In United States v. White, No. 07–2404 (6th Cir. Apr. 16, 2009), the panel of Judges Kennedy, Martin, and Cole affirmed the defendant’s conviction, but remanded for resentencing. A jury found the defendant guilty of several cocaine and firearm offenses and the district court imposed a life sentence. The panel affirmed the district court’s discovery and evidentiary rulings and denied the defendant’s claims regarding prosecutorial misconduct.
The panel did, however, remand for resentencing. The defendant had argued that his base offense level should be 36 rather than 38 based on the amount of cocaine attributable to him. Under plain-error review, the panel found that the amount of drugs calculated was too high. The witness testimony on the issue was equivocal and a "drug quantity estimate must ‘err on the side of caution and likely underestimate the quantity of drugs actually attributable to the defendant.’" The panel decided to exercise its discretion to remand for plain error because the sentence was a life sentence. Had the base offense level been 36 (and total offense level 42), the range would have been 360 to life, a big difference for a 29-year-old defendant.