United States v. Saikaly

RECOMMENDED FOR FULL-TEXT PUBLICATION 20 United States v. Saikaly No. 98-3786 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0101P (6th Cir.) File Name: 00a0101p.06 For the foregoing reasons, I dissent.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 98-3786 v.  > MANSOUR W. SAIKALY,  Defendant-Appellant.  1 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 Decided and Filed: March 23, 2000 Before: BATCHELDER and COLE, Circuit Judges; MARBLEY, District Judge.*

first by objecting to the presentence investigation report and then in his direct appeal. His failure to preserve these issues has now resulted in a * procedural default, and it is improper for this Court to do as the majority The Honorable Algenon L. Marbley, United States District Judge for has done here and consider his defaulted arguments on appeal. the Southern District of Ohio, sitting by designation.

2 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 19

_________________ his counsel had been ineffective in failing to object to the pre- sentence report’s determination that he was an armed career COUNSEL offender, but was denied relief on the remaining claims. The § 2255 motion currently before us on appeal followed. In it, ON BRIEF: Dennis P. Levin, Cleveland, Ohio, for Saikaly challenges the quantity of drugs attributed to him for Appellant. Samuel A. Yannucci, ASSISTANT UNITED purposes of sentencing and the criminal history category STATES ATTORNEY, Akron, Ohio, for Appellee. established pursuant to the Sentencing Guidelines. MARBLEY, D. J., delivered the opinion of the court, in We will not review on appeal claims presented in § 2255 which COLE, J., joined. BATCHELDER, J. (pp. 18-20), habeas proceedings that were not presented previously on delivered a separate opinion concurring in part and dissenting direct appeal. See Chandler v. Jones, 813 F.2d 773, 777 (6th in part. Cir. 1987) (“It is a well-established principle of appellate review that appellate courts do not address claims not _________________ properly presented below . . . . [T]his court relie[s] on this principle in rejecting attempts by habeas petitioners to assert OPINION new claims on appeal not presented in their petition or _________________ proceedings below.”). See also United States v. Vaughn, 955 ALGENON L. MARBLEY, District Judge. Defendant- F.2d 367, 368 (5th Cir. 1992) (per curiam) (holding that non- Appellant Mansour W. Saikaly appeals the 240-month constitutional claims that could have been raised on direct sentence imposed by the district court upon resentencing appeal may not be asserted in a collateral proceeding). The following the vacation of his conviction for using or carrying issues regarding the quantity of drugs attributed to Saikaly a firearm in relation to a drug trafficking crime pursuant to 18 and the guideline calculation of his criminal history category U.S.C. § 924(c) and the vacation of his designation as an were cognizable on direct appeal. Nonetheless, neither in his armed career criminal pursuant to 18 U.S.C. § 924(e). direct appeal nor in his original or supplemental § 2255 Specifically, Saikaly objects to the district court’s: 1) motions did Saikaly ever assign error to the district court’s enhancement of his sentence pursuant to U.S.S.G. decision concerning those matters. In fact, Saikaly first raised § 2D1.1(b)(1) for possession of a firearm; 2) failure to the issue after the government filed its response to Saikaly’s consider his objection to the amount of drugs for which he §2255 petition. Because Saikaly failed to preserve 1the issues was responsible; and 3) failure to consider his objection to his for review, they are not properly before this Court. criminal history category and the determination that he was a criminal history category V rather than a IV. Saikaly also 1 objects to a typographical error on the judgment and The majority opinion inaccurately claims “the Dissent’s conclusion commitment order filed after the resentencing. For the is that these issues were not contained in Saikaly’s §2255 habeas petition reasons that follow, we AFFIRM in part and REVERSE in and therefore have not been preserved for appellate review.” This is not the basis for this dissenting opinion. It is the majority’s attempt to part, and REMAND for further proceedings consistent with characterize Saikaly’s challenges as being directed solely to “the ‘new’ this opinion. presentence report” to avoid finding a procedural default that is the basis for this dissent. Saikaly’s original sentence was based, inter alia, upon two factual findings: (1) that the amount of cocaine allocated to him fell within the range of 5 to 15 kilograms, and (2) that his criminal history placed him at Category V. Therefore, if Saikaly disputed the accuracy of either of those findings, it was incumbent upon him to challenge them

