*1 rely can on to ensure that will evaluate driving FHWA Parker’s skills based upon capabilities. his individual granting a waiver to someone with multi- equal would achieve an ple disabilities REVERSED and REMANDED. safety than if the waiver greater level Rauenhorst, granted. was not See (“[Sjpecific ground-
at 723 waivers must be standards.”). Al- specific
ed on test or
though probably it admits that it would
grant only Parker a waiver he suffered disabilities,
from one of his the DOT con-
tends that it cannot issue waiver to a multiple impairments
driver with without America, UNITED STATES of evidence that such waiver is consistent Plaintiff-Appellee, public opera- with the interest and the safe Skinner, tion of a CMV. See Ward v. (1st Cir.1991).
F.2d 157 SAIKALY, Mansour W. Defendant- Appellant. argument unpersua- We find the DOT’S sive. When the FHWA initiated the waiv- No. 98-3786. program, er relied on several studies Appeals, United States Court of
which indicated that “the predictor best Circuit. Sixth performance by future a driver is his past record of accidents and traffic violations.” Aug. Submitted 1999. (1998). 1524,1525 Fed.Reg. Parker has Decided March clearly despite demonstrated that mul- tiple impairments, safely he is able to op- Furthermore,
erate a CMV. the DOT has attempted
not even driving consider a
test with a safety review of Parker’s rec- By failing
ord. to assess Parker’s actual
capabilities, the has in DOT essence creat- a per against
ed se rule vision granting
waivers to multiple individuals with dis-
abilities, thereby limiting such individuals’
employment opportunities. This stands goals
direct contradiction to the pur-
pose of the Rehabilitation Act which is to
provide equal opportunities for disabled
individuals, including assisting such indi- obtaining
viduals in substantial employ- 701(a)(6)-(b)(2). §§
ment. 29 U.S.C. such,
As we find that the FHWA’s deci- denying
sion Parker a waiver regulations arbitrary
federal vision is
capricious. Accordingly, the case may
manded so that the create a FHWA capacity
functional test consistent with its
findings driving that an individual’s record
is indicative performance of future which *2 objection to his criminal catego-
ry and the determination that he was a criminal history category rather than a V objects IV. also to a typographical *3 error judgment on the and commitment order filed after resentencing. For follow, the reasons that we AFFIRM in part and REVERSE in RE- part, and MAND for further proceedings consistent with this opinion.
I.
(briefed),
Samuel A. Yannucci
Asst. U.S.
May
Saikaly
In
was arrested fol-
Akron, OH,
Atty.,
Plaintiff-Appellee.
for
Akron,
lowing year-long investigation
a
in
Ohio,
(briefed), Cleveland,
targeting large-scale drug
P.
dealers
Dennis
Levin
OH, Defendant-Appellant.
Dillehay,
for
James
Jerome
and An-
Gordon
thony
Saikaly
Johnson.
ran
allegedly
a
COLE,
Before:
and
BATCHELDER
crack house on the south side of Akron
MARBLEY,
Judges;
Circuit
District
purchased
and
cocaine from Gordon and
Judge.*
Saikaly
Johnson on numerous occasions.
through
met
Shepherd,
Johnson
David
MARBLEY, D.J.,
opinion
delivered
who also ran a “crack
on the
house”
south
court,
COLE, J., joined.
in which
Initially,
side of Akron.
Saikaly
Shep-
and
373-74),
BATCHELDER,
(pp.
J.
delivered
friendly,
herd were
but a
developed.
rift
in
separate opinion concurring
part
a
and
According
presentence investigation
to the
dissenting
part.
report, Saikaly learned that
in-
Shepherd
to rob him.
protect
tended
To
his narcot-
OPINION
transactions, Saikaly allegedly
ics
instruct-
MARBLEY,
Judge.
