United States of America v. CRAIG ALAN SWANBERG (02-1659) and ADAM ELWIN TUIMALA (02-1836)

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0164P (6th Cir.)
File Name: 04a0164p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRAIG ALAN SWANBERG
(02-1659) and ADAM ELWIN
TUIMALA (02-1836),
Defendants-Appellants.
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Nos. 02-1659/1836
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 01-00033—Robert Holmes Bell, Chief District Judge.
Argued: April 29, 2004
Decided and Filed: June 3, 2004
Before: GUY, GILMAN, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Eva A. Kipper, McDONALD, MARIN &
KIPPER, Marquette, Michigan, Jane E. Lee, Portland, Maine,
for Appellants. Joan E. Meyer, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for
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Appellee. ON BRIEF: Eva A. Kipper, McDONALD,
MARIN & KIPPER, Marquette, Michigan, Jane E. Lee,
Portland, Maine, for Appellants. Joan E. Meyer,
ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Craig Swanberg
and Adam Tuimala were part of a drug distribution ring
operating in Illinois and Michigan. Tuimala sold cocaine and
marijuana to Terri Sanderson of Marquette, Michigan.
Sanderson in turn distributed the drugs to various individuals,
including Swanberg, who would then sell the drugs and share
the profits with Sanderson. Swanberg was convicted by a
jury of conspiring to distribute cocaine and of possessing
cocaine with the intent to distribute, all in violation of
21 U.S.C. §§ 846 and 841(a)(1). He was sentenced to 63
months in prison. Tuimala pled guilty to one count of
conspiring to distribute cocaine, also in violation of 21 U.S.C.
§§ 846 and 841(a)(1), and was sentenced to 84 months in
prison.
Swanberg contends on appeal that the district court
committed clear error in determining the drug quantity that
was attributable to him for sentencing purposes. Tuimala
argues that his waiver of the right to appeal his sentence was
invalid because his plea agreement with the government was
breached when the district court unwittingly relied on
information from Tuimala’s guilty-plea proffer to enhance his
sentence for a leadership role in the offense. For the reasons
set forth below, we AFFIRM Swanberg’s sentence but
VACATE Tuimala’s sentence and REMAND his case for
the limited purpose of resentencing without the sentence
enhancement.

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Nos. 02-1659/1836 United States v. Swanberg et al. 3
I. ANALYSIS
A. The quantity of drugs attributable to Swanberg
Swanberg contends that the district court erred in
attributing 18.75 ounces of cocaine and 9 grams of marijuana
to him in calculating his sentence. “We review a district
court's drug quantity determination for clear error. The
government must prove the amount to be attributed to a
defendant by a preponderance of the evidence.” United States
v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000) (citations
omitted). This court has also held that “[t]estimonial
evidence from a coconspirator may be sufficient to determine
the amount of drugs for which another coconspirator should
be held accountable.” Id.
At sentencing, the district court relied on the following
statement of facts set forth in the Presentence Report:
Using the most conservative estimate of the quantity of
drugs received by Ms. Sanderson from Mr. Tuimala, she
is culpable for 25 ounces (708.75 grams) of cocaine and
8 pounds (3,628.8 grams) of marijuana. This quantity
was arrived at by taking into account Ms. Sanderson’s
report of her frequency and quantity of purchases from
Mr. Tuimala, along with Mr. Tuimala’s report of his
sales to Ms. Sanderson and her boyfriend when the two
traveled to Chicago for said transactions. Using a two-
week interval between purchases beginning on
February 1, and ending on May 19, 2001, it was
estimated a total of eight transactions can be attributed to
Ms. Sanderson. The evidence at hand reflects four 2-
pound purchases of marijuana, and the following cocaine
purchases: four at 4 ounces each (based [upon] Mr.
Tuimala’s report and Ms. Sanderson’s acknowledgment
of transactions of up to 4 ounces), one at 3 ounces (based
on Ms. Sanderson’s report of transactions of 2 to 3
ounces), and three at 2 ounces each (based on
conservative application, to the remaining number of
4 United States v. Swanberg et al. Nos. 02-1659/1836
transactions of the minimum amount Ms. Sanderson
reported she would purchase/receive from Mr. Tuimala).
Ms. Sanderson testified [that] Mr. Swanberg received 75
percent of the cocaine she purchased from Mr. Tuimala.
Taking into account the conservative quantity of cocaine
attributed to Mr. Sanderson, receipt of this percentage of
the total amount distributed or intended for distribution
provides a culpability attributable to Mr. Swanberg of
18.75 ounces (531.5 grams).
Although Swanberg objected to the Presentence Report’s
calculation of the drug quantity attributable to him, he
produced no contradictory evidence at the hearing. This court
has held that “[i]n most instances, a sentencing court may rely
on undisputed facts that are recited in a presentence report to
conclude that the defendant committed acts offered as
relevant conduct.” United States v. Shafer, 199 F.3d 826, 830
n1. (6th Cir. 1999); see also Fed. R. Crim. P. 32(i)(3) (“At
sentencing, the court . . . may accept any undisputed portion
of the presentence report as a finding of fact . . . .”). In the
present case, the facts set forth in the Presentence Report were
consistent with the other evidence presented in Swanberg’s
case. The district court therefore did not clearly err by relying
on the Report in determining the quantity of drugs attributable
to Swanberg.
B. Tuimala’s waiver of his right to appeal
Criminal defendants may waive their right to appeal as part
of a plea agreement so long as the waiver is made knowingly
and voluntarily. United States v. Fleming, 239 F.3d 761, 763-
64 (6th Cir. 2001). In the present case, Tuimala waived his
right to appeal his sentence in his plea agreement, but now
contends that the waiver was not knowingly made because the
district court erroneously informed him at the sentencing
hearing that he had the right to appeal. “This Court reviews
the question of whether a defendant waived his right to appeal

