Monday, May 30, 2005

Sixth on Booker

SIXTH ON BOOKER

[NOTE: This is an updated version of a previously posted article]

On January 15, 2005, the United States Supreme Court threw a loop into federal criminal sentencing. In United States v. Booker and United States v. Fanfan, 125 S.Ct. 738 (2005), the Court made clear that Sixth Amendment applies to the federal sentencing guidelines scheme that was created by the Sentencing Reform Act of 1984. The Court then severed and invalidated 18 U.S.C. § 3553(b), the provision within the Sentencing Reform Act that required judges to impose sentences within the sentencing guidelines ranges, except in limited circumstances.

In the aftermath of Booker, the Sixth Circuit has issued a steady stream of opinions in cases with Sixth Amendment issues. This article surveys the key published decisions issued by the Sixth Circuit through May 30, 2005.

Plain Error
Starting in United States v. Davis, the Sixth Circuit repeatedly finds that plain error exists where the district court imposed sentencing guideline enhancements based solely on judicial factfinding under the then-mandatory sentencing guidelines scheme. See United States v. Davis, 397 F.3d 340 (6th Cir. 2005); United States v. Oliver, 397 F.3d 369 (6th Cir. 2005); United States v. Barnett, 398 F.3d 516 (6th Cir. 2005); United States v. Milan, 398 F.3d 445 (6th Cir. 2005); United States v. Yagar, Nos. 5151/5264 (6th Cir. 4/18/05); United States v. Jones, No. 03-6239 (6th Cir. 2005); United States v. Alva, No. 03-5175 (6th Cir. 4/26/05); United States v. Pugh, 405 F.3d 390 (6th Cir. 2005); United States v. Frederick, No. 03-1895 (6th Cir. 5/5/05); United States v. Harmon, No. 03-1925 (6th Cir. 5/12/05); United States v. Davidson et al., Nos. 03-6544/6549 (6th Cir. 5/18/05).

Both Oliver and Barnett provide in-depth analysis of the requirements for appellate review and remand of an otherwise forfeited error: (1) there must be error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Oliver, 397 F.3d at 378. Barnett makes clear that prejudice should be presumed, particularly when a defendant received a sentence at the bottom of the mandatory sentencing guideline range. Barnett, 398 F.3d at 398; see also, United States v. Moncivais, No. 02-6457 (6th Cir. 3/24/05); United States v. Hamm, No. 03-5658 (6th Cir. 3/8/05); United States v. Sanders, No. 04-3181 (6th Cir. 4/20/05). Even when a defendant received a mid-range sentence, the Booker error affected substantial rights and affects the fairness, integrity, and public reputation of the judicial proceedings. United States v. Jackson, No. 03-2493 (6th Cir. 3/24/05); United States v. Hudson, No. 04-5096 (6th Cir. 4/22/05) (sentence imposed under mandatory scheme that was slightly above the midpoint of the sentencing range is not "clear and specific evidence" that court would not impose lower sentence under advisory scheme).

Even in cases where the judge’s findings of fact appears to be supported by the record, the case still should be remanded for re-sentencing so that each party may "argue for the exercise of the district court’s discretion" under the newly advisory scheme. United States v. Hines, 398 F.3d 713 (6th Cir. 2005); see also, United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (remanding where it is "at least possible" that judge would have sentenced defendant to lower sentence under an advisory guideline scheme); United States v. McCraven,__F.3d__, 2005 U.S. App. LEXIS 4450 (6th Cir. 3/17/05)(finding it prudent to remand under new advisory guidelines, even though defendant had admitted facts underlying enhancement); United States v. Poole, No. 04-5016 (6th Cir. 5/10/05) (remanding for resentencing even though all recommended enhancements were based on criminal history).

Only in rare cases will the presumption of prejudice, which requires a remand for re-sentencing, be overcome. In United States v. Webb, the presumption of prejudice was rebutted by the clear and specific evidence in the record: (1) Webb merely received the sentence he bargained for with the specific recommendations in his agreement; (2) at sentencing, the district court referred to Webb as a "menace" and considered an upward departure; and (3) the court sentenced Webb to the maximum sentence possible in the applicable guideline range. Webb, __F.3d__, 2005 U.S. App. LEXIS 5420 (6th Cir. 4/6/05). The Webb court categorized this as an "exceptional" case, and it is unlikely that these ugly facts will surface in most other cases.1

The plain error determination is important for the many defendants who did not make Booker-type objections at the district court, but now have cases pending on appeal. If a defendant has a genuine Booker issue, but is raising it for the first time on appeal, he should still get relief. If defense counsel has not raised the Booker claim in his appellate brief already, he should file a supplemental letter brief pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure raising all Booker claims. See Oliver, 397 F.3d 369, fn.1 (6th Cir. 2005) (where defendant had not raised Sixth Amendment issues in his briefs but filed 28(j) letters after Supreme Court decided Blakely and Booker); United States v. McCraven,__F.3d__ , 2005 U.S. App. LEXIS 4450 (March 17, 2005) (same). Although "generally suspicious" of new claims raised for the first time at oral argument, the Sixth Circuit has considered at least one Booker claim raised only at oral argument. United States v. Trammel, No. 03-6652 (6th Cir. 4/8/05).

