United States v. Saikaly

ARTHUR J. TARNOW, District Judge,

concurring in part and dissenting in part.

*391TARNOW, District Judge.

I agree with the majority that Apprendi v. New Jersey. 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) does not provide Mr. Saikaly any relief. But aside from Apprendi, there is another issue raised by this appeal. The Appellant also argued in his brief that:

Inasmuch as the issue of the quantity of drugs to be attributed to Appellant was an issue specifically ordered by this Court to be addressed on remand, it is incomprehensible how the trial court could merely disregard that issue altogether. (Appellant’s Brief at 18).

In addressing this issue, though, the majority states, “[e]ven if the district court erred in fading to follow our instruction that it consider Saikaly’s objections to the presentence report’s finding of drug quantity, that error is patently harmless.”

I do not understand the use of “patently harmless.” A prior panel, in a published opinion, remanded this case to the District Court to make a factual determination about the drug quantity before Apprendi The Sixth Circuit in Saikaly II stated that:

The district court should have considered Saikaly’s objections to the second, “new” presentence report. The district court order 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.

207 F.3d 363, 370 (6th Cir.2000). The panel went on to say that:

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 Court to make that determination; the issue is whether the district court erred by failing to consider Saikaly’s objection. We find that it did.

Id.

There is no discussion of “harmless error” in the prior opinion. In fact, the panel seems to have explicitly considered the idea that the district judge would make the same determination, and they remanded anyway. Thus, in the absence of an en banc decision overturning the prior decision. this Court cannot affirm the district court’s decision to simply reimpose the prior sentence; the district judge did not make a factual determination as ordered.1 The law of the case doctrine mandates a remand for a factual determination on drug quantity. “The (law of the case] doctrine dictates that issues, once decided, should be reopened only in extraordinary circumstances.” U.S. v. Oglesby, 55 Fed.Appx. 353, 2003 WL 245358, *1 (6th Cir.2003) (unpublished) (Batchelder.Ryan, Lay, JJ.) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)).

It is true that Appellant’s attorney raised the drug quantity issue in his Statement of Issues for Review2 and then failed *392to assert it as a point heading in his brief. However, his failure to raise drug quantity as a point heading is not a reason to disregard the issue altogether. As noted, the drug quantity argument is asserted in the body of the brief. In addition, by failing to consider the issue due to attorney error, this Court is simply inviting another 28 U.S.C. § 2255 motion on a case that has already been before this Court three times. While the majority’s decision is expedient for now in that it does not involve a remand, in the long run, the case will likely be returning here on Appellant’s assertion that he received ineffective assistance of counsel. If, as the majority believes, the drug quantity is easily supported by the record, it would be both simpler and fairer to remand to the district court to make a factual determination in the first instance. Therefore, I respectfully dissent on the drug quantity issue.

. It should be noted that, on remand, the case was reassigned to District Judge Polster after the retirement of the original trial judge. Also, the Supreme Court’s decision in Apprendi was issued after this Court remanded the case. Finally, Appellant's counsel may have emphasized the Apprendi issue because he felt the drug quantity issue was not as strong. Thus, Judge Polster was forced to apply the new decision in Apprendi to an unfamiliar case at a time when the law on drug quantities was veiy much in flux. For example, the Supreme Court had not yet decided Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), where they decided that factors only affecting mandatory minimum sentences may be determined by the trial judge.

. Issue I in Appellant’s Statement of Issues for Review states:

*392Whether the trial court erred in re-sentencing the appellant to the same sentence previously vacated by this Court without malting a determination as to the amount of drugs that was attributable to the Appellant as directed by the Sixth Circuit Court of Appeals on remand and without holding a hearing on said issue.