United States of America v. Jose Ruiz Solorio (01-5602)

*The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0239P (6th Cir.)
File Name: 03a0239p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE RUIZ SOLORIO
(01-5602); RICKY MART IN
LUNA (01-5603); DELMAS
DENNIS (01-5666); MARCO
JUAREZ (01-5667),
Defendants-Appellants.
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Nos. 01-5602/
5603/5666/5667
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 99-00120—Aleta A. Trauger, District Judge.
Submitted and Argued: April 29, 2003
Decided and Filed: July 22, 2003
Before: MOORE and ROGERS, Circuit Judges; KATZ,
District Judge.*
2 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
_________________
COUNSEL
ARGUED: Robert L. Marlow, Shelbyville, Tennessee,
Michael D. Noel, Nashville, Tennessee, for Appellants. John
A. Drennan, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Robert L. Marlow, Shelbyville, Tennessee, Michael D. Noel,
Nashville, Tennessee, Thomas J. Drake, Jr., Nashville,
Tennessee, Paul J. Bruno, BRUNO, HAYMAKER &
HEROUX, Nashville, Tennessee, for Appellants. John A.
Drennan, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Robert Anderson, ASSISTANT UNITED
STATES ATTORNEY, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Delmas
Dennis, Marco Juarez, Jose Ruiz Solorio, and Ricky Martin
Luna were all arrested for conspiring to possess with the
intent to distribute cocaine in violation of 21 U.S.C. § 841, as
well as for other various drug-related crimes. The four
defendants were part of a vast drug enterprise that brought
large quantities of cocaine and marijuana into Nashville.
They were convicted by a jury of these crimes and given
sentences ranging from 210 months (Solorio) to 292 months
(Juarez).
On appeal, they together raise nine claims of error. For the
reasons that follow, we find none of their claims of error
persuasive, and so we AFFIRM the judgment of the district
court.

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1Quentin Hearn, M cMurry’s cousin, was another putative defendant
who accepted a deal with the government and testified against the
defendants at trial.
I. BACKGROUND
A. Factual Background
The defendants in this case were all part of a drug ring that
bought, transported, and sold sizeable amounts of marijuana
and cocaine. The leaders of this operation (which was based
in Nashville) were Terrell McMurry and Timothy Booker.
McMurry and Booker, as putative defendants, entered into
plea agreements with the government, and thus became the
government’s key witnesses at trial. They testified
extensively to the roles of the four defendants in the overall
conspiracy.
McMurry and Booker began distributing cocaine and
marijuana in 1994. They had two main sources of drugs. The
first were Omar Rocha Rodriguez (known as Omar Rocha)
and Adriana Rocha Espinoza (a woman who lived with
Rocha). Rocha and Espinoza lived in San Diego and sent
drugs to McMurry and Booker through Chicago. The
shipments from Rocha and Espinoza, which each consisted of
between twenty and forty kilograms of cocaine, came three
times from May 1998 to August 1999 (this being the time
period stated in the indictment). The second source of drugs
came from a source known as “Alex,” who was in Chicago.
At trial, Booker and McMurry explained that the
conspiracy operated in the following way. When the drugs
arrived in Nashville, they were delivered by a green Tahoe
truck, which Luna (who was also known as “Playboy”) would
meet. The drugs were unloaded by Luna, Juarez, McMurry,
and Quentin Hearn.1 The drugs were generally kept at the
homes of Juarez, McMurry, or Hearn. Especially large loads
4 United States v.
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Nos. 01-5602/5603/5666/5667
were stored at Solorio’s ranch. McMurry and Booker gave
the money to pay for the cocaine and marijuana to Juarez,
who gave it to Luna, who gave it to the parties owed.
1. Juarez’s Role in the Conspiracy
Juarez was employed directly by McMurry and Booker.
They paid him a salary, roughly between four and five
thousand dollars a month. Juarez helped McMurry and
Booker transport and unload cocaine. He also helped send
cash payments back to McMurry’s and Booker’s suppliers.
As the operation developed, McMurry, Booker, and Rocha
rented an apartment for Juarez in Chicago so that Juarez could
deliver drugs to McMurry’s and Booker’s customers there.
In addition to McMurry’s and Booker’s testimony, there
was considerable other evidence against Juarez. Juarez was
stopped by police in Chicago on October 30, 1998. He
consented to a search, in which the FBI discovered that the
vehicle had been retrofitted with hidden compartments of a
type that were used for transporting drugs. The FBI
intercepted phone calls between Juarez and McMurry
discussing Juarez’s plans to unload a shipment of drugs into
Hearn’s house and revealing that one of the 50-pound
shipments of marijuana was short. The FBI also intercepted
phone calls between Juarez and Booker discussing various
drug-related matters. Juarez was photographed with
McMurry and Booker visiting Rocha in San Diego and was
also seen with Rocha in Chicago several times.
More evidence against Juarez was obtained in the course of
his arrest on March 18, 1999. That morning Juarez had left
the apartment he leased at 710 Saxony Drive in a white
pickup, went to Hearn’s residence to unload the forty pounds
of marijuana that were in the truck, and was arrested while
driving away. After his arrest, the police searched his
apartment pursuant to a valid search warrant. In the
apartment, they found two 9-mm Glock handguns. The guns

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were located inside a pair of boots, which were on top of a
small black bag. Inside the bag was a variety of drug
trafficking tools: a money counter, drug ledgers, paper
money wrappers, and rubber bands. In the search of the
apartment, officers found one of Luna’s pagers. They also
found drug ledgers with the name “Cepillo” next to some
figures.
2. Luna’s Role in the Conspiracy
Luna, like Juarez, aided in the transport and delivery of
drugs, counted drug money, and transported McMurry and
Booker’s cash payments back to the drug suppliers. Luna was
not employed directly by McMurry and Booker. Instead, he
worked principally for Rocha and was seen with him in
Chicago several times.
In addition to Booker’s and McMurry’s testimony against
Luna, there was other independent evidence implicating Luna
in the conspiracy. On January 29, 1999, the Nashville police
stopped Luna. They found that his vehicle, like Juarez’s, had
been retrofitted with hidden compartments. The FBI, who
was intercepting McMurry’s conversations, overheard
McMurry and Espinoza discussing this stop. Luna was also
visually spotted by the government both with McMurry (in a
parking garage) and with Rocha and Espinoza (in the Los
Angeles Airport).
On April 15, 1999, after Juarez had been arrested, the
police searched Luna’s Nashville apartment pursuant to a
valid warrant. They found transaction receipts bearing his
name, receipts bearing Juarez’s and Espinoza’s names, and a
document indicating that a “Solorio Ruiz Jose” (presumably
the defendant, Jose Ruiz Solorio) had rented an automobile.
The police also found a drug ledger, balls of elastic bands
commonly used in drug transactions, a number of cellular
telephones, and a yellow sheet of paper with “Sepillo” written
on it. Two days later, Luna was arrested. In his possession
6 United States v.
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Nos. 01-5602/5603/5666/5667
2In a subsequent search of Rocha’s residence, officers found a wallet
with a Mexican driver’s license, a Mexican voting card, and a Mexican
birth certificate all in the name of Omar Saenz N eda. In this search,
police found several pieces of paper with “Cepillo” and “Jose Ruiz”
written on them, drug ledgers, and a personal planner with Luna’s,
Juarez’s, and Solorio’s names, and Solorio’s cell-phone numbe r.
were a Mexican passport, a visa, and a border-crossing card
all with the name Omar Saenz Neda.2 The picture in the
passport, however, was of Luna.
3. Dennis’s Role in the Conspiracy
Dennis was McMurry’s and Booker’s largest drug
customer; McMurry testified that Dennis normally received
half of each arriving drug shipment. Hearn testified that he
delivered the drugs to Dennis at his store and returned
Dennis’s payment to McMurry and Booker. In one
transaction, Dennis paid McMurry $60,000 for cocaine.
It was through a wiretap that the government discovered
that Dennis was involved with McMurry. Government agents
intercepted a conversation between Dennis and McMurry.
Though the conversation was essentially in code — Dennis
and McMurry deliberately used phrases and terms that only
those inside the conspiracy would understand — McMurry
“decoded” the conversation at trial, explaining how the
conversation really was about how Dennis owed $6,000 to
McMurry and how Dennis needed to return a number of
short-weighed kilograms of cocaine (known as “bad checks”).

