaly’s relevant conduct
commenced.
The sentencing which we are speaking is the one
which took place originally. The point of our hearing
today is to reduce that sentence by virtue of a change in
the law since the time the sentence was imposed, which
is obviously to Mr. Saikaly’s benefit. I don’t see this,
unless you have some thoughts, as being a total
resentencing with a sense of recommitment to the figures
here.
In addition to that, it does not seem to me that the
recollection that I have of the testimony does not
establish, even by a preponderance of the evidence, that
the January 29th date is the beginning of this, from the
standpoint of the guideline configuration.
For these reasons, I think the category V is applicable
here.
J.A. at 429-30.
This Court finds that Saikaly’s criminal history category
was at issue. For the reasons set out in the previous section,
the district court should have fully considered Saikaly’s
argument. The district court gave a limited reason for why
Saikaly was a criminal history category V: that it did not
believe that January 29, 1992 was the date Saikaly entered the
conspiracy. However, the district court failed to make a
specific finding of the date that Saikaly entered the
conspiracy, or commenced the instant offense.10 This case is
REMANDED for consideration of this issue.
No. 98-3786 United States v. Saikaly 5
conviction was not valid after Bailey v. United States, 516
U.S. 137 (1995); 2) Saikaly’s Fourth Amendment rights had
been violated in the seizure of evidence used against him at
trial; 3) the evidence obtained from the New York arrest
should not have been admitted and used against him; and 4)
Saikaly was denied effective assistance of counsel at trial and
on appeal. The district court vacated Saikaly’s § 924(c)
conviction, finding that there was no evidence that he “used”
or “carried” a firearm as defined by Bailey. In addition, the
district court agreed with Saikaly on one of his specific claims
regarding ineffective assistance of counsel: that his trial
counsel failed to object to his classification as an armed
career criminal in the presentence report because two of the
three underlying offenses did not qualify as serious drug
offenses or as violent felonies under the statute. The district
court concluded:
Mr. Saikaly’s petition for relief is granted with respect
to his § 924(c) claim and his request for resentencing
based on the court’s utilization of an erroneous
presentence report. In all other regards, Mr. Saikaly’s
petition is denied.
The Probation Department is hereby ordered to create
a new presentence form for Mr. Saikaly. Mr. Saikaly’s
new sentencing hearing will be scheduled presently.
The new presentence report ordered by the district court set
forth the following findings and/or recommendations:
1) that a two-level enhancement pursuant to U.S.S.G.
§ 2D1.1(b)(1) for possession of a firearm should be
applied;
2) that the amount of cocaine the government attributed
to Saikaly was more than 5 but less than 15 kilograms,
resulting in a base offense level of 32; however, the
report stated that the amount of cocaine Saikaly
attributed to himself was the total amount listed in the
overt acts set out in the indictment, or 2.5567

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6 United States v. Saikaly No. 98-3786
kilograms, resulting in a base offense level of 28 (for
at least 2 but less than 3.5 kilograms); and
3) that Saikaly was a criminal history category IV.
Saikaly filed various objections to the new presentence
report and also filed a detailed memorandum in support of
his objections. Saikaly objected to the following: the
enhancement of his sentence for possession of a firearm; the
amount of cocaine attributed to him; the classification as an
armed career criminal; the failure to decrease his sentence for
acceptance of responsibility; the criminal history category
over-represented the seriousness of his past; the two-level
enhancement for an aggravating role rather than a two-level
reduction for a mitigating role; and the imposition of a fine.
At sentencing, the district court noted Saikaly’s objections,
stating:
I read your brief and I think it’s marvelously well done,
but, as I indicated, the purpose of the court now is not to
reconfigure the sentence. The purpose of the court now
is to resentence in conjunction with the report. And in
my opinion that does not open the whole question of
sentencing, the quantity of drugs, et cetera, which I know
to be a position that you probably don’t agree with.
The district court determined that Saikaly’s behavior
warranted the two-level enhancement for possession of a
firearm. The district court briefly noted that Saikaly was a
criminal history category V, vacated the § 924(c) conviction
and determined that Saikaly was not an armed career criminal.
