UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MANSOUR W. SAIKALY, Defendant-Appellant.
No. 98-3786
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: March 23, 2000
2000 FED App. 0101P (6th Cir.)
Before: BATCHELDER and COLE, Circuit Judges; MARBLEY, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. ELECTRONIC CITATION: 2000 FED App. 0101P (6th Cir.) File Name: 00a0101p.06. Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 92-00200—Sam H. Bell, District Judge. Submitted: August 6, 1999.
ON BRIEF: Dennis P. Levin, Cleveland, Ohio, for Appellant. Samuel A. Yannucci, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee.
MARBLEY, D. J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 18-20), delivered a separate opinion concurring in part and dissenting in part.
OPINION
ALGENON L. MARBLEY, District Judge. Defendant-Appellant Mansour W. Saikaly appeals the 240-month sentence imposed by the district court upon resentencing following the vacation of his conviction for using or carrying a firearm in relation to a drug trafficking crime pursuant to
In May 1992, Saikaly was arrested following a year-long investigation in Akron, Ohio, targeting large-scale drug dealers James Dillehay, Jerome Gordon and Anthony Johnson. Saikaly allegedly ran a crack house on the south side of Akron and purchased cocaine from Gordon and Johnson on numerous occasions. Saikaly met Johnson through David Shepherd, who also ran a “crack house” on the south side of Akron. Initially, Saikaly and Shepherd were friendly, but a rift developed. According to the presentence investigation report, Saikaly learned that Shepherd intended to rob him. To protect his narcotics transactions, Saikaly allegedly instructed his girlfriend, Lisa Gadsen, to purchase a Glock 9mm semi-automatic pistol for him.1 In a wiretapped phone conversation, Johnson told Shepherd that Saikaly had shown him the Glock.
On May 1, 1992, Saikaly and two individuals were stopped in New York City in a black Blazer owned by Saikaly‘s brother, Maurice. The individuals were stopped because the Blazer matched a description of a vehicle involved in a robbery. The officers searched the vehicle and found Gadsen‘s loaded Glock 9mm in the locked glove compartment, ammunition, and $22,000 in cash. Saikaly and his companions were arrested, but those charges were dismissed and Saikaly returned to Akron.
On May 22, 1992, Saikaly was again arrested at his residence in Akron and ultimately charged, along with twelve co-defendants, in a ten-count superseding indictment2 for conspiracy to distribute and possess with the intent to
The jury was not persuaded by Saikaly‘s defenses to the firearms charges and convicted him on all counts. The district court sentenced Saikaly to a total of 360 months imprisonment (300 months on Counts 1, 8 and 9 and 60 months consecutive on Count 7). The district court found that Saikaly was an armed career criminal pursuant to U.S.S.G. § 4B1.4 and assigned him criminal history category V. In addition, the district court found that Saikaly was responsible for more than 5 but less than 15 kilograms of cocaine. Saikaly appealed his conviction, raising various challenges to the search and seizure of his home, the sufficiency of evidence, and the admission of evidence stemming from his arrest in New York. He also claimed a violation of the Speedy Trial Act. This court affirmed Saikaly‘s conviction, see United States v. Ross, 53 F.3d 332 (6th Cir. 1995), and the United States Supreme Court denied certiorari.
Saikaly then filed a motion to vacate, set aside or correct his sentence pursuant to
Mr. Saikaly‘s petition for relief is granted with respect to his
§ 924(c) claim and his request for resentencing based on the court‘s utilization of an erroneous presentence report. In all other regards, Mr. Saikaly‘s petition is denied.The Probation Department is hereby ordered to create a new presentence form for Mr. Saikaly. Mr. Saikaly‘s new sentencing hearing will be scheduled presently.
The new presentence report ordered by the district court set forth the following findings and/or recommendations:
- that a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm should be applied;
- that the amount of cocaine the government attributed to Saikaly was more than 5 but less than 15 kilograms, resulting in a base offense level of 32; however, the report stated that the amount of cocaine Saikaly attributed to himself was the total amount listed in the overt acts set out in the indictment, or 2.5567
kilograms, resulting in a base offense level of 28 (for at least 2 but less than 3.5 kilograms); and - that Saikaly was a criminal history category IV.