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3Bo th Officer Ta ylor and Agent W illiams testified that Cepillo was
an alias for Solorio. Agent Gomez, a translator with the FBI, testified that
her analysis of the wiretapped conversations revealed that Cepillo was
actually a nickname for Solorio. Moreover, Solorio admitted at one point
that he was known as Cepillo, as discussed below. Solorio’s nam e is
often spelled “Solario” in various documents related to this case.
4Picos-Picos is sometimes known as Picos-Peraza or just Peraza.
4. Solorio’s Role in the Conspiracy
Jose Ruiz Solorio, who was known as “Cepillo,”3 was more
loosely connected to these drug transactions. While Booker
and McMurry knew the other three defendants intimately and
testified extensively against them, they had less of a
connection to Solorio. McMurry and Booker never talked to
or met Solorio before his arrest. McMurry did testify,
however, that they often stored drugs at Solorio’s ranch in the
Nashville area.
The more significant ties were between Solorio and Rocha.
The FBI intercepted several telephone conversations between
them. In one of these essentially coded conversations,
Solorio spoke of getting one thousand “tires” out in a week —
“tires” apparently being euphemisms for units of cocaine.
After the FBI intercepted another of Solorio’s and Rocha’s
conversations, Solorio was photographed with Rocha and
another man by the name of Moises Picos-Picos.4
Moises Picos-Picos, who also testified for the government
at trial, worked for Solorio. Solorio leased an apartment for
Picos-Picos and arranged for him to come over from Tijuana
to help Solorio. Picos-Picos undertook many drug-related
tasks for Solorio, such as delivering bags of cocaine and
money and keeping records of his drug transactions.
On August 17, 1999 (after the arrests of Juarez and Luna),
law enforcement officers executed an arrest warrant for
8 United States v.
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Nos. 01-5602/5603/5666/5667
5The name “Cep illo” had been found in doc uments in Ro cha’s
residence along with pap ers with the name “Jo se Ruiz” (Solorio’s first
name). “Cepillo” was listed as a client in the drug ledger found in
Juare z’s apartment. The name “Cepillo Tires” was found in ledgers in
Luna’s apartment (“tires” again often being used as a code for units of
cocaine). A receipt bearing Solorio’s real name was also found at Luna ’s
apartment.
Solorio. Solorio was asked if he was “Cepillo” and raised his
hand and nodded.5 McMurry testified that after Solorio was
arrested, Solorio approached him in jail and told him that he
had 40 kilograms of drugs buried at his Nashville ranch that
needed to be excavated.
B. The Results of the Jury Trial
The jury convicted the defendants on different counts of the
indictment. All were convicted on Count 7 of the indictment,
which alleged that the defendants had conspired to possess
with intent to distribute cocaine in the amount of 5 kilograms
or more from May 31, 1998 to August 17, 1999. While
Juarez, Luna, and Dennis were all convicted on Count 7 in the
full amount of 5 kilograms or more, Solorio was only
convicted of conspiring with respect to 500 grams or more.
Dennis was convicted only on Count 7. He was sentenced
to 240 months. Luna was convicted on Count 4 (conspiracy
to possess with intent to distribute 100 kilograms of
marijuana) as well as Count 7. Luna was sentenced to 235
months. Solorio, in addition to Count 7, was convicted on
Count 10 (possession with intent to distribute 500 grams or
more of cocaine) and Count 11 (possession with intent to
distribute 100 kilograms or more of marijuana). Solorio was
sentenced to 210 months. Juarez was convicted on Counts 2
(possession with intent to distribute 500 grams or more of
cocaine), 3 (attempt to conduct a financial transaction
affecting interstate commerce involving the proceeds of
unlawful activity), and 4 (conspiracy to possess with intent to

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distribute 100 kilograms or more of marijuana), as well as
Count 7. He was sentenced to concurrent terms, the longest
of which is 292 months.
II. ANALYSIS
The defendants raise a total of nine issues on appeal. The
defendants allege that the district court erred in holding that
the evidence was sufficient and that a new trial was not
needed, failed to exclude the testimony of government
witnesses after they violated a sequestration order, improperly
refused to dismiss a juror who knew a government witness in
the case, imposed sentences in violation of Apprendi, failed
properly to resolve contested issues of fact as required by
Federal Rule of Criminal Procedure 32, improperly enhanced
a sentence for the possession of a firearm, unacceptably failed
to reduce a sentence for a defendant’s mitigating role,
improperly enhanced a sentence for a defendant’s supervisory
role, and failed to depart downwards on a number of
discretionary issues. As we explain below, we conclude that
none of these contentions of error have merit.
A. Sufficiency of the Evidence
Luna and Solorio argue that the district court erred in
denying their Federal Rule of Criminal Procedure 29 motions
for acquittal. Ultimately, we conclude that the evidence
against them is sufficient to uphold their convictions, and so
we reject their claims. Solorio then makes the related
argument that the jury finding that he possessed with intent to
distribute 500 grams of cocaine is fundamentally inconsistent
with the indictment (which alleged that he possessed with
intent to distribute 5 kilograms of cocaine). As we consider
the facts adduced at trial not to be fatally incompatible with
the indictment, we reject this claim.
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1. Standard of Review
“This court reviews de novo a denial of a motion for
judgment of acquittal, but affirms the decision ‘if the
evidence, viewed in the light most favorable to the
government, would allow a rational trier of fact to find the
defendant guilty beyond a reasonable doubt.’” United States
v. Harrod, 168 F.3d 887, 889-90 (6th Cir.) (citation omitted),
cert. denied, 526 U.S. 1127 (1999).
2. Luna’s Insufficiency Claim
Luna alleges that the evidence against him was insufficient
because, when he was arrested, there were no drugs or large
sums of money in his possession. Nevertheless, we hold that
the evidence is clearly sufficient against him. McMurry,
Booker, and Hearn all testified extensively against Luna,
explaining that Luna transported and delivered drugs and paid
off their suppliers. Luna was photographed with Rocha
several times. State police had stopped Luna in a car outfitted
for transporting narcotics, and this incident became a topic of
conversation between McMurry and Espinoza. A search of
Juarez’s apartment revealed Luna’s cell phone. A search of
Luna’s apartment revealed drug ledgers, balls of elastic bands
commonly used in drug transactions, and a number of cellular
telephones. Finally, when Luna was arrested, he was found
with a Mexican passport, a visa, and a border-crossing card
all with the name Omar Saenz Neda. Luna’s argument that
the evidence was somehow insufficient because he did not
possess any drugs on his person at the time of his arrest is
simply unpersuasive.
3. Solorio’s Insufficiency Claim
Solorio also claims that the evidence was insufficient
against him. Solorio argues that the evidence was not
sufficient to support the jury verdict on Count 7 (the
conspiracy charge) or on Counts 10 and 11 (the possession