The district court resentenced Saikaly to 240 months
imprisonment. This timely appeal followed.
II.
“A court’s factual findings in relation to the application of
Sentencing Guidelines are subject to a deferential ‘clearly
erroneous’ standard of review. Legal conclusions regarding
the Guidelines, however, are reviewed de novo.” United
No. 98-3786 United States v. Saikaly 15
9The guidelines provide that a criminal history point is added for a
juvenile sentence imposed within five years of the defendant’s
commencement of the instant offense. See U.S.S.G. § 4A1.2(d). Here,
the conspiracy allegedly started in 1988, and Saikaly’s juvenile
convictions at issue were in 1985 and 1986.
conspiracy, were used as the starting point in order to
count prior juvenile arrests.9
Over the years the relevant conduct issues said that,
well, if there is any evidence that a person hasn’t been in
a conspiracy since its beginning, then in essence the time
limits vary according to when it can be determined that’s
when the person actually entered.
When I did the reconsideration, I went to the first overt
act which appeared in the indictment and found that that
occurred on January 29th, 1992. On the basis of that, I
computed the juvenile arrests. And since juvenile
convictions only carry a five year rather than a 10 year or
15 year, as the adults do, some of the early juvenile
arrests that have been configured into the original report
did not get points in the revised ruling. That difference
is what created a four rather than a five.
J.A. at 428 (footnote added).
The government disagreed, stating that the issue was not
before the court. The government also stated:
I would also indicate that using an overt act as the
starting point because, as the court is aware, overt acts
are something that the government need not allege.
The fact that the first overt act occurred in 1992 does
not square with the testimony that was presented in this
case, which indicated that Mr. Saikaly was dealing with
Jerome Gordon and Anthony Johnson during 1991.
J.A. at 429.
The district court apparently agreed with the government,
stating:

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14 United States v. Saikaly No. 98-3786
7Under the same rationale, the issues raised in subpart III.C are also
properly before this Court.
8More than 5 kilograms of cocaine requires 20 year mandatory
minimum. See 21 U.S.C. § 841(b)(1)(A)(ii).
failure to make such a ruling, is indeed properly before this
Court.
The Court finds that the actual issues raised in subparts
III.B and C are properly before it. Accordingly, this case is
REMANDED to the district court for consideration of the
issue of quantity of drugs attributable to Saikaly.
C. Criminal History Category 7
Saikaly argues that the district court erred by determining
that he was a criminal history category V, rather than a
criminal history category IV, as recommended in the second
presentence report.
At the outset, there appears to be a discrepancy in the
district court’s determination. At the sentencing hearing, the
district court stated that Saikaly was a criminal history
category V; however, the second judgment and commitment
order states that Saikaly is a criminal history category IV.
The district court did not rely on the guideline range as
determined by the offense level and the criminal history
category in sentencing because a statutory mandatory
minimum was applicable.8 Thus, it is uncertain which
criminal history category Saikaly was assigned.
At resentencing, the district court noted that there was
uncertainty as to Saikaly’s criminal history category. The
probation officer explained why he had determined that
Saikaly was a criminal history IV rather than V:
Some of [Saikaly’s] juvenile arrests had been applied
because of 1988, which was the beginning of the
No. 98-3786 United States v. Saikaly 7
States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997), cert.
denied, 118 S. Ct. 1572 (1998).
III.
A. Enhancement for Possession of a Firearm
The United States Sentencing Guidelines permit a
sentencing enhancement for possession of a firearm during a
drug-trafficking crime. See U.S.S.G. § 2D1.1(b)(1). This
enhancement does not apply when a defendant is convicted
and sentenced for violating 18 U.S.C. § 924(c) because to do
so would constitute impermissible double counting. See
U.S.S.G. § 2K2.4 cmt. n.2. In this Circuit, it is well
established that a district court has the authority to apply the
§ 2D1.1(b)(1) enhancement when a defendant is resentenced
after the vacation of a § 924(c) conviction. See Pasquarille
v. United States, 130 F.3d 1220, 1222 (6th Cir. 1997) (stating
that Ҥ 2255 gives the court jurisdiction and authority to
reevaluate the entire aggregate sentence to ensure that the
defendant receives the appropriate sentence on the remaining
count”). In addition, this Court has held that the application
of the enhancement does not violate the Double Jeopardy
Clause. See id. at 1222-23.