Saikaly filed various objections to the new presentence report and also filed a detailed memorandum in support of his objections. Saikaly objected to the following: the enhancement of his sentence for possession of a firearm; the amount of cocaine attributed to him; the classification as an armed career criminal; the failure to decrease his sentence for acceptance of responsibility; the criminal history category over-represented the seriousness of his past; the two-level enhancement for an aggravating role rather than a two-level reduction for a mitigating role; and the imposition of a fine.
At sentencing, the district court noted Saikaly‘s objections, stating:
I read your brief and I think it‘s marvelously well done, but, as I indicated, the purpose of the court now is not to reconfigure the sentence. The purpose of the court now is to resentence in conjunction with the report. And in my opinion that does not open the whole question of sentencing, the quantity of drugs, et cetera, which I know to be a position that you probably don‘t agree with.
The district court determined that Saikaly‘s behavior warranted the two-level enhancement for possession of a firearm. The district court briefly noted that Saikaly was a criminal history category V, vacated the
II.
“A court‘s factual findings in relation to the application of Sentencing Guidelines are subject to a deferential ‘clearly erroneous’ standard of review. Legal conclusions regarding the Guidelines, however, are reviewed de novo.” United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997), cert. denied, 118 S. Ct. 1572 (1998).
A. Enhancement for Possession of a Firearm
The United States Sentencing Guidelines permit a sentencing enhancement for possession of a firearm during a drug-trafficking crime. See U.S.S.G. § 2D1.1(b)(1). This enhancement does not apply when a defendant is convicted and sentenced for violating
To obtain an enhancement pursuant to § 2D1.1(b)(1), the government must show by a preponderance of the evidence that the defendant possessed the firearm during the drug-trafficking offense. See United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991). Once the government satisfies its initial burden of showing that a weapon was present, however, the burden shifts to the defendant to show that it was clearly improbable that the weapon was connected to the offense. See United States v. McGhee, 882 F.2d 1095, 1097-98 (6th Cir. 1989). As the commentary to U.S.S.G. § 2D1.1 explains:
The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.
U.S.S.G. § 2D1.1 cmt. n.3.
Here, Saikaly argues that there was no evidence that he possessed a firearm during the drug-trafficking offense. Saikaly‘s argument wholly lacks merit. The evidence indicated that Saikaly obtained the Glock 9mm to protect his drug-trafficking activities and that he showed the Glock to Johnson, one of his drug sources. In addition, the taped conversations from Johnson‘s wiretapped telephone indicates that Johnson told Shepard that Saikaly was carrying the Glock in a shoulder holster. Moreover, the Glock was found – along with $22,000 in cash – in the vehicle Saikaly was driving in New York City. Finally, a loaded Winchester shotgun was seized from Saikaly‘s bedroom when he was arrested. This evidence was more than enough to support the district court‘s conclusion that Saikaly possessed a firearm.
Saikaly argues that he presented evidence “explaining” the presence of the firearms. The evidence that Saikaly presented was that Lisa Gadsen owned the firearms. Saikaly‘s brother testified that Gadsen had driven the Blazer, and that Gadsen put the Glock in the glove compartment. Saikaly‘s brother further testified that Gadsen gave the Winchester to him, which was followed by Saikaly‘s mother‘s testimony that she put the Winchester in Saikaly‘s room. As the district court stated at the resentencing hearing, “with all due respect, I don‘t think anybody in the courtroom believed what [Saikaly‘s brother and mother] had to say.”