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charges). Solorio also argues that a fatal variance was created
between the evidence adduced at trial and the terms of the
indictment. We reject all of these claims of error.
a. Sufficiency of the Evidence With Respect to
Count 7
Solorio’s first argument is that there was not sufficient
evidence to convict him of the conspiracy to distribute
cocaine charge (Count 7). While the evidence is not quite as
overwhelming as it was in Luna’s case, the evidence against
Solorio is certainly sufficient. There is evidence that Solorio
was connected to McMurry’s and Booker’s operation.
Because Rocha was McMurry’s and Booker’s supplier,
Solorio as Rocha’s agent was part of the conspiracy. In
addition, there were far more direct ties between Solorio and
McMurry’s and Booker’s operation. McMurry explicitly
testified that his and Booker’s drugs were kept at Solorio’s
ranch. As described earlier, searches of Rocha’s, Luna’s, and
Juarez’s apartments all revealed evidence that Solorio was a
part of their combined operation. There was also extensive
testimony from Picos-Picos establishing Solorio’s
relationship with Rocha and the various drug deals he made
and authorized Picos-Picos to conduct. We hold that a
reasonable jury could well have found that Solorio was part
of the Count 7 conspiracy.
b. Sufficiency of the Evidence With Respect to
Counts 10 and 11
Solorio also claims that there is insufficient evidence to
support his conviction on Counts 10 and 11, which are
charges of possession of 500 grams or more of cocaine and
100 kilograms or more of marijuana. We hold that there is
sufficient evidence to support these charges. Picos-Picos
testified that Solorio arranged for Picos-Picos to deliver one
kilogram of cocaine. Solorio’s drug records, as Picos-Picos
testified, showed a single drug transaction involving 500
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Nos. 01-5602/5603/5666/5667
6Solo rio makes the related argument that the district court erred in
denying his Federal Rule of Criminal Procedure 33 motion for a new trial
because the verdict was against the weight of the evidence. We review
the district court’s decision on this ground for an abuse of discretion.
United States v. Frost, 125 F.3d 346 , 382 (6th C ir. 199 7), cert. denied,
525 U.S. 810 (199 8). In evaluating a Rule 33 motion based on the weight
of the evidence, unlike a sufficiency claim, “the trial judge can consider
the cred ibility of the witnesses and the weight of the evidence to insure
that there is not a miscarriage of justice. It has often been said that he/she
sits as a thirteenth juror.” United States v. A shworth, 836 F.2d 260, 266
(6th Cir. 1988) (quotation omitted).
For the reasons exp lained immediately above, the evidence against
Solo rio was certainly adequate, especially given the wide discretion given
to the district co urt judge. See id. (“Th e cou rt of appeals, however, does
not sit as a ‘thirteenth juror’ to judge the credibility of witnesses . . . .
Rather, we are limited to examining the evidence produced at trial to
determine whether the district court’s determination that the evidence
does not ‘preponderate heavily against the verdict’ is a clear and m anifest
abuse of discretion.”) (citation omitted).
pounds of marijuana and $210,500. In the context of this
case, we find this testimony sufficient to support Solorio’s
convictions on Counts 10 and 11.6
c. The Alleged Inconsistency Between the
Indictment and the Jury Verdict
Related to Solorio’s sufficiency arguments is his argument
that the evidence adduced at trial was inconsistent with the
terms of the indictment, necessitating reversal. We conclude
that this claim is without merit as well.
The jury found Solorio guilty on Count 7 of conspiring to
possess with intent to distribute 500 grams of cocaine.
Solorio seems to argue that this is inconsistent with the
indictment, because Count 7 of the indictment alleged that
Solorio (as well as the other defendants) conspired to possess
with intent to distribute 5 kilograms of cocaine. We interpret
this claim as arguing either that a variance developed between

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7The government argues that this issue was not raised in the district
court and therefore should be reviewed for plain error. The governme nt
is correct when it points out that Solorio never specifically made an
argument about an improper variance in his motion for acquittal. He did,
however, state in that motion that since the jury found that Solorio did not
conspire to distribute five kilograms, “the government failed to prove an
essential element of Count 7 against Defendant Solorio.” J.A. at 21 5. W e
hold that Solorio did adequately raise the variance issue, although we
agree that this argument was awkwardly phrased both in the district court
and on ap peal.
the indictment and the facts adduced at trial or that the
indictment was constructively amended.7
“This court reviews de novo the determination as to
whether there has been an amendment to, or variance from, an
indictment.” United States v. Smith, 320 F.3d 647, 656 (6th
Cir.) (emphasis removed), cert. denied, 123 S. Ct. 1954
(2003). There is a difference between these two terms. “A
variance [to the indictment] occurs when the charging terms
[of the indictment] are unchanged, but the evidence at trial
proves facts materially different from those alleged in the
indictment. In contrast, an amendment involves a change,
whether literal or in effect, in the terms of the indictment.”
United States v. Chilingirian, 280 F.3d 704, 711 (6th Cir.
2002) (quotations omitted). “This Circuit has held that a
variance rises to the level of a constructive amendment when
the terms of an indictment are in effect altered by the
presentation of evidence and jury instructions which so
modify essential elements of the offense charged that there is
a substantial likelihood that the defendant may have been
convicted of an offense other than that charged in the
indictment.” Id. at 712 (quotation omitted).
Although the distinction between a variance and a
constructive amendment has been called “sketchy,” we have
noted that the “consequences of each are significantly
different.” Id. “A variance will not constitute reversible error
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Nos. 01-5602/5603/5666/5667
unless ‘substantial rights’ of the defendant have been
affected,” while a constructive amendment is per se
prejudicial. Id. (citation omitted); see also United States v.
Manning, 142 F.3d 336, 339 (6th Cir. 1998) (stating that a
substantial right of the defendant is violated by a variance
“only when a defendant proves prejudice to his ability to
defend himself or to the overall fairness of the trial”).
Solorio can show neither a prejudicial variance nor a
constructive amendment. The facts adduced at trial were not
materially different from those alleged in the indictment. The
concept of variance is designed to prevent the prosecution
from convicting the defendant of a different offense, not a
lesser variation on the charged offense. See Charles Alan
Wright, 3 Federal Practice & Procedure § 516, at 25 (2d ed.
1982) (stating that “a defendant may be convicted of a lesser
offense necessarily included in the offense with which he is
charged” and noting that the principle of variance only
prevents him from “be[ing] convicted of a different offense”).
Solorio’s complaint here is merely that he was convicted of
a lesser-included offense, which is perfectly appropriate under
Federal Rule of Criminal Procedure 31. See Fed. R. Crim. P.
31(c) (stating that “[a] defendant may be found guilty of any
of the following: (1) an offense necessarily included in the
offense charged”). Solorio therefore cannot show a
prejudicial variance, because he cannot show that the
variance affected his ability to defend himself. He similarly
cannot show a constructive amendment to the indictment
because he was not “convicted of an offense other than that
charged in the indictment.” Chilingirian, 280 F.3d at 712.
We considered a case materially identical to this one in a
recent unpublished opinion. United States v. Vazquez, 49
Fed. Appx. 550, 2002 WL 31367162 (6th Cir. Oct. 18, 2002),
cert. denied, 123 S. Ct. 1331 (2003). In Vazquez, “the
indictment charged Vazquez and his co-defendants with a
cocaine conspiracy that involved at least twelve kilograms of
cocaine, which would have violated 21 U.S.C.