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Nos. 02-1659/1836 United States v. Swanberg et al. 5
his sentence in a valid plea agreement de novo.” United
States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003).
The plea agreement between Tuimala and the government
states that “[t]he defendant and the United States knowingly
and expressly waive all rights conferred by 18 U.S.C. § 3742
to appeal whatever sentence is imposed, including any issues
that relate to the establishment of the guideline range . . . .”
At the plea colloquy, Tuimala answered “yes” when the
district court asked if he “had an adequate opportunity to read
and review this entire plea agreement with [his] attorney[.]”
The prosecutor then read into the record various parts of the
plea agreement. He also explained that the agreement
“specifically states that there is no appeal—Mr. Tuimala
waives the right to appeal the calculation of the guideline
range and . . . he can only appeal a departure upward or
downward from the guideline range or a sentence that exceeds
the maximum set by law.” Finally, the district court expressly
found that “the plea is made knowingly and with full
understanding of the rights that I’ve explained to the
defendant.” At the subsequent sentencing proceeding,
however, the district court erroneously informed Tuimala that
“[y]ou have a right of appeal from the sentence in this
matter.” Tuimala contends that, as a result of the district
court’s incorrect statement at sentencing, he did not
knowingly give up his right to appeal.
This court faced a nearly identical situation in United States
v. Fleming, 239 F.3d 761 (6th Cir. 2001), where the defendant
waived his right to appeal his sentence as part of a written
plea agreement. At the plea colloquy, the district court orally
informed the defendant that “the Government has the right to
appeal any sentence that I might impose. You, on the other
hand, have given up your right to appeal any sentence that I
might impose, even though you don’t know what the sentence
is going to be.” Id. at 763. The court also found “that
Fleming’s guilty pleas had been knowingly and voluntarily
entered.” Id. At the subsequent sentencing proceeding,
however, the district court erroneously informed the
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defendant that “you do have the right to appeal this matter to
the United States Court of Appeals for the 6th Circuit.” Id.
On appeal, this court held that “[t]he record here clearly
demonstrates that Fleming understood the waiver contained
in the plea agreement[,]” id. at 764, and that the district
court’s subsequent statement to Fleming did not restore his
right to appeal. Id. at 765. This court therefore dismissed the
appeal. Id. at 765-66.
As in Fleming, the waiver provision in the present case was
contained in a written plea agreement, Tuimala was informed
in open court that he had given up his right to appeal
whatever sentence he received, and the district court expressly
found that Tuimala made the waiver knowingly. Tuimala
also “had an adequate opportunity to read and review this
entire plea agreement with [his] attorney[,]” a factor not
mentioned in Fleming, but which also suggests that Tuimala
knowingly waived his appellate rights. We therefore
conclude that Tuimala knowingly waived the right to appeal
whatever sentence he received, despite the district court’s
incorrect statement to the contrary at Tuimala’s sentencing
hearing.
C. The government’s alleged breach of its plea
agreement with Tuimala
1. Standard of review
Tuimala’s alternative position is that even if he would have
normally been barred from appealing due to his waiver, he is
not so bound in the present case because the plea agreement
was breached when information from his guilty-plea proffer
was used to enhance his sentence. This use was contrary to
the government’s express promise that the proffer information
would not be used “in a subsequent prosecution or at
sentencing in this case.”
Whether the plea agreement was breached is an issue that
we would presumptively review de novo. United States v.