Saikaly also seems to rely on the fact that he did not own the firearms. This is irrelevant. The issue is not ownership, but possession of the firearms. Here, a preponderance of the evidence indicated that Saikaly possessed the firearms during the drug-trafficking conspiracy. Saikaly failed to show that the firearms were not connected to the offense. The district
B. Quantity of Drugs
Saikaly argues that the district court erred by failing to consider his objections to the second presentence investigation report regarding the amount of drugs attributed to him. The government counters that Saikaly waived this issue by failing to raise it on direct appeal and in his
The first presentence investigation report indicated that Saikaly was responsible for more than 5 but less than 15 kilograms of cocaine. Saikaly did not make a definitive objection to that finding. The district court, however, construed one of his objections as pertaining to the amount of drugs and stated that even if Saikaly was not personally responsible for more than 5 kilograms of cocaine, “he still is liable for quantities based on those which were reasonably foreseeable to be involved in by the members of the conspiracy itself.” This was the extent of the district court‘s findings regarding the amount of drugs.3
In the second presentence investigation report, prepared after Saikaly‘s successful
At first glance, it would appear that the government is correct – that Saikaly waived objection to the amount of drugs attributable to him by failing to raise the issue in his direct appeal and in his
This court has clearly stated that on remand following a direct appeal, a district court can consider de novo any arguments regarding sentencing if the remand order does not limit its review. See United States v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996) (finding that “[t]he only constraint under which the district court must operate, for the purposes of resentencing, is the remand order itself. Where the remand does not limit the District Court‘s review, sentencing is to be de novo.“). A majority of circuits agree with a de novo approach to resentencing.4 See, e.g., United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir. 1994); United States v. Cornelius, 968 F.2d 703 (8th Cir. 1992); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989). The policy underlying the presumption of de novo
Considering the foregoing, had this been a general remand after a direct appeal, the district court would have been obligated to consider Saikaly‘s objections to the presentence report. This case, however, arose from a
The same concerns apply at resentencing whether it occurs following direct appeal or a
It is clear that the 924(c) offense and the underlying offense are interdependent, and must be considered as components of a single comprehensive sentencing plan. Therefore,
§ 2255 gives the court jurisdiction and authority to reevaluate the entire aggregate sentence to ensure that the defendant receives the appropriate sentence on the remaining count.
Id. (citation omitted). The government counters this argument by stating that the present issues are not “interdependent” as is the case with
The district court should have considered Saikaly‘s objections to the second, “new” presentence report. The district court ordered the preparation of a new report without limitation, and the new report set forth a statement regarding the amount of drugs that differed from the original presentence report. Saikaly filed detailed objections to the second presentence report prior to the resentencing hearing. Given the importance of the presentence report, district courts should address any objections that a defendant, or that the government might have, to a “new” report that contains materially different information than the first presentencing report even if these objections come during resentencing. This reasoning corresponds with this circuit‘s de novo approach to resentencing following remand after direct appeal.
Saikaly may not prevail on the merits of his argument, because it seems fairly obvious that Saikaly could reasonably foresee that more than five kilograms of cocaine were attributable to the conspiracy. Nonetheless, it is not for this
The Dissent would find that the quantity of drugs attributed to Saikaly and the criminal history category assigned to him are not properly before this Court. The basis of the Dissent‘s conclusion is that these issues were not contained in Saikaly‘s
Here, following Saikaly‘s successful
Once the district court ordered the creation of a new presentencing report, it was obligated to rule on Saikaly‘s “unresolved objections” and make a “written record of such findings and determinations.”
The Court finds that the actual issues raised in subparts III.B and C are properly before it. Accordingly, this case is REMANDED to the district court for consideration of the issue of quantity of drugs attributable to Saikaly.
C. Criminal History Category7
Saikaly argues that the district court erred by determining that he was a criminal history category V, rather than a criminal history category IV, as recommended in the second presentence report.
At the outset, there appears to be a discrepancy in the district court‘s determination. At the sentencing hearing, the district court stated that Saikaly was a criminal history category V; however, the second judgment and commitment order states that Saikaly is a criminal history category IV. The district court did not rely on the guideline range as determined by the offense level and the criminal history category in sentencing because a statutory mandatory minimum was applicable.8 Thus, it is uncertain which criminal history category Saikaly was assigned.