District
Gadsen,
girlfriend,
purchase
ed his
Lisa
Defendant-Appellant Mansour W. Sai-
pistol
a Glock 9mm semi-automatic
for
kaly appeals
im-
the 240-month sentence
conversation,
In wiretapped phone
him.1
a
by posed
upon
district court
resentenc-
Shepherd
Saikaly
Johnson told
had
ing following the vacation of his conviction shown him the Glock.
using
carrying
or
a firearm relation
1,1992,
May
On
and two individ-
a drug trafficking
pursuant
crime
to 18
stopped
City
uals were
in New York
in a
and the vacation of his
U.S.C.
brother,
by Saikaly’s
Blazer
black
owned
designation as an armed career criminal
stopped
Maurice. The
were
individuals
924(e).
pursuant
Specifical-
to 18 U.S.C.
description
because the Blazer matched a
ly, Saikaly objects to the district court’s:
a vehicle involved in a
1)
robbery.
pursuant
enhancement of his sentence
2Dl.l(b)(l)
officers searched the vehicle and found
for possession
U.S.S.G.
2)
firearm;
Gadsen’s loaded Glock 9mm
locked
objec-
a
failure to consider his
$22,-
ammunition,
glove compartment,
and
tion to the amount of
for which he
3)
responsible;
companions
failure to consider
cash.
and his
*
(seized
Algenon
shotgun
Marbley,
The Honorable
L.
United
bedroom when
Judge
arrested)
States District
for the Southern District
Ruger
he was
and a
9mm semi-
Ohio, sitting by designation.
(seized
pistol
the crack
automatic
in raid of
purchased
1. Records indicated that Gadsen
thought
by Saikaly).
house
to be run
gauge
the Glock as well as Winchester .12
conviction, raising various chal-
arrested,
charges
pealed
were dis-
but those
were
and seizure of his
lenges
to Akron.
search
returned
missed
evidence,
home,
and the
sufficiency of
22, 1992, Saikaly
again
May
On
from his
stemming
of evidence
admission
in Akron and
at his residence
arrested
He also claimed
arrest
New York.
with twelve co-
charged, along
ultimately
This
Trial Act.
Speedy
violation of the
in-
defendants,
superseding
in a ten-count
conviction,
affirmed
see
to distribute and
dictment
Ross,
tion, the district court found presentence to create a new than 5 but less ordered responsible for more Mr. new for Saikaly ap- Saikaly. form Mr. kilograms of cocaine. than cocaine. eigh- possess with to distribute original charged the intent indictment conspiracy to distribute teen defendants with era, position which I know to be a will be scheduled sentencing hearing agree with. you probably don’t presently. determined that The district court Saika- report ordered The new warranted the two-level en- ly’s behavior following forth the the district court set a firearm. possession hancement findings recommendations: and/or briefly The district court noted that Sai- 1) pursu- that a two-level enhancement V, history category kaly was 2Dl.l(b)(l) pos- ant to U.S.S.G. conviction and de- vacated the ap- firearm should be session of a an armed termined that was not plied; career criminal. The district court 2) gov- amount of cocaine that the impris- sentenced to 240 months Saikaly was attributed to ernment timely appeal This onment. followed. 15 kilo- than 5 less than more but in a base offense grams, resulting II. 32; however, stat- level of findings “A in rela court’s factual ed that the amount of cocaine application Sentencing tion to the was the total attributed to himself subject to a deferential Guidelines are acts set out amount listed the overt *5 review. ‘clearly erroneous’ standard of indictment, 2.5567 kilo- in the the Guide Legal regarding conclusions grams, resulting a base offense however, lines, de are reviewed novo.” (for less than of 28 at least but level 320, Latouf, v. 132 F.3d United States and kilograms); 3.5 (6th denied, 1101, Cir.1997), cert. 523 U.S.
3)
history
a criminal
that
was
(1998).