To obtain an enhancement pursuant to § 2D1.1(b)(1), the
government must show by a preponderance of the evidence
that the defendant possessed the firearm during the drug-
trafficking offense. See United States v. Sanchez, 928 F.2d
1450, 1460 (6th Cir. 1991). Once the government satisfies its
initial burden of showing that a weapon was present,
however, the burden shifts to the defendant to show that it
was clearly improbable that the weapon was connected to the
offense. See United States v. McGhee, 882 F.2d 1095, 1097-
98 (6th Cir. 1989). As the commentary to U.S.S.G. § 2D1.1
explains:
The enhancement for weapon possession reflects the
increased danger of violence when drug traffickers
possess weapons. The adjustment should be applied if
the weapon was present, unless it is clearly improbable

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8 United States v. Saikaly No. 98-3786
that the weapon was connected with the offense. For
example, the enhancement would not be applied if the
defendant, arrested at his residence, had an unloaded
hunting rifle in the closet.
U.S.S.G. § 2D1.1 cmt. n.3.
Here, Saikaly argues that there was no evidence that he
possessed a firearm during the drug-trafficking offense.
Saikaly’s argument wholly lacks merit. The evidence
indicated that Saikaly obtained the Glock 9mm to protect his
drug-trafficking activities and that he showed the Glock to
Johnson, one of his drug sources. In addition, the taped
conversations from Johnson’s wiretapped telephone indicates
that Johnson told Shepard that Saikaly was carrying the Glock
in a shoulder holster. Moreover, the Glock was found – along
with $22,000 in cash – in the vehicle Saikaly was driving in
New York City. Finally, a loaded Winchester shotgun was
seized from Saikaly’s bedroom when he was arrested. This
evidence was more than enough to support the district court’s
conclusion that Saikaly possessed a firearm.
Saikaly argues that he presented evidence “explaining” the
presence of the firearms. The evidence that Saikaly presented
was that Lisa Gadsen owned the firearms. Saikaly’s brother
testified that Gadsen had driven the Blazer, and that Gadsen
put the Glock in the glove compartment. Saikaly’s brother
further testified that Gadsen gave the Winchester to him,
which was followed by Saikaly’s mother’s testimony that she
put the Winchester in Saikaly’s room. As the district court
stated at the resentencing hearing, “with all due respect, I
don’t think anybody in the courtroom believed what
[Saikaly’s brother and mother] had to say.”
Saikaly also seems to rely on the fact that he did not own
the firearms. This is irrelevant. The issue is not ownership,
but possession of the firearms. Here, a preponderance of the
evidence indicated that Saikaly possessed the firearms during
the drug-trafficking conspiracy. Saikaly failed to show that
the firearms were not connected to the offense.
No. 98-3786 United States v. Saikaly 13
Court to make that determination; the issue is whether the
district court erred by failing to consider Saikaly’s objection.
We find that it did.
The Dissent would find that the quantity of drugs attributed
to Saikaly and the criminal history category assigned to him
are not properly before this Court. The basis of the Dissent's
conclusion is that these issues were not contained in Saikaly's
§ 2255 habeas petition and therefore have not been preserved
for appellate review. The Dissent has mischaracterized the
issues that are presently before this Court. Saikaly's appeal
does not arise from a § 2255 habeas motion; rather, it arises
from the sentence the district court imposed pursuant to the
"new" presentence report. Saikaly appeals the district court's
failure to consider objections to the new presentence report.
The Dissent's assertion would be correct if Saikaly's appeal
before this Court were based on his § 2255 habeas petition,
see Chandler v. Jones, 813 F.2d 773, 777 (6th Cir. 1987), but
this is not the case.