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Nos. 02-1659/1836 United States v. Swanberg et al. 7
Barnes, 278 F.3d 644, 646 (6th Cir. 2002). In the present
case, however, Tuimala objected at sentencing to the district
court’s application of the sentence enhancement, but did not
argue that the plea agreement had been breached. The
government therefore contends that Tuimala has forfeited this
argument on appeal. See United States v. Olano, 507 U.S.
725, 733 (1993) (explaining that “forfeiture is the failure to
make the timely assertion of a right”).
In support of its position, the government relies on the case
of United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995)
(per curiam), where the argument that the prosecution had
breached the plea agreement was deemed forfeited because
the defendant had failed to raise the issue at sentencing. The
Cullens court, however, did not consider Rule 52(b) of the
Federal Rules of Criminal Procedure, which provides that “[a]
plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.” This
was an oversight in light of the fact that in Olano, decided
two years prior to Cullens, the Supreme Court explained that
“forfeiture . . . does not extinguish an ‘error’ under Rule
52(b).” 507 U.S. at 733. Moreover, in United States v.
Koeberlein, 161 F.3d 946 (6th Cir.1998), this court noted that
some prior panels, including the one that decided Cullens, had
“declined to review objections that were not raised below[,]”
id. at 948, while other panels had applied plain-error review
where defendants failed to raise a sentencing issue in the
district court. Id. at 949. The Koeberlein court went on to
state:
As these cases indicate, our opinions have not made
crystal clear whether failure to raise a timely objection to
a sentencing decision in the district court precludes us
from conducting review for plain error on appeal. We
hold that it does not. Where, as here, a criminal
defendant has failed to object below, he or she must
demonstrate that the error was plain as defined by Fed.
R. Crim. P. 52(b) before we may exercise our discretion
to correct the error.
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Id. This court’s decisions after Koeberlein have consistently
applied plain-error review where a defendant fails to claim
during sentencing that the government has breached the plea
agreement. Barnes, 278 F.3d at 646; Teeple v. United States,
No. 00-1389, 2001 WL 873644, at *1 (6th Cir. July 26, 2001)
(unpublished opinion).
In light of Olano and the authorities cited above, we will
apply the plain-error standard of review to this issue. “When
reviewing a claim under a plain error standard, this Court may
only reverse if it is found that (1) there is an error; (2) that is
plain; (3) which affected the defendant’s substantial rights;
and (4) that seriously affected the fairness, integrity or public
reputation of the judicial proceedings.” Barnes, 278 F.3d at
646. Plain error may be committed by the government as
well as by the district court. Id. at 649 (reversing a conviction
because the government failed to make a certain sentencing
recommendation as promised in the plea agreement).
2. Alleged breach of the plea agreement
The government promised in the written plea agreement
that the information from Tuimala’s guilty-plea proffer would
not be used against him at sentencing. In his proffer, Tuimala
stated that he
supplied multiple individuals with cocaine and marijuana
for distribution in Marquette County, Michigan. These
distributors would receive their supply of illegal drugs
from the defendant through a rendevous with him at
predetermined locations in Chicago, Illinois or
Marquette.
This information was repeated in Paragraph 55 of the
Presentence Report. Significantly different information was
contained in the statement of facts to which the parties
stipulated as part of the plea agreement. The stipulation
provides in relevant part that “[f]rom February to May, 2001,
Adam Elwin Tuimala supplied Terr[i] Sanderson with cocaine