1572,
Saikaly filed various filed a report and also new A. Enhancement for Possession of his support memorandum detailed of a Firearm objected to the fol- objections. Saikaly Sentencing The United States of his sentence lowing: the enhancement a enhance permit Guidelines firearm; a the amount possession of during firearm possession ment for of a him; the classifi- cocaine of attributed crime. See U.S.S.G. drug-trafficking criminal; career the cation as an armed 2Dl.l(b)(l). does not § This enhancement for ac- decrease his sentence failure to a defendant is convicted apply when responsibility; of the ceptance 924(c) § violating 18 U.S.C. sentenced over-represented the category imper constitute to do so would because the two-level en- past; of his seriousness counting. See, U.S.S.G. double missible aggravating an role rather hancement for Circuit, it is well § cmt. n. 2. In this 2K2.4 mitigat- for a than a two-level reduction court has the established that role; imposition the fine. ing 2Dl.l(b)(l) § en authority to- the apply court noted sentencing, At is resen- a defendant hancement when n Saikaly’s objections, stating: § of a after the vacation tenced .v United Pasquarille conviction. See and I think it’s marvel- your I read brief Cir.1997) indicated, States, done, but, I the 130 F.3d ously well “ juris the court gives that (stating now is not to recon- purpose of the court the en authority to reevaluate of the diction and figure purpose the sentence. The thát the sentence to ensure conjunction aggregate tire now is to resentence sen appropriate receives my opinion And report. with the defendant count”). In addi remaining tence on the question does the whole open not tion, appliea- has held that cet- this Court sentencing, quantity drugs, et Saikaly argues presented the enhancement does not violate that he evi- tion of id. at Jeopardy “explaining” presence the Double Clause. See dence 1222-23. The firearms. evidence sented was that Lisa Gadsen owned the pursu To obtain an enhancement Saikaly’s firearms. brother testified that 2Dl.l(b)(l), government ant to must Blazer, had driven Gadsen of the evidence preponderance show put glove Gadsen Glock com- possessed that the defendant the firearm further testi- partment. brother drug-trafficking during offense. See gave fied that Gadsen Winchester Sanchez, 928 F.2d United States him, which was followed by moth- (6th Cir.1991). Once the testimony put er’s that she the Winchester its initial burden that a showing satisfies in Saikaly’s room. As the district court however, weapon present, the burden resentencing hearing, stated at the “with defendant to shifts to the show that was respect, anybody all due I don’t think clearly improbable weapon [Saikaly’s the courtroom believed what connected to the offense. See United say.” brother and had to mother] McGhee, 1097-98 (6th Cir.1989). commentary As the rely also seems on the explains: U.S.S.G. 2D1.1 fact that he did not own the firearms. weapon enhancement for possession This is irrelevant. The issue is not own danger reflects the increased of violence possession ership, but of the firearms. drug possess weapons. when traffickers Here, a preponderance of the evidence adjustment applied should be Saikaly possessed indicated that the fire weapon present, clearly unless it is during drug-trafficking conspir arms improbable weapon was con- *6 acy. Saikaly failed to show that the fire example, nected with the offense. For arms were not connected to the offense. the enhancement would not applied be defendant, residence,
the arrested at his properly applied The district court an hunting 2Dl.l(b)(l) had unloaded rifle in the enhancement. closet. n § 2D1.1 cmt. n.
U.S.S.G. Quantity Drugs B. of Here, Saikaly argues that there was no Saikaly argues that the district court possessed evidence that he a firearm dim- by failing objections erred to consider his ing drug-trafficking offense. presentence investigation to the second re- argument wholly merit. lacks The evi- port regarding drugs the amount of attrib- Saikaly dence indicated that obtained the uted to him. The counters Glock 9mm to protect drug-trafficking his Saikaly by failing that waived this issue to activities and that he showed the to Glock appeal raise on direct 2255 Johnson, drug one of his sources. In addi- motion. tion, taped conversations from John- wiretapped son’s telephone presentence investigation indicates that The first Shepard Johnson told that Saikaly port Saikaly responsible was indicated that was carrying the Glock in a shoulder kilograms holster. more than 5 but less than 15 Moreover, the along Glock was found with of cocaine. did not make a defini- $22,000in cash—in objection finding. the vehicle was tive to that The district court, however, driving City. in New York Finally, objec- a load- construed of his one shotgun ed Winchester pertaining drugs seized from tions as to the amount of Saikaly’s bedroom when he was arrested. if Saikaly stated even was not This evidence than enough was more to kil- personally responsible for more than 5 cocaine, support the district ograms court’s conclusion that of “he still is liable for Saikaly possessed a quantities firearm. based on those which were rea-
369
nonetheless,
remains:
question
report;
to be involved
foreseeable
sonably
responsibility
itself.”
