Sixth Circuit Establishes a “Substantial Rights” Harmless-Error Standard for Rule 605 Judicial “Testimony” (and Remands Where a Mandatory Guideline Reduction Was Omitted)

1. Introduction

United States v. Saruba Asante Smith (consolidated appeals involving Saruba Asante Smith, Khari Qunarll Smith, and Chanel Lashae Logan) arises from a jail-initiated drug-trafficking scheme that law enforcement monitored from inception through controlled buys and subsequent seizures.

While incarcerated on an unrelated federal drug case, Khari recruited Logan to supply drugs to an undercover buyer (“Jimmy”) introduced through a cooperating inmate. Logan—who maintained an apartment in Lexington, Kentucky, where she spent time with her on-and-off girlfriend Saruba—completed a controlled sale in Saruba’s presence and later another sale without her. Police later intercepted Logan and Saruba transporting large quantities of meth and fentanyl and, after searching Logan’s apartment, discovered additional drugs and trafficking paraphernalia.

The appeal presented several recurring federal criminal issues:

  • Sentencing procedure (use of “criminal history” inferences; application of the “drug house” enhancement; omission of a mandatory guideline decrease following a role reduction).
  • Sufficiency of the evidence (phone-facilitation under 21 U.S.C. § 843(b); aiding-and-abetting distribution under 18 U.S.C. § 2).
  • Judicial conduct at trial (whether a judge’s clarifying questions amounted to prohibited “testimony” under Federal Rule of Evidence 605 and/or denied due process by conveying bias).
  • Consecutive sentencing explanation (adequacy of the district court’s reasoning for running a sentence consecutive to an undischarged federal term).

2. Summary of the Opinion

The Sixth Circuit (Nalbandian, J.) largely affirmed:

  • Logan: conviction and 360-month sentence affirmed. No plain procedural error from the district court’s remarks; the “drug house” enhancement under U.S.S.G. § 2D1.1(b)(12) was properly applied; within-Guidelines sentence was substantively reasonable.
  • Khari: conviction and 150-month consecutive sentence affirmed. Sufficient evidence supported the § 843(b) conviction; no clear error in denying a mitigating-role reduction; the district court adequately explained consecutiveness.
  • Saruba: conviction affirmed, but sentence vacated and remanded. The panel held the district court’s Starbucks-location questioning violated Rule 605, yet the error was harmless. However, the district court committed plain Guidelines-calculation error by granting a mitigating-role reduction under U.S.S.G. § 3B1.2 while failing to apply the additional mandatory two-level decrease under U.S.S.G. § 2D1.1(a)(5).

Notably, the panel expressly stated that it had not previously applied a “substantial-rights” harmless-error analysis to Rule 605 in a published decision, and it did so here.

3. Analysis

3.1. Precedents Cited

A. Sentencing procedure, “plain error,” and reliance on misinformation

  • United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc): supplied the four-part plain-error framework used for unpreserved procedural challenges (notably Logan’s and Saruba’s Guidelines-calculation issue).
  • United States v. Adams, 873 F.3d 512 (6th Cir. 2017): framed when reliance on “materially false or unreliable” information makes a sentence procedurally unreasonable and required proof that such information actually served as the basis for the sentence. The panel used Adams to reject Logan’s claim that the court “imputed” an extensive criminal past; the remarks were treated as reasonable inferences from record evidence (sophisticated trafficking, large volumes, lack of legitimate income).
  • United States v. Messer, 71 F.4th 452 (6th Cir. 2023) and United States v. Matthews, 31 F.4th 436 (6th Cir. 2022): reinforced that appellate courts do not disturb permissible factfinding supported by the record and do not credit unsupported assertions over evidence.

B. Drug-premises (“drug house”) enhancement under U.S.S.G. § 2D1.1(b)(12)

  • United States v. Taylor, 85 F.4th 386 (6th Cir. 2023): provided the bifurcated standard of review (clear error for factfinding, de novo for Guidelines interpretation).
  • United States v. Florence, 150 F.4th 773 (6th Cir. 2025): directed de novo review where the dispute centers on the “primary use” prong.
  • United States v. Johnson, 737 F.3d 444 (6th Cir. 2013): recognized a knowledge requirement for the enhancement.
  • United States v. Tripplet, 112 F.4th 428 (6th Cir. 2024) and United States v. Bell, 766 F.3d 634 (6th Cir. 2014): supplied practical “business-like home” guideposts (tools of the trade, weapons, dispersed evidence, volume of drugs). The panel applied these factors to conclude Logan’s apartment functioned as a trafficking/manufacturing hub despite her temporal arguments.
  • United States v. Stokes, 2024 WL 2106327 (6th Cir. May 10, 2024), United States v. McFarland, 2021 WL 7367157 (6th Cir. Oct. 4, 2021) (order): supported the panel’s rejection of Logan’s “lease-term frequency” theory and illustrated that even short windows of use can suffice when corroborated by the nature/scale of evidence.