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§ 841(b)(1)(A).” Id. at 552 (footnote omitted). The jury,
however, “specifically found that Vazquez conspired to
distribute more than five hundred grams but less than five
kilograms of cocaine.” Id. at 551. Since § 841(b)(1)(A)
requires a conspiracy of five kilograms or more, Vazquez was
convicted of a conspiracy under § 841(b)(1)(B).
We dismissed Vazquez’s claim of a fatal variance or
constructive amendment:
Even if Vazquez can show a variance between the
indictment and the proof at trial . . . we are not persuaded
that it is substantially likely that Vazquez was convicted
of an offense other than the one charged in the
indictment. Vazquez was charged with a § 841(b)(1)(A)
cocaine conspiracy and convicted of the lesser-included
offense of a § 841(b)(1)(B) cocaine conspiracy. See Fed.
R. Crim. P. 31(c). Because the essential elements of the
former necessarily include those of the latter, we hold
that the indictment was not constructively amended and
affirm Vazquez’s conviction.
Id. at 552-53. This case involves an identical fact pattern.
The indictment charged Solorio with a conspiracy involving
more than five kilograms under § 841(b)(1)(A). While the
jury did not find Solorio had conspired with respect to five
kilograms or more (which would have established a violation
of § 841(b)(1)(A)), the jury did find that Solorio had
conspired with respect to 500 grams or more, which made out
the requirements of § 841(b)(1)(B). The jury merely
convicted Solorio of a lesser-included offense, and as a result,
his claims of prejudicial variance and constructive
amendment are meritless.
B. Sequestration Order
All four defendants raise the issue of whether the district
court erred in failing to strike the testimony of McMurry and
16 United States v.
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Nos. 01-5602/5603/5666/5667
Booker, after the court discovered that the two had conversed
during a trial recess. Assuming that there was a violation of
the relevant rule, we believe that the district court promptly
and effectively remedied the violation, rendering total
exclusion of McMurry’s and Booker’s testimony unnecessary.
As a result, we reject the defendants’ claims of error.
1. Facts Surrounding the Sequestration Order
McMurry and Booker were the key witnesses for the
government against the four defendants. McMurry testified
first, testifying on Wednesday, September 20, 2000, through
Friday, September 22, 2000. Booker did not testify until
Tuesday, September 26. On Saturday, September 23, the
government found out that Booker and McMurry had a
conversation about the case in a holding cell where they were
both confined. The conversation took place on Thursday,
September 21, during a trial break. The government brought
the issue before the district court, and a hearing was held on
this issue on Monday, September 25. Both Booker and
McMurry testified.
According to both Booker and McMurry, the conversation
was brief. Booker initiated the conversation by asking
McMurry how his testimony was going, to which McMurry
responded that the defense lawyers were “going to try to trip
[Booker] up on some dates.” J.A. at 1337 (Trial Test. of
Booker). McMurry referred to one date in particular,
“sometime in October when Carlos [Brittain] got pulled
over.” J.A. at 1348. Booker responded by saying that he did
not remember any dates and that he would just admit to not
remembering them. McMurry told Booker he was not
impressed with the attorneys involved in the case and that
defendant Dennis should have plea bargained. Booker also
testified that McMurry mentioned something about six VIP
tickets and six thousand dollars, though McMurry denied that

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8Governm ent agents intercepted a conversation between Dennis and
McM urry where the two discussed the fact that Dennis owed $6,000 to
McM urry and the fact that Dennis needed to return a number of “bad
checks.” J.A. at 785 (Trial Test. of McMurry). McM urry exp lained in
court that the $6,000 was “drug mo ney that [Dennis] owed me from the
drugs that I fronted him.” J.A. at 501 (Trial Test. of McM urry).
Apparently, Dennis attempted to rebut McM urry’s explanation of the
conversation by suggesting that the $6,000 was not for drugs, but was for
VIP tickets to a concert. Dennis claims that McMurry’s statement to
Bo oker abo ut the V IP tickets and the $6 ,000 may have be en M cM urry’s
attempt to persuade Booker to testify that the $6,000 was owed for drugs
and not VIP tickets, thereby corroborating McM urry’s story and
undermining Dennis’s defense.
he said anything about the tickets or the money.8 Booker
plainly stated that nothing that McMurry had said affected his
testimony.
The district court found that there was a violation of
Federal Rule of Evidence 615. However, the district court
found that there was no evidence that the government had
arranged (or even known about) the violation of Rule 615,
and no evidence that any of the defendants had been
prejudiced by this violation. The district court took three
steps to remedy the violation. It foreclosed the government
from asking Booker (who had not yet testified) about the stop
of Carlos Brittain, the VIP tickets, or the $6,000. The district
court allowed the parties to explore the sequestration violation
fully in cross-examination, which they did. The district court
also instructed the jury that they could consider the Rule 615
violation in making credibility determinations. Defense
counsel also repeatedly pointed out the violation in closing
argument, encouraging the jury to devalue Booker’s and
McMurry’s testimony.
On appeal, all the defendants argue that the district court’s
remedies for the sequestration violation were insufficient,
claiming that Booker should have been disqualified from
18 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
testifying and that the portion of McMurry’s testimony that
was subsequent to the violation should have been struck.
2. Sequestration Analysis
We review the district court’s decision regarding
sequestration of witnesses for an abuse of discretion. United
States v. Gibson, 675 F.2d 825, 835 (6th Cir.), cert. denied,
459 U.S. 972 (1982).
Federal Rule of Evidence 615 states that “[a]t the request of
a party the court shall order witnesses excluded so that they
cannot hear the testimony of other witnesses.” Fed. R. Evid.
615. This rule codifies, to an extent, the sequestration powers
of the trial judge at common law; we have stated that its
purpose is to prevent “the influencing of a witness’ testimony
by another witness.” United States v. Rugiero, 20 F.3d 1387,
1392 (6th Cir.) (citing Gibson, 675 F.2d at 835), cert. denied,
513 U.S. 878 (1994). However, while the purpose of the rule
is apparent; its purview is not. Circuits have split on the
question of whether “the scope of Rule 615 extends beyond
the courtroom to permit the court to preclude out-of-court
communication between witnesses about the case during
trial.” Charles Alan Wright & Victor James Gold, 29 Federal
Practice & Procedure § 6243, at 61 (1997); compare United
States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993)
(stating that Rule 615 authorizes a trial court to “‘order
witnesses excluded’ only from the courtroom proper”)
(citation omitted), cert. denied, 512 U.S. 1223 (1994), with
United States v. Prichard, 781 F.2d 179, 183 (10th Cir. 1986)
(stating that a “sequestration order pursuant to Fed. R. Evid.
615 requires not only that witnesses be excluded from the
courtroom, but that witnesses also refrain from discussing
their testimony outside the courtroom”). This court once
suggested in dicta that the rule’s ambit extends beyond the
courtroom. See Rugiero, 20 F.3d at 1394 (“[W]e think it
unnecessary, once the rule is invoked, that either party need
ask the court to instruct each witness not to discuss his

