U.S. v. Darwich, 99-2147.

• Citation: 337 F.3d 645
• Decision Date: 24 July 2003
• Docket Number: No. 99-2147.,No. 01-2044.,99-2147.,01-2044.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mike DARWICH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

337 F.3d 645

UNITED STATES of America, Plaintiff-Appellee, v. Mike DARWICH, Defendant-Appellant.

No. 99-2147.

No. 01-2044.

United States Court of Appeals, Sixth Circuit.

Argued October 31, 2002.

Decided and Filed July 24, 2003.

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Kathleen Moro Nesi, (argued and briefed), Assistant United States Attorney, Detroit, MI, for Appellee.

Robert M. Morgan, (argued and briefed), Detroit, MI, for Appellant.

Before: KEITH, KENNEDY and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which KEITH, J., joined.

KENNEDY, J. (pp. 668-669), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MOORE, Circuit Judge.

Defendant-Appellant Mike Darwich ("Darwich") appeals from the eighty-eight month sentence imposed by the district court after he was convicted of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, and after he was subject to criminal forfeiture pursuant to 21 U.S.C. § 853. Darwich challenges the standard of proof used to establish drug quantity for sentencing, the sufficiency of the evidence used to prove drug quantity, and the receipt of firearm and leadership-role sentence enhancements.

Darwich was indicted for various drug-related crimes. Pursuant to a plea agreement, Darwich pleaded guilty to the conspiracy to distribute marijuana charge and agreed to the criminal forfeiture. The plea agreement, expressly noting the parties' decision to present evidence on the amount of marijuana at issue, stated that Darwich's prison sentence would not exceed ninety-six months. Thereafter, a probation officer prepared a presentence investigative report ("PSR") calculating Darwich's base offense level at 26, to which Darwich objected. The PSR arrived at this base offense level calculation through the use of a drug quantity averaging formula that held Darwich responsible for five pounds of marijuana per week for the length of the conspiracy.¹ The district court agreed with the PSR and determined that Darwich's conspiracy involved 236 kilograms of marijuana. Darwich was sentenced to eighty-eight months in prison and four years of supervised release, and he immediately filed an appeal. Subsequent to the filing of the appellate briefs but before oral argument, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In light of the Court's decision in Apprendi and the government's failure to allege any specific quantity of marijuana in the indictment, both Darwich and the government filed motions in this court to waive oral argument and requested that the case be remanded to the district court for resentencing to the statutory maximum of sixty months pursuant to § 841(b)(1)(D). On remand, the district court declined to consider the parties' sentence stipulation and determined that the evidence that the conspiracy involved 236 kilograms of marijuana was established beyond a reasonable doubt. Darwich, thereafter, filed this current appeal. We now REVERSE the district court's determination of the amount of drugs, VACATE Darwich's sentence because it was error for the district court to find that the necessary drug quantity was proven beyond a reasonable doubt and because the district court failed to issue a ruling on the disputed matter of Darwich's leadership role, and REMAND for resentencing to no more than sixty months in accordance with this opinion.

I. BACKGROUND

Darwich owned and operated the Can-field Market in Detroit, Michigan. The market sold snacks and alcoholic beverages but did not sell any milk, eggs, or bread. Market customers also were able to purchase nickel bags of marijuana from Darwich. According to Tom Smith ("Smith"), a former employee of the market, an estimated nine out of ten market customers purchased marijuana from Darwich. Darwich stored the marijuana on his person and in Pringles brand potato chip cans on the store shelves. The market's covert operations were uncovered when the FBI investigated whether police officers were protecting a drug business at the market.

On June 18, 1998, Darwich was indicted for conspiracy to distribute marijuana in violation of 21 U.S.C. § 846; use or carrying of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) & (2); possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1); two counts of maintaining a place for distributing and using marijuana in violation of 21 U.S.C. § 856; and criminal forfeiture pursuant to 21 U.S.C. § 853. The indictment alleged that the conspiracy took place between March 1996 and April 1998. Darwich subsequently entered into a Rule 11 plea agreement on the marijuana conspiracy charges under 21 U.S.C. § 846 and agreed to the criminal forfeiture under 21 U.S.C. § 853. The government dismissed all other charges brought against Darwich. Although the parties did not agree on a computation of the sentencing guidelines or a base offense level, they agreed to present evidence to the court for sentencing purposes, and the plea agreement stated that Darwich's prison sentence would not exceed ninety-six months.