Here, following Saikaly's successful § 2255 motion, the
district court ordered the Probation Department to prepare a
"new" presentence report. The new presentence report
differed in substance from the first report in that, for example,
for the first time 2.5587 kilograms of cocaine were attributed
to Saikaly. See Part I. After the new report was filed, Saikaly
timely filed his objections. Specifically, Saikaly objected to
the quantity of drugs that were attributed to him and to the
criminal history category he was assigned. The district court
refused to consider these timely filed objections when it
sentenced Saikaly, thereby disregarding the mandate of
Federal Rule of Criminal Procedure 32(c)(1). Saikaly's direct
appeal followed.
Once the district court ordered the creation of a new
presentencing report, it was obligated to rule on Saikaly's
"unresolved objections" and make a "written record of such
findings and determinations." Fed. R. Crim. P. 32(c)(1); see
also United States v. Tackett, 113 F.3d 603, 613-14 (6th Cir.
1997). Saikaly's appeal, which is based on the district court's

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12 United States v. Saikaly No. 98-3786
6By analogy, Fed. R. Crim. P. 32(c)(3)(C), which requires district
courts to allow a defendant the right to allocution at sentencing, has been
held not to apply at § 2255 resentencings. See Pasquarille, 130 F.3d at
1223 (stating that “[t]here is nothing in § 2255 which provides that a
defendant has either an absolute right to be present or a right of allocution
[at resentencing]”). There is, however, a distinguishing factor between
this case and the Pasquarille case: the Pasquarille court noted that “there
are no disputed facts in this case.” Id. Here, we certainly have disputed
facts, which requires a different result.
With respect to a district court’s obligations at sentencing,
Federal Rule of Criminal Procedure 32(c)(1) requires a
district court to make a factual finding for each contested
factor of the presentence report. This circuit requires “literal
compliance” with the rule, because such factual findings help
“to ensure that defendants are sentenced based on accurate
information and provide[ ] a clear record for appellate courts,
prison officials and administrative agencies who may later be
involved in the case.” United States v. Tackett, 113 F.3d 603,
613-14 (6th Cir. 1997).6
The district court should have considered Saikaly’s
objections to the second, “new” presentence report. The
district court ordered the preparation of a new report without
limitation, and the new report set forth a statement regarding
the amount of drugs that differed from the original
presentence report. Saikaly filed detailed objections to the
second presentence report prior to the resentencing hearing.
Given the importance of the presentence report, district courts
should address any objections that a defendant, or that the
government might have, to a “new” report that contains
materially different information than the first presentencing
report even if these objections come during resentencing.
This reasoning corresponds with this circuit’s de novo
approach to resentencing following remand after direct
appeal.
Saikaly may not prevail on the merits of his argument,
because it seems fairly obvious that Saikaly could reasonably
foresee that more than five kilograms of cocaine were
attributable to the conspiracy. Nonetheless, it is not for this
No. 98-3786 United States v. Saikaly 9
3The superseding indictment in the case set forth overt acts indicating
that the conspiracy was responsible for well over 5 kilograms of cocaine.
The district court properly applied the § 2D1.1(b)(1)
enhancement.
B. Quantity of Drugs
Saikaly argues that the district court erred by failing to
consider his objections to the second presentence
investigation report regarding the amount of drugs attributed
to him. The government counters that Saikaly waived this
issue by failing to raise it on direct appeal and in his § 2255
motion.