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9Of course, even if Rule 6 15 o nly applies to in-court communications
between witnesses, trial courts still would “retain[] discretion to preclude
such out-of-court communications between witnesses as a function of the
court’s general powers to manage the conduct of the trial.” Charles Alan
W right & Victor James Gold, 29 Federal Practice & Proced ure § 6243,
at 62 (1997). Such orders a re “generally thought to be a standard
concomitant of basic sequestration fare, serving to fortify the protections
offered by Rule 615,” United States v. Sepulveda, 15 F.3d 1161, 1176 (1st
Cir. 199 3), cert. denied, 512 U.S. 1223 (1994), and we mean to cast no
aspersions on their use.
In the case at bar, no independent seque stration order wa s issued, so
our only concern here is the protections afforded by Rule 615.
testimony with another witness yet to testify.”). This court in
Rugiero did not, however, resolve the issue; we assumed that
there was a violation of the rule but concluded that in any
event the violation was not prejudicial. Id. (“But even if we
count this as a violation . . . we find no prejudicial error in the
district court’s rulings.”).
As in Rugiero, we feel no need to decide the delicate issue
of whether Rule 615 extends beyond the courtroom.
Assuming that Rule 615 extends to cover this situation and
that it was violated by the witnesses in this case, we hold that
district court’s remedy to the alleged violation was
appropriately fashioned and well within her discretion.9 It is
well settled in this circuit that a “‘violation of an order
directing that witnesses be separated does not automatically
bar a witness’ testimony.’” Id. (citation omitted). Instead:
If a witness disobeys the order of withdrawal, while he
may be proceeded against for contempt and his testimony
is open to comment to the jury by reason of his conduct,
he is not thereby disqualified, and the weight of authority
is that he cannot be excluded on that ground merely,
although the right to exclude under particular
circumstances may be supported as within the sound
discretion of the trial court.
20 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
10Given the rare circumstances under which this remedy is justified
as well as the district court’s discretion not to impose it, the authors of
Federal Practice and Procedure “have found no federal appeals court
decision holding that the failure to disqualify a witness after violation of
an exclusion order is an abuse of discretion.” Charles A lan W right &
Victor James Gold, 29 Federal Practice & Procedure § 6246, at 96 n.22
(1997).
Gibson, 675 F.2d at 836 (quoting Holder v. United States,
150 U.S. 91, 912 (1893)); see also Charles Alan Wright &
Victor James Gold, 29 Federal Practice & Procedure § 6246,
at 93-95 (1997) (explaining that the district judge has many
options when faced with a violation of Rule 615, including
holding the witness in contempt, holding the counsel who is
responsible for the violation in contempt, allowing the
witness to be cross-examined, explaining the significance of
the violation to the jury, declaring a mistrial, striking the
witness’s testimony in part, and disqualifying the witness
from testifying entirely). As Gibson notes, we only permit
exclusion in “particular circumstances,” such as where a
“witness has remained in court with the ‘consent, connivance,
procurement, or knowledge’ of the party seeking his
testimony.” Gibson, 675 F.2d at 836 (citation omitted)
(holding it was not an abuse of discretion for the district court
to bar a party’s witness from testifying after the witness had
remained in open court with the party’s knowledge in
violation of a sequestration order). Exclusion is considered
a very severe remedy. See John W. Strong, McCormick on
Evidence § 50, at 210 (5th ed. 1999) (“The courts are
markedly reluctant to resort to the drastic remedy of
disqualifying the witness.”); Charles Alan Wright & Victor
James Gold, 29 Federal Practice & Procedure § 6246, at 95
(1997) (calling it a “drastic remed[y] that impose[s]
significant hardship on a party that loses the testimony of a
key witness”).10 Moreover, in order for a party to receive a
new trial based on a district court’s failure to exclude
testimony, we have also held that the party must show that the
error prejudiced its right to a fair trial. Rugiero, 20 F.3d at

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1394 (holding that it was not an abuse of discretion for a
district court to permit a witness’s testimony even after the
witness had violated the sequestration order with the
knowledge of the witness’s party because the error was not
prejudicial).
We conclude that the defendants have not shown that
exclusion was necessary in this case. First, the defendants do
not even argue that the prosecution had any knowledge of the
clandestine meeting between McMurry and Booker. Our
decision in Gibson suggests that exclusion of a witness is
only justified when the party seeking the testimony
knowingly violates the sequestration order. Both Gibson and
Rugiero involved parties that knew of their witness’s
sequestration violation at the time it took place. Rugiero, in
fact, upheld a district court’s order not to exclude the witness
because of a lack of prejudice, though it called the issue “a
close one.” Id. Here, none of the defendants even argue that
the prosecution knew about the violation of the sequestration
order at the time of its occurrence.
Even if exclusion could be an appropriate remedy in a case
like this one — where the sequestration rule was violated
without the knowledge of the party seeking to use the
testimony of the sequestered witness — the measures taken
by the district judge eliminated any prejudice the defendants
could have possibly faced as a result of the violation.
McMurry made two statements to Booker that potentially
could have influenced his testimony. First, McMurry
mentioned that he was quizzed about dates. Only one date in
particular was mentioned and that was the date that Carlos
Brittain was stopped by police. In response, the district court
prevented the government from asking Booker about
22 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
11Juarez argues that even McM urry’s and Booker’s general
discussion about dates prejudiced his defense. Juarez argues that
McM urry lied when he stated o n the stand that there were coc aine deals
after May of 1998, and claims that McM urry discussed dates with Booker
to get him to corroborate McMurry’s lie.
Juare z’s claim is pure speculation. Not only is there no evidence that
McM urry lied on the stand, there also is no eviden ce that McM urry and
Booker discussed the date when the cocaine deals ceased or referred to the
May 1998 d ate. McM urry told Booker that the defendants’ lawyers were
going to try to trip Booker up on dates; Booker then stated that he did not
remember any dates and that he would just admit to failing to remember
them. Other than discussing the date of the stop of Carlos Brittain, there
was no discussion of particular dates or eve nts that occurred o n those
dates. Juarez’s claim that he was prejudiced by the discussion of dates is
therefore not at all persuasive.
Brittain’s stop.11 Second, McMurry may have stated
something about VIP tickets and six thousand dollars. In
response, the district court prevented the government from
inquiring into this subject with Booker. These limitations
prevented Booker’s testimony from being tainted by Booker’s
and McMurry’s conversation. Additionally, the district court
gave a specific instruction to the jury regarding the violation
of the Rule, and allowed the defense counsel to raise the
violation in their cross-examinations of Booker and in their
closing arguments. These sensible and well-tailored steps not
only prevented the defendants from being prejudiced, but also
did not unduly interfere with the government’s case. As a
result of these careful measures, the defendants are now
unable to show that the district court’s failure to exclude the
witnesses was prejudicial. See Rugiero, 20 F.3d at 1394
(requiring prejudice before exclusion could be ordered);
Charles Alan Wright & Victor James Gold, 29 Federal
Practice & Procedure § 6246, at 91-92 (1997) (stating that
“[v]iolation of an exclusion order is prejudicial if the witness
who violated that order subsequently gave important
testimony that was influenced by the testimony of other
witnesses”). There is no evidence that any significant aspect
of Booker’s testimony was influenced by McMurry’s

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previous testimony. We therefore dismiss this contention of
error.
C. Juror Misconduct
Luna and Solorio raise the issue of whether the district
court erred in not granting a new trial based on the fact that a
juror had not explained during voir dire his relationship with
one of the government’s witnesses. Because Luna and
Solorio have not shown deliberate concealment or actual bias
on the part of the juror, their claim fails.
1. Factual Background
On September 22, 2000, during the fourth day of trial, juror
James Fox submitted a note to the judge. The note explained
that Fox had worked with government witness Donna Webber
at Opryland. Fox was called into court. He stated that he
worked with Webber at Opryland from 1982 to 1989, in food
service. Initially, the district judge believed that Fox should
be disqualified, but the government suggested that Fox could
still be a fair juror. The court then interrogated Fox on the
nature of his relationship with Webber. Fox stated that they
were merely coworkers and not friends, never socializing with
each other outside of work. Fox had no opinion as to
Webber’s truthfulness and stated that his previous
relationship with her would not affect his evaluation of her
testimony or make him more or less likely to believe the
government’s representation of the facts.
Counsel for Juarez objected, stating that had he known
about the relationship between Fox and Webber, he would
have exercised his peremptories differently. Counsel for
Solorio and Luna also objected.
24 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
12Some circuits have held that a showing of deliberate concealment
is necessary for relief under McDonough. See Fitzgerald v. Greene, 150
F.3d 357 , 364 n.3 (4th Cir.) (listing cases), cert. den ied, 525 U.S. 956
(1998). As Fitzgerald reports, however, we rejected that position in
Zerka, when we held that “McDonough doe s not entirely foreclose a p arty
from seeking a new trial on the basis of a prospective juror’s honest,
though mistaken response.” Zerka v. Green, 49 F .3d 1 181 , 118 6 n.7 (6th
2. Legal Analysis
“‘[A] district court’s determination on a motion for either
a new trial or relief from judgment because a juror failed to
fully disclose information during voir dire is reversible only
for either an abuse of discretion . . . or a clear error of law in
the exercise of this discretion.’” Zerka v. Green, 49 F.3d
1181, 1184 (6th Cir. 1995) (citation omitted).
There are two ways in which a party seeking a new trial
based on a juror’s concealment of information can obtain a
new trial. First, if a juror deliberately conceals material
information on voir dire, the party seeking a new trial can
obtain relief by showing that the juror could have been
challenged for cause. See Zerka, 49 F.3d at 1185 (“‘We hold
that to obtain a new trial in such a situation, a party must first
demonstrate that a juror failed to answer honestly a material
question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge
for cause.’”) (quoting McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 555-56 (1984)) (emphases
removed). In such a case, “bias may [but need not] be
inferred.” Zerka, 49 F.3d at 1186 (emphasis removed).
It is possible, however, that a juror could have concealed
information in a non-deliberate fashion, through an “honest,
though mistaken, response.” Id. at 1186 n.7. If information
is not deliberately concealed, bias may not be inferred.
Instead, “the movant must show actual bias” in order to
obtain a new trial. Id. at 1186 (emphasis removed).12