Prior Record Enhancements
Citing Booker’s exception for "the fact of prior conviction," and without specifying how broad or narrow that term is, the Sixth Circuit held that sentencing enhancements based solely on "criminal history" do not violate the Sixth Amendment. United States v. Poole, No. 04-5016 (6th Cir. 5/10/05); see also United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (finding no Sixth Amendment violation where defendant challenged the failure to submit prior convictions to jury for determining whether he qualified as Armed Career Criminal).

Mandatory Minimums
Already, the Sixth Circuit has recognized that Booker concerns arise in connection with some statutorily mandated minimum sentences. In United States v. Harris, the Sixth Circuit found that in order to impose an enhanced mandatory minimum sentence based on the type of firearm involved under 18 U.S.C. § 924(c)(1)(A), the type of firearm must be charged in the indictment and proven to a jury beyond a reasonable doubt. United States v. Harris, 397 F.3d 404 (6th Cir. 2005).

Impact of Plea Agreements
Plea agreements entered pre-Booker may affect a defendant’s ability to seek relief for an otherwise viable claim. Whether a defendant "admitted" a fact (and therefore obviated the need for jury fact-finding), may depend on the specific wording of plea agreement. See United States v. Murdock, 398 F.3d 491 (6th Cir. 2005) (defendant’s factual admissions in plea agreement concerning amount of loss were sufficient to authorize district court’s sentencing determination); Webb, 2005 U.S. App. LEXIS 5420 (6th Cir. 4/6/05)(finding that the district court properly applied sentencing enhancements where the defendant had admitted those facts by way of his recommendations in the plea agreement and factual admissions at the plea colloquy).

In one case where a defendant’s plea agreement stipulated to his status as a career offender and waived his right to appeal, the Sixth Circuit rejected the defendant’s argument that he should be re-sentenced in accordance with Booker. United States v. Bradley,__ F.3d __, 2005 WL 549087 (6th Cir. March 10, 2005). The Bradley Court explained that even when "developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature." Id; see also, United States v. Hunyady, No. 04-1325 (6th Cir. 5/17/05) ("because Hunyady has waived his right to file an appeal from his sentence, we need not consider any claims that he might otherwise have had" under Booker)

"Reasonableness" of the Sentence
In determining the reasonableness of the sentence imposed, the appellate court must consider the length of the sentence, the factors evaluated, and the procedures employed by the district court in reaching its sentence. So, a sentence is unreasonable if the district court fails to consider the applicable guidelines range or other factors listed under 18 U.S.C. 3553(a). In Webb, the Sixth Circuit declined to set out a rigid definition of "reasonable" or specific procedures that a district judge must employ. Finding that nothing suggested that Webb's sentence was unreasonable, the court noted that the district judge properly calculated and considered the guidelines; properly considered other pertinent 3553(a) factors; took into account other characteristics of Webb such as his lack of education and substance abuse problems; and did not appear to select the sentence arbitrarily, base the sentence on impermissible factors, or give unreasonable weight to any pertinent factor. United States v. Webb, __F.3d__, 2005 U.S. App. LEXIS 5420 (6th Cir. 4/6/05).

Webb also rejects the government’s favorite post-Booker argument– that a sentence within the applicable guideline range is per-se "reasonable." In Footnote 9, the Webb majority states that "[w]hile we decline to indicate what weight the district courts must give to the appropriate Guidelines range, or any other Section 3553(a) factor, we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of "reasonableness". . . but is also inconsistent with the Supreme Court's decision in Booker, as such a standard 'would effectively re-institute mandatory adherence to the Guidelines.'" (citations omitted).

To facilitate appellate review for reasonableness, the district court must provide sufficient analysis of its reasons for the sentence imposed. In United States v. Jackson, No. 04-3074 (6th Cir. 5/24/05), the Sixth Circuit remanded the case for further findings, in addition to the list of seven reasons already provided by the district court, so it could determine whether the sentence of three years’ probation was reasonable (the original guideline range was 27-33 months). The Jackson panel indicated that "Booker requires an acknowledgment of the defendant’s applicable Guidelines range as well as a discussion of the reasonableness of a variation from that range."