court’s
what is
of
the members
court’s
objections
of the district
to a new and differ-
addressing
the extent
This was
drugs.3
the amount
findings regarding
prepared for a de-
presentence report
ent
resentencing?
fendant’s
investigation
the second
In
Saikaly’s successful
after
report, prepared
clearly stated that
This court has
motion,
again
officer
probation
2255
following
appeal,
a direct
on remand
government’s position
that the
stated
any
can consider de novo
district court
for more than
responsible
if the re
regarding sentencing
arguments
In
of cocaine.
kilograms
less than
5 but
mand
does not limit its review. See
however,
order
officer
probation
report,
145,
Jennings, 83 F.3d
v.
drugs
amount of
attrib- United States
calculated the
also
(6th Cir.1996)
by adding
(finding
only
Saikaly individually
“[t]he
utable
in the overt
set forth
acts
which the district court
quantities
constraint under
indictment.
superseding
in the
resen-
purposes
listed
for the
operate,
must
amount, 2.5567
indicated
remand order itself. Where
tencing, is the
Saika-
the amount
kilograms, was
does not
limit the District
the remand
him. How-
ly
was attributable
believed
review,
de
sentencing is to be
Court’s
ever,
finding
objected to that
novo.”). majority
agree
A
of circuits
with
(2.5567
that not all of
kilograms) arguing
See,
resentencing.4
approach
a de novo
acts
drug amounts listed
overt
Caterino, 29 F.3d
v.
e.g., United States
him
attributed
should be
associated
(9th Cir.1994);
United
1394-95
responsi-
Saikaly stated that he was
him.
Cornelius,
968 F.2d
Cir.
kilogram of cocaine.
less than one
ble for
Smith,
1992);
States v.
United
objected
government’s
Saikaly also
(10th Cir.1991);
United States
for more
responsible
that he was
position:
(2d
Solis,
F.2d
Sanchez
Át the
kilograms.
than 15
than 5 but less
Cir.1989).
pre
policy underlying
court did
resentencing hearing, the district
resentencing
give
is to
of de novo
sumption
amount of
the issue of the
not address
all
balancing
court discretion
the re-
purpose
that the
drugs, stating
sentencing
elements of
competing
and, thus,
hearing was limited
*7
Campbell,
v.
United States
calculus. See
to Saika-
drugs attributable
the amount of
(6th
263,
Cir.), cert. de
265
168 F.3d
at issue.
ly was not
—
195,
nied,
-,
145
120
U.S.
S.Ct.
that the
glance,
appear
it would
At first
(1999).
L.Ed.2d 164
correct —that
government
had this been
Considering
foregoing,
drugs
objection to the amount
waived
appeal,
after a direct
a
remand
general
him
to raise the
by failing
to
attributable
to
obligated
been
would have
district court
§
and in his
2255
appeal
in his direct
issue
presen-
to the
Saikaly’s objections
consider
But,
problem
a
with
there is
motion.
case, however, arose
report. This
tence
Saikaly could
argument.
government’s
motion,
§
in which the
2255
from
report
objected
a presentence
have
to
not
department
probation
court ordered
prepared.
yet
that had not
been
form.” The
presentence
“a new
prepare
amount
objected to the
could have
possibly
an
operating
was not
district court
presentence
first
set forth
drugs
apple.”
See
"second bite of
set
warranted
superseding
in the case
3.
indictment
The
528,
Marmolejo,
531
indicating
139 F.3d
that the
v.
forth overt acts
United States
1056,
denied,
kilograms of
responsible
Cir.),
well over 5
U.S.
119
cert.
525
(1998);
cocaine.
United
L.Ed.2d 561
S.Ct.
Parker,
(7th Cir.
F.3d
however, viewing a
disagree,
Some circuits
4.
1996).
resentencing
an un-
approach to
as
de novo
Tackett,
from the court of appeals,
order of remand
in the case.”
United States
(6th Cir.1997).6
as in the
cases.
above-mentioned
F.3d
613-14
(cid:127) [9,10]
apply
The same concerns
at resen-
The district court should have
tencing
following
Saikaly’s objections
whether it occurs
direct
considered
sec-
to the
ond,
appeal
presentence
§
or a
2255 motion. In the context
report.