The first presentence investigation report indicated that
Saikaly was responsible for more than 5 but less than 15
kilograms of cocaine. Saikaly did not make a definitive
objection to that finding. The district court, however,
construed one of his objections as pertaining to the amount of
drugs and stated that even if Saikaly was not personally
responsible for more than 5 kilograms of cocaine, “he still is
liable for quantities based on those which were reasonably
foreseeable to be involved in by the members of the
conspiracy itself.” This was the extent of the district court’s
findings regarding the amount of drugs.3
In the second presentence investigation report, prepared
after Saikaly’s successful § 2255 motion, the probation officer
again stated that the government’s position was that Saikaly
was responsible for more than 5 but less than 15 kilograms of
cocaine. In that report, however, the probation officer also
calculated the amount of drugs attributable to Saikaly
individually by adding the quantities set forth in the overt acts
listed in the superseding indictment. The report indicated that
the amount, 2.5567 kilograms, was the amount of drugs
Saikaly believed was attributable to him. However, Saikaly
objected to that finding (2.5567 kilograms) arguing that not
all of the drug amounts listed in the overt acts associated with
him should be attributed to him. Saikaly stated that he was

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10 United States v. Saikaly No. 98-3786
4Some circuits disagree, however, viewing a de novo approach to
resentencing as an unwarranted “second bite of the apple.” See United
States v. Marmolejo, 139 F.3d 528, 531 (5th Cir.), cert. denied, 119 S. Ct.
622 (1998); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
responsible for less than one kilogram of cocaine. Saikaly
also objected to the government’s position: that he was
responsible for more than 5 but less than 15 kilograms. At
the resentencing hearing, the district court did not address the
issue of the amount of drugs, stating that the purpose of the
resentencing hearing was limited and, thus, the amount of
drugs attributable to Saikaly was not at issue.
At first glance, it would appear that the government is
correct – that Saikaly waived objection to the amount of drugs
attributable to him by failing to raise the issue in his direct
appeal and in his § 2255 motion. But, there is a problem with
the government’s argument. Saikaly could not have objected
to a presentence report that had not yet been prepared.
Saikaly possibly could have objected to the amount of drugs
set forth in the first presentence report; nonetheless, a
question remains: what is the district court’s responsibility in
addressing objections to a new and different presentence
report prepared for a defendant’s resentencing?
This court has clearly stated that on remand following a
direct appeal, a district court can consider de novo any
arguments regarding sentencing if the remand order does not
limit its review. See United States v. Jennings, 83 F.3d 145,
151 (6th Cir. 1996) (finding that “[t]he only constraint under
which the district court must operate, for the purposes of
resentencing, is the remand order itself. Where the remand
does not limit the District Court’s review, sentencing is to be
de novo.”). A majority of circuits agree with a de novo
approach to resentencing.4 See, e.g., United States v.
Caterino, 29 F.3d 1390, 1394-95 (9th Cir. 1994); United
States v. Cornelius, 968 F.2d 703 (8th Cir. 1992); United
States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991); United
States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989).
The policy underlying the presumption of de novo
No. 98-3786 United States v. Saikaly 11
5The government espoused this position with respect to the first issue
presented in this appeal.
resentencing is to give the district court discretion in
balancing all the competing elements of the sentencing
calculus. See United States v. Campbell, 168 F.3d 263, 265
(6th Cir.), cert. denied, No. 99-5037, 1999 WL 462187 (U.S.
Oct. 4, 1999).
Considering the foregoing, had this been a general remand
after a direct appeal, the district court would have been
obligated to consider Saikaly’s objections to the presentence
report. This case, however, arose from a § 2255 motion, in
which the district court ordered the probation department to
prepare “a new presentence form.” The district court was not
operating from an order of remand from the court of appeals,
as in the above-mentioned cases.
The same concerns apply at resentencing whether it occurs
following direct appeal or a § 2255 motion. In the context of
a § 2255 motion, this court has held that a district court can
apply an enhancement to a drug sentence when resentencing
a defendant after vacating a § 924(c) conviction.5 See
Pasquarille, 130 F.3d at 1222. The Pasquarille court noted:
It is clear that the 924(c) offense and the underlying
offense are interdependent, and must be considered as
components of a single comprehensive sentencing plan.
Therefore, § 2255 gives the court jurisdiction and
authority to reevaluate the entire aggregate sentence to
ensure that the defendant receives the appropriate
sentence on the remaining count.
Id. (citation omitted). The government counters this
argument by stating that the present issues are not
“interdependent” as is the case with § 924(c) and U.S.S.G.
§ 2D1.1(b)(1). Despite this difference, however, Pasquarille
makes it clear that a district court has the authority, on
resentencing, to reevaluate “the entire aggregate sentence.”

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