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Nos. 02-1659/1836 United States v. Swanberg et al. 9
. . . . Sanderson, in turn, sold the cocaine to Craig Swanberg,
Richard Feathers, and others.” The material difference
between the proffer and the stipulation is that the proffer
states that Tuimala supplied drugs to “multiple individuals[,]”
whereas the stipulation names only Sanderson as the recipient
of drugs from Tuimala.
At sentencing, the district court enhanced Tuimala’s
offense levels by two levels for his alleged leadership role in
the offense. The court made the following statement in
connection with the enhancement:
[A page of the plea agreement] contains the parties’
stipulation to the following statement of facts. . . .
[F]rom February to May of 2001, Adam Elwin Tuimala
supplied Terri Sanderson with cocaine, which Sanderson
distributed to others in and around Marquette,
Michigan. . . .
Is that accurately what was entered?
[Defense counsel]: That’s accurate, Your Honor.
[The prosecutor]: Yes, Your Honor.
THE COURT: Okay. Paragraph 55 [of the Presentence
Report] as to role in the offense, I believe, which the
objection specifically addresses is that Mr. Tuimala
supplied multiple individuals with cocaine and marijuana
for distribution in Marquette County, Michigan. These
distributors would receive their supply of illegal drugs
from the defendant through a rendezvous with him at
predetermined locations in Chicago, Illinois or
Marquette. That’s accurate. That’s what the parties
agreed to. . . .
I think this is totally pertinent. This paragraph that I’ve
read, the Court has read here that has been signed by the
defendant and his lawyer and the government’s lawyer,
10 United States v. Swanberg et al. Nos. 02-1659/1836
that’s leadership. Not organizing, but it’s leadership, and
the two-point calculation for leadership this Court
believes is appropriate in this case.
(Emphasis added.)
The district court’s statement indicates reliance on both the
plea agreement stipulation and Paragraph 55 of the
Presentence Report (which contains the information from the
proffer) in enhancing Tuimala’s sentence. After describing
Paragraph 55, the court incorrectly stated: “That’s accurate.
That’s what the parties agreed to. . . . I think this is totally
pertinent.” In fact, however, the parties agreed only to the
facts as set forth in the stipulation, not as stated in Paragraph
55. The plea agreement was therefore violated when the
district court unwittingly relied upon the information from
Tuimala’s guilty-plea proffer in imposing the sentence
enhancement, and the prosecutor said nothing to correct this
error. This breach adversely “affected [Tuimala’s] substantial
rights[,]” Barnes, 278 F.3d at 646, because it caused Tuimala
to receive a more severe sentence.
The only remaining question is whether the breach
“seriously affected the fairness, integrity or public reputation
of the judicial proceedings.” Id. This court has held that
“violations of the plea agreements on the part of the
government serve not only to violate the constitutional rights
of the defendant, but directly involve the honor of the
government, public confidence in the fair administration of
justice, and the effective administration of justice in a federal
scheme of government . . . .” Id. at 648 (quoting United
States v. McQueen, 108 F.3d 64, 66 (4th Cir.1997) (quotation
marks omitted)). The breach of the plea agreement in the
present case, moreover, particularly affected the fairness of
the proceedings because Tuimala’s sentence was increased as
a direct result. We therefore conclude that plain error
occurred.

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Nos. 02-1659/1836 United States v. Swanberg et al. 11
D. Tuimala’s sentence enhancement for a leadership
role
The district court imposed a two-level sentence
enhancement, pursuant to United States Sentencing
Guidelines § 3B1.1, for Tuimala’s alleged leadership role in
the offense. “The proper standard of review to employ in
evaluating the district court’s imposition of this enhancement
is subject to some debate.” United States v. Henley, 360 F.3d
509, 516 (6th Cir. 2004). Prior to 2001, this court “reviewed
a district court’s factual findings for clear error and legal
conclusions de novo.” United States v. Solorio, 337 F.3d 580,
600 (6th Cir.2003). Then, in Buford v. United States, 532
U.S. 59, 66 (2001), the Supreme Court held that a district
court’s application of the guidelines’ section there under
consideration should be reviewed deferentially rather than de
novo “in light of the fact-bound nature of the legal decision.”
This court has not yet decided on the appropriate standard
of review of a § 3B1.1 enhancement in any post-Buford case.
See Henley, 360 F.3d at 516 (declining to decide whether the
enhancement should be reviewed deferentially or de novo
because the court would have affirmed the district court under
either standard). In the present case, we again have no need
to decide which standard of review applies because the
district court’s decision was incorrect under either standard.
This court has held that a sentence enhancement is
appropriate under § 3B1.1 where a defendant has “exerted
control over at least one individual within a criminal
organization,” but not where the defendant has “merely
exercised control over the property, assets or activities of the
enterprise.” United States v. Gort-DiDonato, 109 F.3d 318,
321 (6th Cir. 1997). In the present case, the record at most
demonstrates only that Tuimala sold drugs to multiple
individuals. He had no control over what they did with the
drugs after the purchases. This does not meet the degree of
control required by Gort-DiDonato. On remand, therefore, the
12 United States v. Swanberg et al. Nos. 02-1659/1836
district court should resentence Tuimala without applying the
leadership enhancement.
II. CONCLUSION
For all of the reasons set forth above, we AFFIRM
Swanberg’s sentence but VACATE Tuimala’s sentence and
REMAND his case for the limited purpose of resentencing
without the sentence enhancement.

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