Sentencing; Calculation of drug quantity; Whether there was competent record evidence to support the district court’s drug-quantity determination; “Relevant conduct” under USSG § 1B1.3(a)(1)(B); The jury’s determination as to the drug quantity; Request for reassignment to another judge on remand

[This appeal was from the ED-MI.] The court vacated defendant-McReynolds’s sentence and remanded for resentencing, holding that the district court erred by attributing the “conspiracy-wide drug quantity” to him based only on circumstantial evidence. But it declined to reassign the case on remand where the district court’s erroneous decision was not based on any improper conceptions as to the merits of defendant’s claims and there was no indication of bias. This was defendant’s second appeal as to his sentence for conspiring to distribute and to possess with intent to distribute a controlled substance. In his previous appeal, he argued the district court erred by attributing to him a “substantially higher” quantity of drugs than the jury had attributed to him. The district court’s quantity calculation increased the low end of the advisory guidelines range by nearly 5 years, and he was sentenced to 151 months in prison and 6 years of supervised release. The court previously vacated that sentence and remanded for resentencing based on the district court’s failure to explain the higher drug amounts. On remand, the district court did not change its drug-amount calculation, explaining that it believed the PSR contained the accurate drug quantity, and that the jury had been “confused.” It then sentenced defendant to 145 months based on his “post-sentencing positive conduct.” He again appealed, requesting that the district court be required to adopt the jury’s quantity calculation, and that the case be reassigned to a different judge on remand. After reviewing the testimony of defendant’s co-conspirator and his former customer, the court held that there was insufficient competent evidence in the record to support the district court’s drug-quantity determination. It concluded the evidence only established that he knew about the conspiracy, and not that he participated in it. Under § 1B1.3(a)(1)(B), he could not be liable for the acts of others where there was insufficient evidence that he participated in the conspiracy. And the government did not “establish modus operandi, coordination of activities among schemers, or a pooling of resources or profits.” The court also found that the record did not support the district court’s characterization of the jury as “confused” by their instructions. But it declined to reassign the case on remand under the circumstances.