C. Substantive reasonableness, disparity arguments, and deterrence

  • United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018): defined substantive-reasonableness challenges as “too long” claims based on factor-weighting.
  • United States v. Gardner, 32 F.4th 504 (6th Cir. 2022): supplied the presumption of reasonableness for within-Guidelines sentences and the abuse-of-discretion standard.
  • United States v. Glover, 167 F.4th 417 (6th Cir. 2026): was central to rejecting Logan’s co-defendant disparity argument by reiterating that § 3553(a)(6) targets national disparities among similarly situated defendants, not co-defendant differences.
  • United States v. Phinazee, 515 F.3d 511 (6th Cir. 2008): supported both (i) the view that warranted differences are not “unwarranted disparities,” and (ii) the permissibility of considering general deterrence.
  • United States v. Hymes, 19 F.4th 928 (6th Cir. 2021) and United States v. Swafford, 639 F.3d 265 (6th Cir. 2011): undercut Logan’s attempt to use § 3553(a)(6) to attack a within-Guidelines sentence by emphasizing that the Guidelines already serve the anti-disparity function and that below-Guidelines sentences can increase disparities.
  • United States v. Frei, 995 F.3d 561 (6th Cir. 2021): reinforced limited appellate role in reweighing § 3553(a) factors.

D. Sufficiency of the evidence (facilitation and aiding/abetting)

  • United States v. Fisher, 648 F.3d 442 (6th Cir. 2011) and Jackson v. Virginia, 443 U.S. 307 (1979): provided the governing sufficiency standard (viewing evidence in the light most favorable to the prosecution; rational trier of fact).
  • United States v. Paige, 470 F.3d 603 (6th Cir. 2006): reiterated that appellate courts do not reassess witness credibility on sufficiency review.
  • United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984); United States v. Burns, 298 F.3d 523 (6th Cir. 2002); United States v. Wheat, 988 F.3d 299 (6th Cir. 2021): formed the core § 843(b) framework—elements, “make easier” facilitation, and the panel’s emphasis that the jury could find the phone use was knowing and intended to facilitate a drug felony (including another person’s offense and including conspiracy as the predicate felony).
  • Rosemond v. United States, 572 U.S. 65 (2014) and United States v. Sadler, 24 F.4th 515 (6th Cir. 2022): supplied the aiding-and-abetting intent/participation formulation (“wished to bring about,” “sought to make succeed”), which the panel applied to Saruba’s conduct during the controlled buy.
  • United States v. Torres-Ramos, 536 F.3d 542 (6th Cir. 2008); United States v. Valdez, 611 F. App’x 330 (6th Cir. 2015); United States v. Gaspar, 394 F. App’x 259 (6th Cir. 2010): were used to show that presence plus behavior around a transaction—especially “suspicious behavior” near a drug deal—can supply sufficient circumstantial evidence, undermining Saruba’s “mere presence/no benefit” framing.

E. Mitigating role and consecutive sentencing

  • United States v. Guerrero, 76 F.4th 519 (6th Cir. 2023): provided the “substantially less culpable than the average participant” standard for § 3B1.2 reductions.
  • United States v. Mosley, 53 F.4th 947 (6th Cir. 2022) and United States v. Lanham, 617 F.3d 873 (6th Cir. 2010): emphasized deferential clear-error review and the district court’s “wide berth” in role assessments.
  • United States v. Ednie, 707 F. App’x 366 (6th Cir. 2017): warned that treating “indispensability” as dispositive is legal error; the panel relied on this to approve the district court’s approach because it acknowledged indispensability is “not determinative” and then applied the proper factors.
  • United States v. Morris, 71 F.4th 475 (6th Cir. 2023); United States v. Sears, 32 F.4th 569 (6th Cir. 2022); United States v. Mitchell, 107 F.4th 534 (6th Cir. 2024); United States v. Brown, 131 F.4th 337 (6th Cir. 2025); United States v. Johnson, 553 F.3d 990 (6th Cir. 2009): collectively anchored the panel’s treatment of consecutive sentencing—courts must make the rationale “generally clear,” but need not conduct an additional duplicative § 3553(a) analysis; consecutiveness may serve an “incremental penalty” purpose.