18 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 3

______________________________________________ I. CONCURRING IN PART, DISSENTING IN PART 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 ALICE M. BATCHELDER, concurring in part, dissenting Johnson. Saikaly allegedly ran a crack house on the south in part. I concur in part III.A of the majority’s holding, side of Akron and purchased cocaine from Gordon and affirming the district court’s enhancement of Saikaly’s Johnson on numerous occasions. Saikaly met Johnson sentence pursuant to U.S.S.G. § 2D1.1(b)(1). For the reasons through David Shepherd, who also ran a “crack house” on the that follow, however, I dissent from parts III.B and III.C, south side of Akron. Initially, Saikaly and Shepherd were which remand to the district court the issues concerning the friendly, but a rift developed. According to the presentence quantity of drugs attributed to Saikaly and his criminal history investigation report, Saikaly learned that Shepherd intended category. to rob him. To protect his narcotics transactions, Saikaly allegedly instructed his girlfriend, Lisa Gadsen, to purchase a As the majority states, Saikaly raised “various challenges” Glock 9mm semi-automatic pistol for him.1 In a wiretapped to his conviction on direct appeal in 1995. To be more phone conversation, Johnson told Shepherd that Saikaly had precise, Saikaly assigned as error in the district court: (1) the shown him the Glock. failure to suppress evidence seized in violation of the “knock and announce” rule; (2) the violation of his Sixth Amendment On May 1, 1992, Saikaly and two individuals were stopped right to a speedy trial; (3) the failure to give a multiple in New York City in a black Blazer owned by Saikaly’s conspiracy jury instruction; (4) insufficiency of the evidence brother, Maurice. The individuals were stopped because the to support conviction on the conspiracy charge; (5) Blazer matched a description of a vehicle involved in a insufficiency of the evidence to support conviction on the robbery. The officers searched the vehicle and found firearm charges; and (6) the admission of certain physical Gadsen’s loaded Glock 9mm in the locked glove evidence seized in New York when he was arrested on compartment, ammunition, and $22,000 in cash. Saikaly and unrelated charges. See United States v. Ross, 53 F.3d 332, his companions were arrested, but those charges were 1995 WL 253183 (6th Cir. April 27, 1995) (unpublished). dismissed and Saikaly returned to Akron. After his unsuccessful appeal, Saikaly filed a § 2255 motion, followed by a supplemental § 2255 motion, in which he On May 22, 1992, Saikaly was again arrested at his claimed that: (1) his § 924(c) conviction was invalid under residence in Akron and ultimately charged, along with twelve Bailey; (2) he was sentenced improperly as an armed career co-defendants, in a ten-count superseding indictment2 for criminal under § 924(e)(2); (3) evidence seized in New York conspiracy to distribute and possess with the intent to during an unrelated arrest was improperly admitted at trial; and (4) his counsel was ineffective at both the trial and sentencing stages because counsel failed to move for 1 Records indicated that Gadsen purchased the Glock as well as a suppression of evidence seized in New York in violation of Winchester .12 gauge shotgun (seized from Saikaly’s bedroom when he his Fourth Amendment rights and failed to object to the was arrested) and a Ruger 9mm semi-automatic pistol (seized in a raid of determination in the pre-sentence report that Saikaly should the crack house thought to be run by Saikaly). be sentenced as an armed career offender. Saikaly prevailed 2 in the district court on the Bailey claim and on the claim that The original indictment charged the eighteen defendants with conspiracy to distribute and possess with intent to distribute cocaine.