A probation officer's calculations for the PSR set Darwich's base offense level at 26, for distribution of more than100 but less than 400 kilograms of marijuana. Darwich objected to this base offense level calculation and together with the United States Attorney made an unsuccessful attempt to stipulate to a specific sentence at the hearing on Darwich's objections to the PSR. The district court declined to accept the stipulated sentence, and instead held an evidentiary hearing on the issue of marijuana quantity. At this evidentiary hearing, the court heard testimony from four individuals, involved with or knowledgeable of the conspiracy, addressing the question of drug quantity.

The first witness was Agent Kyle Dodge ("Dodge"). A substantial portion of Dodge's testimony consisted of his summary recitation of the witnesses' testimony before the grand jury. Dodge testified that: (1) Ira Earehart testified that on ten occasions he purchased marijuana in quantities ranging from a nickel bag to one-quarter of a pound, and that on twenty occasions he purchased pound quantities; (2) Leon Lippett ("Lippett") testified that eight out of ten Canfield Market customers purchased marijuana; (3) Arnita Easterling ("Easterling") testified that sometime in or around July 1997 she began bagging nickel bags of marijuana three times a week and that other "camel people"² also bagged marijuana; (4) Arthur Pace testified that in the fall of 1997 he bagged a pound of marijuana into nickel bags each night; (5) Jillian Drappeaux ("Drappeaux") testified that she purchased marijuana from the market approximately twenty times in quantities of a pound or less; (6) Odestser Pace testified that as a market employee she sold nickel bags of marijuana; (7) Jason Alquiza ("Alquiza") testified that he regularly purchased marijuana at the market in quantities up to a pound; (8) Smith, a market employee, testified that during his shift nine out of ten customers came to purchase marijuana and that ordinarily there were sixty-five to seventy market customers during his shift; and (9) Kevin Dempsey testified that he worked at the market and assisted Darwich with the sale of marijuana. Dodge provided additional drug quantity evidence, informing the sentencing court that approximately 655.4 grams of marijuana were uncovered at the market during the search.

The next witness to testify was Orlando Rush ("Rush"), a federal prisoner incarcerated for possession with intent to distribute crack cocaine. The government secured Rush's testimony against Darwich by agreeing to recommend that Rush be released on bond and that his sentence be reduced to time served. Rush testified that he bought nickel bags from Darwich for personal use "basically every day"³ over the course of approximately nine months prior to Rush's arrest. Joint Appendix ("J.A.") at 440 (Mot. Hr'g, Rush Direct). He also testified that when he needed extra money he would buy anywhere from one-half of an ounce to one pound for further resale during the same nine-month timeframe.⁴ Rush further testified that Darwich sold approximately a pound of marijuana each day. When questioned as to how he arrived at this figure, Rush noted that his nephews (also known as the "camel people") worked as marijuana baggers at Darwich's home and that they would sometimes tell him that they bagged from one to two pounds at night.⁵

Darwich called the next witness, Easterling. Easterling testified that she began bagging marijuana in September 1997. She also testified that she did not bag every day and that there were periods of time when she did not bag marijuana at all. Easterling indicated that she worked three or four days each week. Although Easterling never weighed the marijuana, she initially estimated that she bagged one-half of a pound to one pound on the days when she worked. After further probing, Easterling admitted that it actually may have been less than one-quarter of a pound and that she really did not know the precise figure. In addition, Easterling testified that during her twelve-hour work days, she never saw anyone besides Darwich and Dempsey, thereby eliminating any possibility that she worked in conjunction with Rush's nephews. In response to a question from the judge, Easterling responded that she filled 300 to 325 nickel bags on the days when she worked.

The final witness was Smith, a Canfield Market employee. On direct examination, Smith admitted that he was not at the store every day and that there were times when he was absent due to vacation, hospitalization, and his other jobs. He also testified that between 1997 and the early part of 1998, the store was closed for at least four weeks. Smith admitted seeing Darwich sell nickel bags of marijuana, but testified...