At resentencing, the district court noted that there was uncertainty as to Saikaly‘s criminal history category. The probation officer explained why he had determined that Saikaly was a criminal history category IV rather than V:
Some of [Saikaly‘s] juvenile arrests had been applied because of 1988, which was the beginning of the
conspiracy, were used as the starting point in order to count prior juvenile arrests.9 Over the years the relevant conduct issues said that, well, if there is any evidence that a person hasn‘t been in a conspiracy since its beginning, then in essence the time limits vary according to when it can be determined that‘s when the person actually entered.
When I did the reconsideration, I went to the first overt act which appeared in the indictment and found that that occurred on January 29th, 1992. On the basis of that, I computed the juvenile arrests. And since juvenile convictions only carry a five year rather than a 10 year or 15 year, as the adults do, some of the early juvenile arrests that have been configured into the original report did not get points in the revised ruling. That difference is what created a four rather than a five.
J.A. at 428 (footnote added).
The government disagreed, stating that the issue was not before the court. The government also stated:
I would also indicate that using an overt act as the starting point because, as the court is aware, overt acts are something that the government need not allege.
The fact that the first overt act occurred in 1992 does not square with the testimony that was presented in this case, which indicated that Mr. Saikaly was dealing with Jerome Gordon and Anthony Johnson during 1991.
J.A. at 429.
The district court apparently agreed with the government, stating:
The sentencing which we are speaking is the one which took place originally. The point of our hearing today is to reduce that sentence by virtue of a change in the law since the time the sentence was imposed, which is obviously to Mr. Saikaly‘s benefit. I don‘t see this, unless you have some thoughts, as being a total resentencing with a sense of recommitment to the figures here.
In addition to that, it does not seem to me that the recollection that I have of the testimony does not establish, even by a preponderance of the evidence, that the January 29th date is the beginning of this, from the standpoint of the guideline configuration.
For these reasons, I think the category V is applicable here.
J.A. at 429-30.
This Court finds that Saikaly‘s criminal history category was at issue. For the reasons set out in the previous section, the district court should have fully considered Saikaly‘s argument. The district court gave a limited reason for why Saikaly was a criminal history category V: that it did not believe that January 29, 1992 was the date Saikaly entered the conspiracy. However, the district court failed to make a specific finding of the date that Saikaly entered the conspiracy, or commenced the instant offense.10 This case is REMANDED for consideration of this issue.
Saikaly complains that although the district court vacated the
IV.
For the foregoing reasons, we AFFIRM in part and REVERSE in part and REMAND for further proceedings in accordance with this opinion.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MANSOUR W. SAIKALY, Defendant-Appellant.
No. 98-3786
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
ALICE M. BATCHELDER, concurring in part, dissenting in part. I concur in part III.A of the majority‘s holding, affirming the district court‘s enhancement of Saikaly‘s sentence pursuant to U.S.S.G. § 2D1.1(b)(1). For the reasons that follow, however, I dissent from parts III.B and III.C, which remand to the district court the issues concerning the quantity of drugs attributed to Saikaly and his criminal history category.
As the majority states, Saikaly raised “various challenges” to his conviction on direct appeal in 1995. To be more precise, Saikaly assigned as error in the district court: (1) the failure to suppress evidence seized in violation of the “knock and announce” rule; (2) the violation of his Sixth Amendment right to a speedy trial; (3) the failure to give a multiple conspiracy jury instruction; (4) insufficiency of the evidence to support conviction on the conspiracy charge; (5) insufficiency of the evidence to support conviction on the firearm charges; and (6) the admission of certain physical evidence seized in New York when he was arrested on unrelated charges. See United States v. Ross, 53 F.3d 332, 1995 WL 253183 (6th Cir. April 27, 1995) (unpublished). After his unsuccessful appeal, Saikaly filed a
We will not review on appeal claims presented in
For the foregoing reasons, I dissent.
* The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.