4 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 17

distribute cocaine, and various other drug and firearm D. Typographical Error charges. Saikaly was named in Count 1 (conspiracy), Count 7 (using or carrying a firearm in connection with a drug- Saikaly complains that although the district court vacated trafficking crime, in violation of 18 U.S.C. § 924(c)), and the § 924(c) conviction, the second judgment and Counts 8 and 9 (felon in possession of a firearm, in violation commitment order continues to state that Saikaly was found of 18 U.S.C. § 922(g)(1)). Co-defendants Gordon and guilty of that offense. Saikaly is correct, and the government Johnson entered pleas of guilty and served as government acknowledges the error as well. Accordingly, upon remand, witnesses at trial, providing much of the testimony against the the district court should correct the judgment and other defendants. Saikaly presented four witnesses on his commitment order pursuant to Federal Rule of Criminal behalf – his parents and his siblings. Saikaly’s brother, Procedure 36, which allows for the correction of such clerical Maurice, testified that he received the Winchester shotgun errors. from Lisa Gadsen as payment for electronics work he had done for her, that Gadsen owned the Glock, and that he had IV. allowed Gadsen to drive his Blazer. Maurice also testified that the $22,000 found in the Blazer belonged to him. For the foregoing reasons, we AFFIRM in part and Saikaly’s mother testified that she found the Winchester REVERSE in part and REMAND for further proceedings in shotgun in the garage where Maurice conducted his accordance with this opinion. electronics business, and that she moved it to Saikaly’s bedroom for safekeeping. 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 28 U.S.C. § 2255, raising four issues as construed by the district court: 1) Saikaly’s § 924(c)

16 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 5

The sentencing which we are speaking is the one conviction was not valid after Bailey v. United States, 516 which took place originally. The point of our hearing U.S. 137 (1995); 2) Saikaly’s Fourth Amendment rights had today is to reduce that sentence by virtue of a change in been violated in the seizure of evidence used against him at the law since the time the sentence was imposed, which trial; 3) the evidence obtained from the New York arrest is obviously to Mr. Saikaly’s benefit. I don’t see this, should not have been admitted and used against him; and 4) unless you have some thoughts, as being a total Saikaly was denied effective assistance of counsel at trial and resentencing with a sense of recommitment to the figures on appeal. The district court vacated Saikaly’s § 924(c) here. conviction, finding that there was no evidence that he “used” In addition to that, it does not seem to me that the or “carried” a firearm as defined by Bailey. In addition, the recollection that I have of the testimony does not district court agreed with Saikaly on one of his specific claims establish, even by a preponderance of the evidence, that regarding ineffective assistance of counsel: that his trial the January 29th date is the beginning of this, from the counsel failed to object to his classification as an armed standpoint of the guideline configuration. career criminal in the presentence report because two of the For these reasons, I think the category V is applicable three underlying offenses did not qualify as serious drug here. offenses or as violent felonies under the statute. The district court concluded: J.A. at 429-30. Mr. Saikaly’s petition for relief is granted with respect This Court finds that Saikaly’s criminal history category to his § 924(c) claim and his request for resentencing was at issue. For the reasons set out in the previous section, based on the court’s utilization of an erroneous the district court should have fully considered Saikaly’s presentence report. In all other regards, Mr. Saikaly’s argument. The district court gave a limited reason for why petition is denied. Saikaly was a criminal history category V: that it did not believe that January 29, 1992 was the date Saikaly entered the The Probation Department is hereby ordered to create conspiracy. However, the district court failed to make a a new presentence form for Mr. Saikaly. Mr. Saikaly’s specific finding of the date that Saikaly10 entered the new sentencing hearing will be scheduled presently. conspiracy, or commenced the instant offense. This case is REMANDED for consideration of this issue. The new presentence report ordered by the district court set forth the following findings and/or recommendations: 1) that a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm should be 10 applied; At resentencing, the government stated that evidence indicated that Saikaly entered the conspiracy in 1991. That would still place Saikaly’s 1985 and 1986 juvenile convictions beyond the five-year limit in criminal 2) that the amount of cocaine the government attributed history computation. to Saikaly was more than 5 but less than 15 kilograms, The government was correct in stating that an overt act set out in the resulting in a base offense level of 32; however, the indictment is not the proper starting point for Saikaly’s offense; rather, the report stated that the amount of cocaine Saikaly guidelines provide that the term “commencement of the instant offense” attributed to himself was the total amount listed in the includes any relevant conduct. See U.S.S.G. § 4A1.2 cmt. n.8. The district court failed to determine when Saikaly’s relevant conduct overt acts set out in the indictment, or 2.5567 commenced.