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Cir. 1995).
13The defendants’ argum ent that they may have exe rcised their
peremptory challenges against Fox if they had known about his
connection with Webbe r is unavailing. A showing that the juror
deliberately concealed information and could have been challenged for
cause (or, alternatively, that the juror was actually biased) must be made.
See Zerka, 49 F.3d at 1185 (“‘[I]t ill serves the important end o f finality
to wipe the slate clean to recreate the peremptory challenge proc ess
because counsel lacked an item of information which objectively he
should have obtained from a juror on voir dire exam ination.’”) (emp hasis
removed) (quoting McDonough Power Equip., Inc. v. Greenwood, 464
U.S. 548, 555 (1984)).
Luna and Solorio have not shown that they are entitled to
relief under either of these prongs. First, there has been no
showing of deliberate concealment. We find it eminently
plausible that James Fox only remembered having met Donna
Webber when she appeared on the stand and began testifying.
The defendants have pointed to nothing (such as one of Fox’s
answers to a question asked in voir dire) that contradicts this
point, which is also supported by the fact that Fox went
directly to the judge after hearing Webber’s testimony.
Second, there has been no showing that Fox was actually
biased. Fox was repeatedly asked whether his relationship
with Webber would have any effect on his perception of her
testimony. He repeatedly and unambiguously answered that
it would not. We find this conclusion particularly reasonable
in light of the fact that Fox and Webber’s relationship was
limited in scope and had ended over a decade before the trial
commenced.13
D. Apprendi Violations
Juarez, Luna, and Solorio claim that the district judge used,
for sentencing purposes, a drug quantity not found by the
jury, thereby violating principles laid out in the Supreme
26 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). As we conclude that their sentences were all within
the prescribed statutory maximums, however, we reject their
challenges.
Count 7 charged Juarez, Luna, and Solorio with conspiring
to possess with intent to distribute five kilograms or more of
cocaine. The jury found Juarez and Luna guilty under Count
7 with a quantity of cocaine that was five kilograms or more.
The jury found Solorio guilty under Count 7, but found that
the cocaine involved was less than five kilograms, but was
500 grams or more. Juarez and Luna were sentenced pursuant
to 21 U.S.C. § 841(b)(1)(A), which applies to convictions
involving quantities of cocaine of five kilograms or more and
provides a statutory sentencing range of ten years to life in
prison. Juarez received a sentence of 292 months, and Luna
received a sentence of 235 months. Solorio was sentenced
pursuant to 21 U.S.C. § 841(b)(1)(B), which applies to
convictions involving cocaine quantities of 500 grams or
more and provides a statutory range of five to forty years of
imprisonment. Solorio received a sentence of 210 months.
The defendants allege that Apprendi was violated by the
district court when, in determining base offense levels under
the Guidelines, it held the defendants responsible for a higher
quantity of drugs than determined by the jury. The district
judge determined Juarez and Luna’s base levels after finding
150 kilograms of cocaine. The district judge determined
Solorio’s base level after finding forty-three kilograms of
cocaine.
The defendants’ Apprendi claims have no merit. The mere
fact that the district judge computed the defendants’ sentences
under the Guidelines using a different quantity of drugs than
the jury found is irrelevant under Apprendi as long as the
resultant sentence is still below the prescribed statutory
maximum for the quantity of drugs actually found by the jury.
See United States v. Lawrence, 308 F.3d 623, 634 (6th Cir.

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14The facts surro unding Solorio’s conviction are slightly different
than the facts surrounding Juarez’s and L una’s. In Solorio’s case, the jury
found that Solo rio had conspired to possess with intent to distribute 500
grams or more, but did not find that Solorio had conspired with resp ect to
5 kilograms or more of cocaine. The district judge, however, determined
Solorio’s sentence under the Guidelines using 43 kilograms, which
according to Solorio, contravenes the jury’s “finding” that less than five
kilograms were involved. This, however, does not change our Apprendi
analysis, for it does not change the fact that Solorio’s sentence was within
the statutory range under 21 U.S.C. § 8 41(b)(1)(B), app licable to
defendants that conspire to possess with intent to distribute 500 grams or
more of cocaine.
Any appearance of inconsistency between the district judge’s and the
jury’s findings is obviated when one considers the differing standards of
proof in the two contexts. It is entirely plausible that a district judge
could find one drug quantity made out by a preponderance of the evidence
even though the jury found a lesser quantity proved beyond a reasonable
doubt. See Un ited States v. W atts, 519 U.S. 148 , 157 (1997 ) (holding
“that a jury’s verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so long as that
2002) (“Apprendi by its terms applies only where the finding
‘increases the penalty for a crime beyond the prescribed
statutory maximum,’ and we have squarely held that
Apprendi does not apply to the Guidelines.”) (citation
omitted); United States v. Garcia, 252 F.3d 838, 843 (6th Cir.
2001) (“Apprendi does not purport to apply to penalties in
excess of any particular range or based on any particular
offense level under the Sentencing Guidelines.”). Because
Juarez’s and Luna’s sentences were below the life-sentence
ceiling of 21 U.S.C. § 841(b)(1)(A) and because the jury
found that Juarez and Luna had both conspired to possess
with intent to distribute more than five kilograms as required
by 21 U.S.C. § 841(b)(1)(A), their Apprendi claims fail.
Similarly, because Solorio’s sentence was within the statutory
range of five to forty years under 21 U.S.C. § 841(b)(1)(B)
and because the jury found that Solorio conspired to possess
with intent to distribute 500 grams of cocaine or more as was
necessary for a conviction under 21 U.S.C. § 841(b)(1)(B),
his Apprendi claim also fails.14
28 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
conduct has been proved b y a preponderance of the evidence”).
15The former rule, literally read, required courts to “rule on any
unresolved objections to the presentence report.” See Fed. R. Crim. P.
32(c)(1) (2001) (emp hasis added). According to the Advisory
Committee, the text of the rule left it unclear “whether that provision
should be read literally to mean every objection that might have been
made to the report or only on those objections that might in some way
actually affect the sentence.” Fed. R. Crim. P. 32 , adviso ry com mittee’s
note (2002). The broader reading of the rule, the committee feared,
“might place an unreasonable burden on the court without providing any
real benefit to the sentencing process.” Id. To am eliorate this concern,
the rule was revised to “narrow[] the requirement for court findings to
those instances when the objection addresses a ‘controverted matter.’” Id.
W e, however, had not adopted the broad view of the rule tha t the rule
has been amended to prevent. Even before the rule change, we ha d held
that a district court’s failure to address a co ntroverted matter under Rule
32(c)(1) did not warrant reversal as long as the controverted m atter did
not affect the d efendant’s sentence. See United States v. P arrott, 148 F.3d
629, 634 (6th Cir. 1998) (explaining that such errors must be considered
harmless under Fed. R. Crim. P. 52(a)). We had also held that the
defendant had a duty to controvert expressly a matter in the district court
before Rule 3 2 would ap ply. See U nited States v. H urst, 228 F.3d 751,
760 (6th Cir. 2000) (holding that because the defendant “did not exp ressly
call [these matters] to the court’s attention during the sentencing hearing,
it can hardly be said that these matters were sufficiently ‘controverted’ to
trigger the sentencing court’s fact-finding duty under Rule 32(c)(1)”).
E. Rule 32 Violation
In conjunction with his Apprendi claim, Luna argues that
even if he was not sentenced in violation of Apprendi, the
district court erred to failing to make drug quantity findings
as required by former Federal Rule of Criminal Procedure
32(c)(1), now Rule 32(i)(3)(B). The rule now states that “for
any disputed portion of the presentence report or other
controverted matter” that arises at 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)(B).15 We explained the former