F. Rule 605 judicial “testimony,” harmless error, and due process bias

  • United States v. Valentine, 70 F. App’x 314 (6th Cir. 2003): supplied the de novo review premise (because Rule 605 says no objection is required) and the idea that harmless-error analysis follows.
  • Fed. R. Crim. P. 52(a) and United States v. Dominguez Benitez, 542 U.S. 74 (2004): guided the “substantial rights” harmlessness inquiry (“substantial and injurious effect or influence”).
  • United States v. Davila, 569 U.S. 597 (2013): was used to allocate the burden to the government to show harmlessness under Rule 52(a).
  • United States v. Andasola, 13 F.4th 1011 (10th Cir. 2021): supported the panel’s choice to apply a substantial-rights harmlessness framework to Rule 605 error and noted other circuits’ alignment.
  • United States v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007) and Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970): informed the key line between (i) permissible inference/comment based on record evidence and (ii) impermissible insertion of new facts from the judge’s personal knowledge or observation.
  • Fed. R. Evid. 614(b) and United States v. Blanchard, 542 F.3d 1133 (7th Cir. 2008): clarified that judges may question witnesses, but may not “add to the evidence by assuming the role of a witness.”
  • United States v. Smith, 831 F.2d 657 (6th Cir. 1987): supported the panel’s conclusion that an instruction that judicial questions are not evidence can cure “conceivable prejudice,” particularly when the government’s case rests on strong independent proof.
  • Bracy v. Gramley, 520 U.S. 899 (1997) and Liteky v. United States, 510 U.S. 540 (1994): supplied the due process bias standard (“no actual bias”; remarks must reveal such “deep-seated favoritism or antagonism” that fair judgment is impossible).
  • United States v. Owens, 159 F.3d 221 (6th Cir. 1998) and Craddock v. FedEx Corp. Servs., Inc., 102 F.4th 832 (6th Cir. 2024): governed plain-error review for unpreserved judicial-bias claims and the threshold for when a judge’s conduct leaves the jury with an impression of probable guilt.
  • United States v. Evans, 994 F.2d 317 (7th Cir. 1993): supported the conclusion that skeptical clarifying questions do not necessarily convey bias when accompanied by proper jury instructions.

G. Guidelines miscalculation and plain error consequences

  • United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020) and Molina-Martinez v. United States, 578 U.S. 189 (2016): drove the remand for Saruba. They establish that Guidelines-range errors usually satisfy the third and fourth prongs of plain error absent record evidence the judge would have imposed the same sentence anyway; the key remaining question is whether the error was “obvious or clear.”
  • United States v. Davison, 766 F. App’x 232 (6th Cir. 2019): supported the panel’s refusal to decide substantive reasonableness for a sentence it vacated and for a future sentence not yet imposed.

3.2. Legal Reasoning

A. Logan: record-based inferences, drug premises, and within-Guidelines deference

The panel treated the district judge’s “sly customer”/“not her first engagement” remarks not as speculation about uncharged crimes, but as inferences from the evidentiary record—Logan’s own statements about supply and volume, the sophistication of her tools (hydraulic press, blender jar), the gun, and the absence of legitimate income. Under United States v. Adams, that meant no materially false or unreliable information was used as the basis for sentencing.

On the drug-premises enhancement, the court applied the guideline commentary’s “primary or principal use” test and relied on Sixth Circuit guideposts emphasizing “tools of the trade” and “sheer volume.” Logan’s temporal argument failed because the enhancement’s applicability can be supported by the character of the premises and the scope of trafficking evidence even during a relatively short investigative window.

On substantive reasonableness, the court emphasized that § 3553(a)(6) concerns national disparities, not co-defendant comparisons (United States v. Glover), and that the Guidelines already mitigate national disparity (United States v. Hymes). Deterrence was considered but not overweighted.

B. Khari: § 843(b) facilitation and role assessment

The panel applied the § 843(b) framework from United States v. McLernon, United States v. Burns, and United States v. Wheat, focusing on whether Khari’s phone use “made easier” a drug felony and was knowing. The evidence—his “set something up” statement, his call to Logan, and his coaching to invoke “ATL’s people”—permitted a rational jury to find knowing facilitation. Attacks on the cooperator’s reliability were treated as credibility arguments foreclosed on sufficiency review (United States v. Paige).

On mitigating role, the panel found no clear error: Khari brokered the introduction and facilitated the transaction; he conceded he was “key to setting it up.” The district court did not commit the legal error described in United States v. Ednie because it acknowledged indispensability is not determinative and grounded denial in the guideline factors.

On consecutiveness, the panel applied the Sixth Circuit’s “generally clear rationale” requirement (United States v. Sears; United States v. Brown) and found the explanation sufficient: Khari committed the new conduct while awaiting penalties in another case, and concurrency would “unduly depreciate” seriousness.