6 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 15

kilograms, resulting in a base offense level of 28 (for conspiracy, were used as the starting point in order to at least 2 but less than 3.5 kilograms); and count prior juvenile arrests.9 Over the years the relevant conduct issues said that, 3) that Saikaly was a criminal history category IV. well, if there is any evidence that a person hasn’t been in a conspiracy since its beginning, then in essence the time Saikaly filed various objections to the new presentence limits vary according to when it can be determined that’s report and also filed a detailed memorandum in support of when the person actually entered. his objections. Saikaly objected to the following: the When I did the reconsideration, I went to the first overt enhancement of his sentence for possession of a firearm; the act which appeared in the indictment and found that that amount of cocaine attributed to him; the classification as an occurred on January 29th, 1992. On the basis of that, I armed career criminal; the failure to decrease his sentence for computed the juvenile arrests. And since juvenile acceptance of responsibility; the criminal history category convictions only carry a five year rather than a 10 year or over-represented the seriousness of his past; the two-level 15 year, as the adults do, some of the early juvenile enhancement for an aggravating role rather than a two-level arrests that have been configured into the original report reduction for a mitigating role; and the imposition of a fine. did not get points in the revised ruling. That difference is what created a four rather than a five. At sentencing, the district court noted Saikaly’s objections, stating: J.A. at 428 (footnote added). I read your brief and I think it’s marvelously well done, The government disagreed, stating that the issue was not but, as I indicated, the purpose of the court now is not to before the court. The government also stated: reconfigure the sentence. The purpose of the court now is to resentence in conjunction with the report. And in I would also indicate that using an overt act as the my opinion that does not open the whole question of starting point because, as the court is aware, overt acts sentencing, the quantity of drugs, et cetera, which I know are something that the government need not allege. to be a position that you probably don’t agree with. The fact that the first overt act occurred in 1992 does not square with the testimony that was presented in this The district court determined that Saikaly’s behavior case, which indicated that Mr. Saikaly was dealing with warranted the two-level enhancement for possession of a Jerome Gordon and Anthony Johnson during 1991. firearm. The district court briefly noted that Saikaly was a criminal history category V, vacated the § 924(c) conviction J.A. at 429. and determined that Saikaly was not an armed career criminal. The district court resentenced Saikaly to 240 months The district court apparently agreed with the government, imprisonment. This timely appeal followed. stating: II. 9 “A court’s factual findings in relation to the application of The guidelines provide that a criminal history point is added for a Sentencing Guidelines are subject to a deferential ‘clearly juvenile sentence imposed within five years of the defendant’s erroneous’ standard of review. Legal conclusions regarding commencement of the instant offense. See U.S.S.G. § 4A1.2(d). Here, the Guidelines, however, are reviewed de novo.” United the conspiracy allegedly started in 1988, and Saikaly’s juvenile convictions at issue were in 1985 and 1986.