“new”
The dis-
motion,
§
of a 2255
this court has
trict
preparation
held
court ordered the
of a
limitation,
apply
a district court can
an enhancement
new report without
and the new
drug
resentencing
report
to a
sentence when
set forth a
regarding
statement
924(c)
§
vacating
drugs
defendant after
convict amount of
that differed from the
Pasquarille,
original presentence report. Saikaly
ion.5 See
filed
objections
The
Pasquarille
presen-
noted:
detailed
to the second
report
tence
924(c)
prior
resentencing
to the
It is clear that the
offense and hearing. Given
importance
underlying
interdependent,
offense are
report,
sentence
district courts should ad-
components
must be considered as
defendant,
any objections
dress
that a
single comprehensive
of a
have,
government might
Therefore,
plan.
gives
the court
report
materially
“new”
that contains
dif-
jurisdiction
authority
to reevaluate
presen-
ferent
information than the first
aggregate
entire
sentence to ensure
tencing
objections
even
these
that the defendant receives the appro-
come during resentencing. This reasoning
priate
remaining
sentence on the
count.
corresponds
ap-
this circuit’s de novo
(citation omitted).
Id.
proach to resentencing following remand
this argument by stating
counters
that the
after direct
present
are not “interdependent”
issues
is the case with
Saikaly may
prevail
U.S.S.G.
not
on the merits of
2Dl.l(b)(l).
difference,
Despite
argument,
this
fairly
because
seems
obvi-
however, Pasquarille makes it clear that a
reasonably
ous that
could
foresee
authority,
district court has the
on resen-
that more than
kilograms
five
of cocaine
tencing,
aggre-
to reevaluate “the entire
were
attributable
conspiracy.
gate
Nonetheless,
sentence.”
it is not for this Court
determination;
make that
the issue is
respect
With
to a district court’s
whether the
by failing
district court erred
obligations at sentencing, Federal Rule of
objection.
consider
We find
32(c)(1)requires
Criminal Procedure
a dis
that it did.
trict court to make a factual finding for
each
contested factor of the
The Dissent would find that
quantity
report.
requires
This circuit
“literal
com
attributed to
and the
rule,
pliance” with
because such factual
category assigned
himto
findings help “to ensure that defendants
are not properly before this
Court.
*8
are sentenced based on accurate informa
basis of the Dissent’s conclusion is that
tion and provide[
ap
] a clear record for
these issues were not contained in Saika-
courts,
pellate
prison
ly’s §
officials and adminis
petition
2255 habeas
and therefore
agencies
may
trative
who
later be
preserved
involved have not been
appellate
for
government espoused
position
provides
5. The
this
which
that defendant has either an
respect
presented
to the first issue
in this
right
present
right
absolute
to be
or a
of
is,
resentencing]”).
allocution [at
There
how-
ever, distinguishing
factor between this case
By analogy,
32(c)(3)(C),
Fed.R.Crim.P.
Pasquarille
Pasquarille
and the
case:
requires
which
district courts to allow a de-
disputed
court noted that "there are no
facts
right
sentencing,
fendant the
to allocution at
Here,
in
certainly
this case.” Id.