C. Saruba: Rule 605 violation found, but harmless; Guidelines omission required remand

The panel drew a firm line: a judge may clarify based on record evidence or inferences, but cannot inject facts rooted in personal knowledge. Here, the “number of Starbucks” along the route was not in evidence and could not be inferred; thus, the questioning “ran afoul” of Fed. R. Evid. 605.

The doctrinal significance is the court’s express adoption, in a published decision, of a Rule 52(a) “substantial rights” harmlessness standard for Rule 605 error. The government bore the burden to show harmlessness (United States v. Davila), and the panel found the error harmless because (i) the government’s strongest proof was the video of Saruba retrieving and handing over the cash, and (ii) the jury was instructed that judicial questions are not evidence (United States v. Smith).

The due process bias claim was reviewed for plain error and rejected under Liteky v. United States: the questioning may have been skeptical, but it did not reflect “deep-seated favoritism or antagonism,” and the jury instruction further reduced any risk that the jury would adopt the judge’s view.

Finally, sentencing required remand because the district court granted a mitigating-role adjustment under U.S.S.G. § 3B1.2 but failed to apply the mandatory two-level decrease under U.S.S.G. § 2D1.1(a)(5) for a base offense level of 32. Under Molina-Martinez v. United States and United States v. Cavazos, absent an indication the same sentence would have been imposed, this type of Guidelines error ordinarily affects substantial rights and warrants correction; the remaining question was whether the error was obvious—which it was given the guideline’s unambiguous text.

3.3. Impact

A. A published Sixth Circuit framework for Rule 605 error

The opinion’s most “new law” feature is procedural: it squarely applies a Rule 52(a) substantial-rights harmless-error analysis to Rule 605 violations in a published Sixth Circuit decision. Practically, this:

  • Confirms de novo review for Rule 605 claims (no objection required), followed by harmlessness analysis.
  • Places the burden on the government to prove harmlessness.
  • Signals that curative instructions and strong independent evidence (e.g., video of the dispositive act) will often carry the day for harmlessness.

B. Sentencing practice: mandatory guideline “stacking” after role reductions

The remand underscores a common pitfall: when a court grants a mitigating-role adjustment under § 3B1.2, it must also check whether § 2D1.1(a)(5) mandates an additional two-level decrease for defendants at base offense level 32. This is a mechanical, text-driven requirement; omission is “obvious” plain error in typical cases.

C. Drug-premises enhancement: “short duration” arguments remain difficult

The Logan holding suggests that defendants will face an uphill climb when the premises contain large quantities of drugs and manufacturing/packaging tools, even if the government’s proven window of activity is only months and even if no sales occurred at the premises during surveillance.

D. Consecutive sentencing: explanation must be clear but not duplicative

For defendants with undischarged terms, the opinion reinforces that appellate review will focus on whether the district court made a generally clear statement of rationale and tied it to § 3553(a) considerations, without demanding a second, separate analysis solely for consecutiveness.

4. Complex Concepts Simplified

  • Rule 605 (“judge can’t testify”): The judge may ask questions to clarify evidence, but cannot add new facts from personal knowledge (e.g., local geography/business locations not in evidence).
  • Harmless error (Rule 52(a)): Even if the trial court made a legal mistake, the conviction stands if the error did not have a substantial, verdict-affecting impact. Here, video evidence and a “questions are not evidence” instruction made the Rule 605 error harmless.
  • Plain error: For issues not preserved by objection, the appellant must show an obvious error that affected substantial rights and the fairness of proceedings. Guidelines-range miscalculations often satisfy these requirements under Molina-Martinez v. United States.
  • § 843(b) phone facilitation: Using a phone to “make easier” a felony drug offense, knowingly and intentionally, is enough—brokering contacts and coaching a dealer can qualify.
  • Drug premises enhancement: A home/apartment can be treated as a drug premises if drug manufacturing/distribution is a primary use, shown by volume, equipment, weapons, and layout—sales need not occur on-site.
  • Mitigating role: A defendant gets a reduction only if substantially less culpable than the average participant; being “indispensable” does not automatically bar relief, but active brokering/planning often defeats it.

5. Conclusion

United States v. Saruba Asante Smith is a multi-issue affirmance/remand with two standout takeaways. First, the Sixth Circuit held that the trial judge’s Starbucks-route questioning constituted a Rule 605 violation, and—importantly in a published decision—applied a Rule 52(a) “substantial rights” harmless-error analysis to uphold the conviction. Second, it ordered resentencing where the district court failed to apply the mandatory two-level decrease in U.S.S.G. § 2D1.1(a)(5) after granting a mitigating-role reduction, reinforcing that Guidelines mechanics remain central on plain-error review.