14 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 7

failure to make such a ruling, is indeed properly before this States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997), cert. Court. denied, 118 S. Ct. 1572 (1998). The Court finds that the actual issues raised in subparts III. III.B and C are properly before it. Accordingly, this case is REMANDED to the district court for consideration of the A. Enhancement for Possession of a Firearm issue of quantity of drugs attributable to Saikaly. The United States Sentencing Guidelines permit a C. Criminal History Category 7 sentencing enhancement for possession of a firearm during a drug-trafficking crime. See U.S.S.G. § 2D1.1(b)(1). This Saikaly argues that the district court erred by determining enhancement does not apply when a defendant is convicted that he was a criminal history category V, rather than a and sentenced for violating 18 U.S.C. § 924(c) because to do criminal history category IV, as recommended in the second so would constitute impermissible double counting. See presentence report. U.S.S.G. § 2K2.4 cmt. n.2. In this Circuit, it is well established that a district court has the authority to apply the At the outset, there appears to be a discrepancy in the § 2D1.1(b)(1) enhancement when a defendant is resentenced district court’s determination. At the sentencing hearing, the after the vacation of a § 924(c) conviction. See Pasquarille district court stated that Saikaly was a criminal history v. United States, 130 F.3d 1220, 1222 (6th Cir. 1997) (stating category V; however, the second judgment and commitment that “§ 2255 gives the court jurisdiction and authority to order states that Saikaly is a criminal history category IV. reevaluate the entire aggregate sentence to ensure that the The district court did not rely on the guideline range as defendant receives the appropriate sentence on the remaining determined by the offense level and the criminal history count”). In addition, this Court has held that the application category in sentencing because a statutory mandatory of the enhancement does not violate the Double Jeopardy minimum was applicable.8 Thus, it is uncertain which Clause. See id. at 1222-23. criminal history category Saikaly was assigned. To obtain an enhancement pursuant to § 2D1.1(b)(1), the At resentencing, the district court noted that there was government must show by a preponderance of the evidence uncertainty as to Saikaly’s criminal history category. The that the defendant possessed the firearm during the drug- probation officer explained why he had determined that trafficking offense. See United States v. Sanchez, 928 F.2d Saikaly was a criminal history IV rather than V: 1450, 1460 (6th Cir. 1991). Once the government satisfies its initial burden of showing that a weapon was present, Some of [Saikaly’s] juvenile arrests had been applied however, the burden shifts to the defendant to show that it because of 1988, which was the beginning of the 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: 7 Under the same rationale, the issues raised in subpart III.C are also properly before this Court. The enhancement for weapon possession reflects the increased danger of violence when drug traffickers 8 More than 5 kilograms of cocaine requires 20 year mandatory possess weapons. The adjustment should be applied if minimum. See 21 U.S.C. § 841(b)(1)(A)(ii). the weapon was present, unless it is clearly improbable

8 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 13

that the weapon was connected with the offense. For Court to make that determination; the issue is whether the example, the enhancement would not be applied if the district court erred by failing to consider Saikaly’s objection. defendant, arrested at his residence, had an unloaded We find that it did. hunting rifle in the closet. The Dissent would find that the quantity of drugs attributed U.S.S.G. § 2D1.1 cmt. n.3. to Saikaly and the criminal history category assigned to him are not properly before this Court. The basis of the Dissent's Here, Saikaly argues that there was no evidence that he conclusion is that these issues were not contained in Saikaly's possessed a firearm during the drug-trafficking offense. § 2255 habeas petition and therefore have not been preserved Saikaly’s argument wholly lacks merit. The evidence for appellate review. The Dissent has mischaracterized the indicated that Saikaly obtained the Glock 9mm to protect his issues that are presently before this Court. Saikaly's appeal drug-trafficking activities and that he showed the Glock to does not arise from a § 2255 habeas motion; rather, it arises Johnson, one of his drug sources. In addition, the taped from the sentence the district court imposed pursuant to the conversations from Johnson’s wiretapped telephone indicates "new" presentence report. Saikaly appeals the district court's that Johnson told Shepard that Saikaly was carrying the Glock failure to consider objections to the new presentence report. in a shoulder holster. Moreover, the Glock was found – along The Dissent's assertion would be correct if Saikaly's appeal with $22,000 in cash – in the vehicle Saikaly was driving in before this Court were based on his § 2255 habeas petition, New York City. Finally, a loaded Winchester shotgun was see Chandler v. Jones, 813 F.2d 773, 777 (6th Cir. 1987), but seized from Saikaly’s bedroom when he was arrested. This this is not the case. evidence was more than enough to support the district court’s conclusion that Saikaly possessed a firearm. Here, following Saikaly's successful § 2255 motion, the district court ordered the Probation Department to prepare a Saikaly argues that he presented evidence “explaining” the "new" presentence report. The new presentence report presence of the firearms. The evidence that Saikaly presented differed in substance from the first report in that, for example, was that Lisa Gadsen owned the firearms. Saikaly’s brother for the first time 2.5587 kilograms of cocaine were attributed testified that Gadsen had driven the Blazer, and that Gadsen to Saikaly. See Part I. After the new report was filed, Saikaly put the Glock in the glove compartment. Saikaly’s brother timely filed his objections. Specifically, Saikaly objected to further testified that Gadsen gave the Winchester to him, the quantity of drugs that were attributed to him and to the which was followed by Saikaly’s mother’s testimony that she criminal history category he was assigned. The district court put the Winchester in Saikaly’s room. As the district court refused to consider these timely filed objections when it stated at the resentencing hearing, “with all due respect, I sentenced Saikaly, thereby disregarding the mandate of don’t think anybody in the courtroom believed what Federal Rule of Criminal Procedure 32(c)(1). Saikaly's direct [Saikaly’s brother and mother] had to say.” appeal followed. Saikaly also seems to rely on the fact that he did not own Once the district court ordered the creation of a new the firearms. This is irrelevant. The issue is not ownership, presentencing report, it was obligated to rule on Saikaly's but possession of the firearms. Here, a preponderance of the "unresolved objections" and make a "written record of such evidence indicated that Saikaly possessed the firearms during findings and determinations." Fed. R. Crim. P. 32(c)(1); see the drug-trafficking conspiracy. Saikaly failed to show that also United States v. Tackett, 113 F.3d 603, 613-14 (6th Cir. the firearms were not connected to the offense. 1997). Saikaly's appeal, which is based on the district court's