we
have
apply
has been held not to
2255 resen-
facts,
disputed
requires
which
a different re-
Pasquarille,
tencings. See
is the one which place took originally. the error as well. Accordingly, upon The point mand, of our hearing today is to the district court should correct the reduce that sentence judgment virtue of a and commitment pursuant order change in the law since the time the to Federal Rule of Criminal Procedure sentence was imposed, which is obvious- which allows for the correction of such ly to Mr. I benefit. don’t see clerical errors. resentencing,
10. At government offense; proper starting point stated Saikaly's rather, evidence indicated that entered guidelines provide that the term in 1991. That would still "commencement of the instant offense” in- place Saikaly’s juvenile 1985 and 1986 con- any cludes relevant conduct. See U.S.S.G. beyond five-year victions limit in criminal § 4A1.2 cmt. n. 8. The district court failed to history computation. Saikaly's determine when relevant conduct stating correct commenced. an overt act set out in the indictment is not
373 in in New York seized of evidence sion IV. rights Fourth Amendment of his violation reasons, AFFIRM we foregoing For the in object to the determination failed to and RE- in and part REVERSE in and part pre-sentence the in accor- proceedings further for MAND armed career as an be sentenced should opinion. with this dance in the district Saikaly prevailed offender. the claim Bailey claim on on the and court BATCHELDER, Judge, Circuit in ineffective had been his counsel part. in dissenting part, concurring in pre-sentence the object to failing to an armed that he was determination port’s majority’s III.A of part I concur in offender, relief on was denied but career en- court’s the district affirming holding, §The 2255 motion claims. remaining pursuant Saikaly’s sentence hancement of In appeal followed. currently us on before 2Dl.l(b)(l). the rea- For § to U.S.S.G. drugs quantity it, Saikaly challenges however, follow, I dissent sons of sentenc- purposes him for to attributed III.C, remand which III.B parts and history category es- the criminal ing and concerning issues court Sentencing to pursuant tablished to attributed quantity Guidelines. category. history his criminal claims appeal on will not review We states, Saikaly raised majority As the proceedings §in habeas 2255 presented conviction on to challenges” his “various di- previously on presented were not precise, more in To be appeal direct Jones, v. 813 appeal. rect See Chandler as error Saikaly assigned Cir.1987) (“It (6th a well- F.2d (1) evidence suppress to the failure court: review appellate principle established and an- the “knock seized violation not claims do address courts appellate (2) rule; of his Sixth the violation nounce” [T]his presented below.... properly not (3) trial; speedy Amendment to a right rejecting principle this on relie[s] jury multiple give to failure to assert petitioners by habeas attempts (4) instruction; insufficiency of the evi- presented not appeal on new claims conspir- on support conviction to dence below.”). See proceedings petition their (5) evi- insufficiency of the acy charge; Vaughn, also United States firearm on the conviction support to dence curiam) (hold- Cir.1992) (5th (per (6) of certain charges; and admission claims that ing that non-constitutional York in New seized evidence physical appeal on direct raised could have been on unrelated was arrested he when pro- in a collateral may not be asserted Ross, See United charges. quan- regarding issues ceeding). The Cir.1995) WL 253183 F.3d Saikaly and drugs attributed tity of ap- After his unsuccessful (unpublished). of his criminal guideline calculation motion, § fol- Saikaly filed peal, direct on category cognizable were motion, § by supplemental lowed Nonetheless, appeal direct in his neither (1) that: he claimed which § 2255 supplemental original or in his nor (2) he Bailey; invalid under conviction assign error ever motions did an armed improperly was sentenced concerning decision district court’s (3) 924(e)(2); evi- criminal under career fact, raised Saikaly first In those matters. during an unre- York in New dence seized its filed the issue at admitted improperly arrest lated after Be- petition. Saikaly’s 2255 response (4) ineffective trial; his counsel was the issues preserve failed to cause sentencing stages be- both the trial before review, properly not they are suppres- failed move cause counsel *11 this Court.1 reasons,
For the I foregoing dissent. STEWART,
Marshall T. Jr. and Isiah
Williams, Plaintiffs-Appellants, HENDERSON,
William Postmaster
General and United States Postal
Service, Defendants-Appellees.
No. 99-2432.
United Appeals, States Court of
Seventh Circuit.
Argued Feb.
Decided March majority opinion 1. The inaccurately claims range kilograms, him fell within the of 5 to 15 “the Dissent's conclusion is that (2) these issues history placed that his criminal him at were not Saikaly's contained in 2255 habe- Therefore, Category V. Saikaly disputed petition as therefore have not been accuracy findings, of either of those it was appellate served for review.” This is not the upon challenge incumbent him to them first dissenting opinion. basis for this It is the by objecting presentence investigation majority's attempt characterize appeal. and then in his direct His challenges being solely directed to "the preserve failure to these issues has now re- presentence report” 'new' finding to avoid default, procedural sulted in a and it is im- procedural default that is the basis for this proper majority for this Court to do as the has Saikaly’s original dissent. sentence was done argu- here and consider his defaulted based, alia, upon inter findings: two factual ments on (1) that the amount of cocaine allocated to