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16W e cannot help but noting tha t Luna’s claim also fails because it
was no t prop erly raised . As we held in the Hurst case (and as the recent
amendment to Rule 32 was meant to insure), a criminal defendant has a
duty to tell the district judge that matters are controverted. Luna never
raised this matter in front of the district judge. Luna’s counsel was asked,
“Are there any other issues in dispute, Mr. Drake, that I didn’t already
rule on?” He answered, “No, your Honor.” J.A. at 2379.
version of the rule as requiring that “a court may not merely
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).
Luna claims that the district judge did not make a
determination, for sentencing purposes, of the quantity of
drugs for which Luna was responsible. This claim is
meritless. At Luna’s sentencing hearing, the district judge
stated that the government was “maintaining that . . . the
conspiracy was between 200 and 400 kilograms.” J.A. at
2378. The district judge determined that once the drug
quantity reached 150 kilograms (which it did in this case), the
total offense would be 38, because “[t]hat’s the highest it can
be.” J.A. at 2378. The district court correctly found that a
further quantity determination was unnecessary because the
base offense level “would be the same whether it’s 150
kilograms or 900 kilograms or whatever.” J.A. at 2378; see
also United States Sentencing Commission Guidelines
Manual (“U.S.S.G.”) § 2D1.1(C)(1), at 112 (2001) (reporting
that for “150 KG or more of Cocaine” the base offense level
is 38). The district court therefore properly resolved all
material factual disputes. Luna’s contention to the contrary
is meritless.16
30 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
F. Firearm Enhancement
Next we address Juarez’s claim that the district court erred
in increasing his base offense level by two levels pursuant to
U.S.S.G. § 2D1.1(b)(1) for possessing a firearm.
1. Relevant Factual Development
Early in the morning of March 18, 1999, Juarez drove away
from his apartment, located at 710 Saxony Drive, in a white
pickup truck. Inside of the pickup was forty pounds of
marijuana. Juarez helped Hearn to unload the marijuana at
Hearn’s residence. Juarez was stopped and arrested while he
was leaving. Subsequent to his arrest, the police searched
Juarez’s apartment pursuant to a valid search warrant. In the
apartment, they found two 9-mm Glock handguns. The guns
were located at the bottom of a pair of boots, which were on
top of a little black bag. Inside the bag were a variety of drug
trafficking tools: a money counter, drug ledgers, paper
money wrappers, and rubber bands. Boxes for the firearms
were later found at Luna’s house.
At the time of Juarez’s arrest, his apartment was in disarray.
The food in the refrigerator was rotten, and the electricity was
turned off. Juarez claims that he was not living in the
apartment at the time of the arrest in March but admits that he
and his wife had lived there the previous summer and that his
name was on the lease.
2. Legal Analysis
“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.” United States v.
Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002), cert. denied,
123 S. Ct. 1005 (2003). Enhancement analysis under
§ 2D1.1(b)(1) has two parts. First, the government has the
initial burden of showing “by a preponderance of the evidence

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that the defendant possessed the firearm” for purposes of
§ 2D1.1(b)(1). United States v. Miggins, 302 F.3d 384, 390-
91 (6th Cir. 2002), cert. denied, 123 S. Ct. 712, 909, 1772
(2002-03). Possession may be actual or constructive. “To
establish constructive possession, the government must show
that the defendant had ownership, dominion, or control over
the [firearm] or dominion over the premises where the
[firearm] is located.” Id. (quotations omitted). “[T]he burden
[then] shifts to the defendant to demonstrate that it was
clearly improbable that the weapon was connected to the
offense.” Id. Only if the defendant can make this showing
does the enhancement not apply.
The government met its burden of showing constructive
possession. Juarez leased the apartment where the guns were
found and had left them in the apartment on the morning of
March 18, 1999, the morning he was arrested. It therefore
falls to Juarez to prove that it was clearly improbable that the
weapon was connected to the offense. Juarez has not shown
this to be the case. The firearms, two 9-mm handguns, are
weapons “often used in drug trafficking.” United States v.
Jernigan, Nos. 01-2121/2304, 2003 WL 463483, at *4 (6th
Cir. Feb. 18, 2003). Moreover, the firearms were found in a
pair of boots on top of a bag full of other objects related to
drug trafficking, including a money counter, drug ledgers,
paper money wrappers, and rubber bands. When Juarez was
arrested on March 18, 1999, he had just smuggled forty
pounds of marijuana, apparently from the apartment. The
district court found “evidence of drug activity in that
apartment both before and after the guns were brought there.”
J.A. at 2454. Juarez has not therefore shown that it was
clearly improbable that the weapon was connected to the
offense. See Keszthelyi, 308 F.3d at 579 (affirming the
enhancement of a defendant’s sentence when drugs were
found in the residence and firearms were found in the
defendant’s bedroom, including a shotgun found in a closet
containing cash from the drug transactions); United States v.
Hill, 79 F.3d 1477, 1486 (6th Cir.), cert. denied, 519 U.S. 858
32 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
(1996) (affirming the enhancement of a defendant’s sentence
when the guns were found in a “residence to which
[defendant] had full access and where drugs were found”).
Juarez’s argument that Luna was the one who owed the guns
is irrelevant. See United States v. Saikaly, 207 F.3d 363, 368
(6th Cir. 2000) (“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.”). The district
court did not clearly err in applying this enhancement.
G. Supervisory Role Increase
We next turn to Solorio’s claim that the district court erred
in increasing his base offense level by three points for his
leadership role in the drug conspiracy. We conclude that the
district court did not err in making this determination, and
therefore uphold the supervisory role increase.
We note at the outset that it is unclear what standard of
review we employ with regard to a district court’s
enhancement decision under § 3B1.1. A few years ago it was
clear that we reviewed a district court’s factual findings for
clear error and legal conclusions de novo. See, e.g., United
States v. Taylor, 248 F.3d 506, 515 (6th Cir.), cert. denied,
534 U.S. 981 (2001). The Supreme Court’s decision in
Buford v. United States, 532 U.S. 59 (2001), however, has
suggested that deference may be appropriate when we review
a district court’s application of the Guidelines, especially
when it involves fact-bound determinations, issues that
district courts may have comparatively greater expertise in
addressing, or situations in which there will be limited value
to uniform court of appeals precedent. In United States v.
Dupree, 323 F.3d 480 (6th Cir. 2003), this court noted that
the impact of Buford on supervisory enhancements had not
been resolved, stating that “standard of review for
enhancements under § 3B1.1 is now open to question.” Id. at