12 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 9

With respect to a district court’s obligations at sentencing, The district court properly applied the § 2D1.1(b)(1) Federal Rule of Criminal Procedure 32(c)(1) requires a enhancement. district court to make a factual finding for each contested factor of the presentence report. This circuit requires “literal B. Quantity of Drugs compliance” with the rule, because such factual findings help “to ensure that defendants are sentenced based on accurate Saikaly argues that the district court erred by failing to information and provide[ ] a clear record for appellate courts, consider his objections to the second presentence prison officials and administrative agencies who may later be investigation report regarding the amount of drugs attributed involved in the case.” United States v. Tackett, 113 F.3d 603, to him. The government counters that Saikaly waived this 613-14 (6th Cir. 1997).6 issue by failing to raise it on direct appeal and in his § 2255 motion. The district court should have considered Saikaly’s objections to the second, “new” presentence report. The The first presentence investigation report indicated that district court ordered the preparation of a new report without Saikaly was responsible for more than 5 but less than 15 limitation, and the new report set forth a statement regarding kilograms of cocaine. Saikaly did not make a definitive the amount of drugs that differed from the original objection to that finding. The district court, however, presentence report. Saikaly filed detailed objections to the construed one of his objections as pertaining to the amount of second presentence report prior to the resentencing hearing. drugs and stated that even if Saikaly was not personally Given the importance of the presentence report, district courts responsible for more than 5 kilograms of cocaine, “he still is should address any objections that a defendant, or that the liable for quantities based on those which were reasonably government might have, to a “new” report that contains foreseeable to be involved in by the members of the materially different information than the first presentencing conspiracy itself.” This was the extent of the district court’s report even if these objections come during resentencing. findings regarding the amount of drugs.3 This reasoning corresponds with this circuit’s de novo approach to resentencing following remand after direct In the second presentence investigation report, prepared appeal. after Saikaly’s successful § 2255 motion, the probation officer again stated that the government’s position was that Saikaly Saikaly may not prevail on the merits of his argument, was responsible for more than 5 but less than 15 kilograms of because it seems fairly obvious that Saikaly could reasonably cocaine. In that report, however, the probation officer also foresee that more than five kilograms of cocaine were calculated the amount of drugs attributable to Saikaly attributable to the conspiracy. Nonetheless, it is not for this individually by adding the quantities set forth in the overt acts listed in the superseding indictment. The report indicated that the amount, 2.5567 kilograms, was the amount of drugs 6 By analogy, Fed. R. Crim. P. 32(c)(3)(C), which requires district Saikaly believed was attributable to him. However, Saikaly courts to allow a defendant the right to allocution at sentencing, has been objected to that finding (2.5567 kilograms) arguing that not held not to apply at § 2255 resentencings. See Pasquarille, 130 F.3d at all of the drug amounts listed in the overt acts associated with 1223 (stating that “[t]here is nothing in § 2255 which provides that a him should be attributed to him. Saikaly stated that he was defendant has either an absolute right to be present or a right of allocution [at resentencing]”). There is, however, a distinguishing factor between this case and the Pasquarille case: the Pasquarille court noted that “there 3 are no disputed facts in this case.” Id. Here, we certainly have disputed The superseding indictment in the case set forth overt acts indicating facts, which requires a different result. that the conspiracy was responsible for well over 5 kilograms of cocaine.

