Failure to object to PSR facts constitutes Booker "admission"

In a per curiam unreported opinion, United States v. Bondurant, No. 04-5935, (6th Cir. 7/13/2005)(Boggs, C.J., Gibbons, C.J., Quist, D.J. (WD Mich.)), a panel of the Sixth Circuit held that Bondurant's Sixth Amendment rights were not violated under United States v. Booker, __U.S.__, 125 S.Ct. 738 (2005), because there were no factual objections to the presentence report. The panel affirmed the district court's Guideline applications. Yet, the panel vacated and remanded the sentence "for resentencing under Booker." The panel, citing to United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005), found that there was plain error in the sentence because it was given "under the presumption that the Guidelines were mandatory."

The panel asserts that there were no objections to the facts contained in the PSR and that these "admissions" properly lead to an enhanced advisory Guideline range. In footnote 1 of the opinion, the panel asserts that Bondurant's objections "rested upon a Blakely argument and not that the facts contained in the presentence report were inaccurate." Id. n. 1. The panel cited, in part, to the Sixth Circuit's recent opinion in United States v. Williams, __ F.3d__, 2005 WL 1384355, at *2 (6th Cir. June 9, 2005), in finding that Bondurant "admitted the facts that gave rise to the enhancements." Even if the Blakely objection was insufficient to challenge the facts of the PSR, the panel never discusses how Booker contemplates that the failure to object to facts contained in a PSR are proper admissions sufficient to warrant Guideline enhancements under the Sixth Amendment.

Furthermore, the panel's citation to Williams is inaccurate. Williams pled to an indictment that contained the facts of the enhancement. Specifically, Williams had admitted to using a computer in the commission of his offenses, a fact that was charged in the indictment, and which resulted in a 2 level enhancement under the Guidelines. Williams, at *3. Bondurant, on the other hand, made a Sixth Amendment objection to the process in which the facts were determined under the then existing precedent of Blakely v. Washington, __U.S.__, 124 S.Ct. 2531 (2004). Thus, Bondurant squarely contested the procedure used by the district court to find that these facts were indeed accurate, which can hardly be characterized as an admission or failure to object.

This case, although unreported, raises serious questions about what can be considered an admission under Booker. This is an area that has not received much attention in the Sixth Circuit, yet, but surely will in the future. Practitioners would be wise to write PSR objections with this unreported case in mind.