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17After looking closely at Dupree, we are of the opinion that the
Dupree court did not resolve the Buford issue. The Dupree court noted
that we had (in an unpublished opinion) suggested that Buford may mean
that § 3B1.1 enhancements should be reviewed under a more deferential
standard of review. The Dupree court did no t resolve this conflict, but
concluded by stating that “[g]iven this court’s recent reference to a more
deferential standard of review, we uphold the enhancement based on the
district court’s findings.” United States v. Dupree, 323 F.3d 480 , 494 (6th
Cir. 2003).
Although this language could be taken to read that the Buford
deferential standard of review is now the law for § 3B 1.1 applications, we
believe that the Dupree court did not decide this issue. The court never
stated that Buford either did or did not apply to this factual situation, and
Dupree contains no legal analysis of the issue. Under these circumstances
we do not believe that we have taken a clear p osition on the applicability
of Buford to review of § 3 B1.1 enhance ments.
494. The Dupree court apparently did not resolve this thorny
question.17
We do not need to resolve the Buford question here, for we
would affirm the district court’s application of the
enhancement regardless of the standard of review. To begin
the analysis, Guideline § 3B1.1(b) provides that a court
should increase a defendant’s base offense level by three
levels, “[i]f the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive.” See
U.S.S.G. § 3B1.1(b) (2001). The government bears the
burden of proving that the enhancement applies. Dupree, 323
F.3d at 491.
In considering whether a defendant was a manager or
supervisor, we consider such factors as “‘the defendant’s
exercise of decision-making authority, any recruitment of
accomplices, the claimed right to a larger share of the fruits of
the crime, the degree of participation in planning the offense,
and the degree of control the defendant exercised over
others.’” Id. Under this standard, we believe that Solorio
34 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
should be considered a supervisor. As the government notes,
there is uncontroverted evidence that Solorio recruited Moises
Picos-Picos as an accomplice and exercised control over him.
Solorio arranged for Picos-Picos to come from Tijuana to
help Solorio and leased an apartment for him. In return,
Picos-Picos worked for Solorio, delivering bags of cocaine
and money, and keeping records of drug transactions for
Solorio. Solorio planned and directed all of Picos-Picos’s
drug activities. This is sufficient to establish that Solorio was
a supervisor within the meaning of the Guideline. See
Dupree, 323 F.3d at 494 (upholding the enhancement for a
robber who supplied the gun, provided information about the
victimized store and armored truck service, and moved
surveillance cameras).
Solorio’s only argument against the enhancement is that the
“Picos-Peraza matter was separate from any dealing with
Omar Rocha and the conspirators related to Mr. Rocha.”
Solorio Br. at 24. Solorio therefore argues that an
enhancement under § 3B1.1(b) was inappropriate because it
requires a showing that the enterprise had “five or more
participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(b). Solorio argues, in effect, that the jury’s verdict
holding that he conspired only with respect to 500 grams of
cocaine proves that he did not belong to the larger conspiracy.
It supposedly demonstrates that the jury believed that there
was a subconspiracy between himself and Picos-Picos. This
conspiracy, Solorio alleges, is not “extensive” within the
meaning of the Guideline and does not involve five people —
thereby preventing Solorio from receiving the enhancement.
We do not find this argument persuasive. The district court
at sentencing explicitly found that Solorio was part of the
larger conspiracy. Even if the jury had found that Solorio was
only part of a conspiracy between himself and Picos-Picos,
the differences in the standards of proof at the guilt and
sentencing phases resolve any seeming inconsistency. As a
result, even if the jury verdict were construed as finding that

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Nos. 01-5602/5603/5666/5667 United States v.
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35
Solorio did not belong to the larger conspiracy beyond a
reasonable doubt, the district judge still could have found by
a preponderance that Solorio did belong to the larger
conspiracy. See United States v. Watts, 519 U.S. 148, 157
(1997) (explaining “that a jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence”). We
therefore affirm the district court’s decision to apply the
supervisory enhancement.
H. Mitigating Role Reduction
Solorio claims that the district court erred in denying him
a mitigating-role reduction pursuant to U.S.S.G. § 3B1.2 for
having a small role in the conspiracy. This claim is easily
resolved against Solorio.
“Whether a defendant is entitled to a downward
[adjustment] under § 3B1.2 depends heavily on factual
determinations, which we review only for clear error.”
United States v. Campbell, 279 F.3d 392, 396 (6th Cir. 2002).
Solorio has the burden of proving, by a preponderance of the
evidence, that he is entitled to the reduction. United States v.
Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002). Under
§ 3B1.2, a defendant can receive a four-level reduction for
being a minimal participant or a two-level reduction for being
a minor participant. “A minimal participant is one who is
‘plainly among the least culpable of those involved in the
conduct of a group,’ and a minor participant is one who ‘is
less culpable than most other participants, but whose role
could not be described as minimal.’” Id. (quoting U.S.S.G.
§ 3B1.2, cmt. nn. 1, 3).
Solorio here was not less culpable than most of the other
participants in the conspiracy. All the reasons that supported
the district court’s finding that Solorio was a supervisor
justify the denial of Solorio’s request for a mitigating-role
36 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
reduction. There is no doubt that Solorio was intimately
connected with the drug conspiracy. His own records indicate
that he distributed extensive amounts of cocaine and
marijuana. To the extent that Solorio did not distribute the
drugs himself, he was directing his associate Picos-Picos to
do so in his stead. Picos-Picos delivered large quantities of
drugs for Solorio and received cash payments for him as well.
The control he exerted over Picos-Picos clearly reflects that
Solorio was no minor participant in this conspiracy. We can
see no error in the district court’s denial of the mitigating-role
reduction.
I. Downward Departure
We now turn to the defendants’ last claim of error. Juarez
and Solorio both argue that the district court erred by refusing
to depart downward from their sentences under the
Guidelines. Juarez argues that he should have been given a
downward departure on the basis of harsh conditions of
confinement. Solorio argues he should have been given a
downward departure based on his status as a deportable
person.
We have held that “a district court’s discretionary refusal to
depart downward is generally not appealable, unless the
district court mistakenly believed it did not have legal
authority to depart downward.” United States v. Pruitt, 156
F.3d 638, 650 (6th Cir. 1998), cert. denied, 525 U.S. 1091
(1999). The defendant has the burden to show that the district
court believed it lacked authority to depart downward. See
United States v. Cook, 238 F.3d 786, 791 (6th Cir.) (stating
that “where explicit mention is not made of the court’s power
to depart downwards, ‘it should be assumed that the court in
the exercise of its discretion found downward departure
unwarranted’”) (citation omitted), cert. denied, 534 U.S. 876
(2001).

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Nos. 01-5602/5603/5666/5667 United States v.
Solorio et al.
37
In both Juarez’s and Solorio’s cases, the district judge
stated that she did not find a departure to be authorized, but
that even if it were, she would exercise her discretion not to
depart. It appears that we have never squarely addressed in a
published opinion whether a district judge’s refusal to grant
a departure is reviewable when it is clear both that the judge
believes that she has no authority to depart and that she would
not depart even if she had the authority — although this
phrasing seems to be a common practice in district courts.
See United States v. Hill, No. 89-5952/5954/5957, 1991 WL
63621, at *3 (6th Cir. Apr. 23, 1991) (holding unappealable
a refusal to depart when the judge made an apparently
ambiguous remark indicating that he would not depart even
if he were authorized to do so); see also United States v.
Norfleet, No. 98-1311, 1999 WL 1281718, at *2-*3 (6th Cir.
Dec. 28, 1999), cert. denied, 529 U.S. 1135 (2000); United
States v. Coleman, No. 98-1861, 2000 WL 1872015, at *1
(6th Cir. Dec. 14, 2000).
If there was any doubt about the issue, we dispel it today by
holding the district judge’s refusal to depart here to be
unreviewable. This accords with the practice of the federal
circuits that have considered the question. United States v.
DeLeon, 187 F.3d 60, 69 (1st Cir.), cert. denied, 528 U.S.
1030 (1999); United States v. Williams, 898 F.2d 1400, 1403
(9th Cir. 1990); see also Charles Alan Wright et al., 15B
Federal Practice & Procedure § 3918.8, at 585 (2d ed. 1992)
(“If the district court both concludes that there is no authority
to make a downward departure and that in any event there is
no basis for making a departure, the alternative discretionary
refusal to depart has been held sufficient to support the
sentence and to defeat review.”). Given the “strong
presumption that a district court’s denial of a downward
departure is based on an exercise of discretion,” Cook, 238
F.3d at 791, and the useless formality of a remand to a judge
who has already stated that she would not exercise her
discretion to depart, we conclude that the decision not to
38 United States v.
Solorio et al.
Nos. 01-5602/5603/5666/5667
depart in this case is unreviewable. We accordingly dismiss
Juarez’s and Solorio’s allegations of error.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
decision in all respects.

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