10 United States v. Saikaly No. 98-3786 No. 98-3786 United States v. Saikaly 11

responsible for less than one kilogram of cocaine. Saikaly resentencing is to give the district court discretion in also objected to the government’s position: that he was balancing all the competing elements of the sentencing responsible for more than 5 but less than 15 kilograms. At calculus. See United States v. Campbell, 168 F.3d 263, 265 the resentencing hearing, the district court did not address the (6th Cir.), cert. denied, No. 99-5037, 1999 WL 462187 (U.S. issue of the amount of drugs, stating that the purpose of the Oct. 4, 1999). resentencing hearing was limited and, thus, the amount of drugs attributable to Saikaly was not at issue. Considering the foregoing, had this been a general remand after a direct appeal, the district court would have been At first glance, it would appear that the government is obligated to consider Saikaly’s objections to the presentence correct – that Saikaly waived objection to the amount of drugs report. This case, however, arose from a § 2255 motion, in attributable to him by failing to raise the issue in his direct which the district court ordered the probation department to appeal and in his § 2255 motion. But, there is a problem with prepare “a new presentence form.” The district court was not the government’s argument. Saikaly could not have objected operating from an order of remand from the court of appeals, to a presentence report that had not yet been prepared. as in the above-mentioned cases. Saikaly possibly could have objected to the amount of drugs set forth in the first presentence report; nonetheless, a The same concerns apply at resentencing whether it occurs question remains: what is the district court’s responsibility in following direct appeal or a § 2255 motion. In the context of addressing objections to a new and different presentence a § 2255 motion, this court has held that a district court can report prepared for a defendant’s resentencing? apply an enhancement to a drug sentence when resentencing a defendant after vacating a § 924(c) conviction.5 See This court has clearly stated that on remand following a Pasquarille, 130 F.3d at 1222. The Pasquarille court noted: direct appeal, a district court can consider de novo any arguments regarding sentencing if the remand order does not It is clear that the 924(c) offense and the underlying limit its review. See United States v. Jennings, 83 F.3d 145, offense are interdependent, and must be considered as 151 (6th Cir. 1996) (finding that “[t]he only constraint under components of a single comprehensive sentencing plan. which the district court must operate, for the purposes of Therefore, § 2255 gives the court jurisdiction and resentencing, is the remand order itself. Where the remand authority to reevaluate the entire aggregate sentence to does not limit the District Court’s review, sentencing is to be ensure that the defendant receives the appropriate de novo.”). A majority of4 circuits agree with a de novo sentence on the remaining count. approach to resentencing. See, e.g., United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir. 1994); United Id. (citation omitted). The government counters this States v. Cornelius, 968 F.2d 703 (8th Cir. 1992); United argument by stating that the present issues are not States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991); United “interdependent” as is the case with § 924(c) and U.S.S.G. States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989). § 2D1.1(b)(1). Despite this difference, however, Pasquarille The policy underlying the presumption of de novo makes it clear that a district court has the authority, on resentencing, to reevaluate “the entire aggregate sentence.”

4 Some circuits disagree, however, viewing a de novo approach to resentencing as an unwarranted “second bite of the apple.” See United 5 States v. Marmolejo, 139 F.3d 528, 531 (5th Cir.), cert. denied, 119 S. Ct. The government espoused this position with respect to the first issue 622 (1998); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). presented in this appeal.