Reasonableness of Revocation Sentences
Under pre-Booker law, the Sixth Circuit upheld sentences imposed for revocations of supervised release unless they were "plainly unreasonable." In United States v. Johnson, No. 04-1538 (6th Cir. 4/15/05), the Court considered whether it instead should apply Booker’s new "reasonableness" standard to its review of supervised release violations. Because the 18 month sentence was appropriate under either standard applied, the Sixth Circuit declined to decide whether or not it should adopt a new standard for supervised release violations.Restitution
The Sixth Circuit recently acknowledged that "there is some question as to whether Booker requires us to reconsider our analysis of criminal defendant’s jury trial rights with respect to restitution orders." United States v. McDaniel, 398 F.3d 540 (6th Cir. 2005).

Collateral Relief
So far, the news from the Sixth Circuit is mixed for defendants attacking their pre-Booker sentences through a Motion To Vacate or Correct pursuant to 28 U.S.C. § 2255. In Humphress v. United States, the Sixth Circuit concluded that Booker created a new rule of criminal procedure which does not apply retroactively to convictions that have become final on direct appeal. Humphress v. United States, 398 F.3d 855 (6th Cir. 2005). However, if a defendant’s case is still pending on direct appeal when the law changes favorably, and defense counsel fails to argue the new change in law, the attorney may be deemed ineffective. Ballard v. United States, __F.3d__ , 2005 WL 549087 (6th Cir. March 10, 2005).

Other Cases
In United States v. Wesley, No. 04-1626 (6th Cir. 5/18/05), a Sixth Circuit panel declined an opportunity to determine whether the imposition of a career-offender enhancement under U.S.S.G. § 4B1.1 violates the Sixth Amendment.

United States v. Gibson, Nos. 03-6592-95 et al (6th Cir. 5/24/05), which involved a 28 count multi-defendant indictment and jury trial for illegal coal mining operations, contained a number of sentencing enhancement issues, but strangely, no Booker analysis.

In addition to the decisions discussed above, the Sixth Circuit continues to issue numerous unpublished post-Booker decisions which may contain situations analogous to those in your particular cases. AFPD Sumter Camp of Nashville has posted to this blog a detailed analysis of unpublished post-Booker decisions.

Tuesday, May 17, 2005

BOOKER FOLLOW-UP IN THE SIXTH CIRCUIT

Analytical Foundation

Three weeks after the Supreme Court issued its decision in Booker, the Sixth Circuit issued a published opinion discussing the appropriateness of remand and discussing "plain error" in the context of Booker claims. United States v. (David) Oliver, 397 F.3d 369 (6th Cir. 2005). Oliver’s Guidelines had been increased 2-levels at sentencing for obstruction of justice. In reviewing the elements of plain error analysis, the Court found, first, that error had occurred since a Sixth Amendment violation had increased Oliver’s sentence higher than it otherwise would’ve been. Id. at 378-79. Secondly, the Court found that the error was "plain or obvious" because, although it wasn’t at all clear at the time of sentencing that the mandatory Guidelines were unconstitutional, it was sufficient that the error be obvious at the time of appellate consideration. Id. at 379. Third, the plain error affected Oliver’s substantial rights because the Sixth Amendment violation caused him to get a greater sentence than the Guidelines would otherwise have allowed. Id. at 379-80. Finally, the Court of Appeals found that a "sentencing error that leads to a violation of the Sixth Amendment by imposing a more severe sentence than is supported by the jury verdict ‘would diminish the integrity and public reputation of the judicial system [and] would diminish the fairness of the criminal sentencing system.

In United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), the Court of Appeals was forced to address the standard for review of "plain error" under a Booker claim where there was no Sixth Amendment violation. Barnett was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). While his Guidelines originally contained several enhancements that would’ve been subject to a Sixth Amendment challenge, they were rendered moot when it was found that Barnett was an Armed Career Criminal which, therefore, automatically increased his Guidelines based, not on fact determinations subject to challenge under Booker, but on his prior criminal record. The district court sentenced him in the middle of the range.

First, the Court of Appeals, noted that the Supreme Court had found no Sixth Amendment violation in Fanfan’s case, but had still remanded it for re-sentencing. Since Booker did not change the calculus for using a defendant’s prior criminal record to increase his sentence, there could be no Sixth Amendment violation in Barnett’s case. Since no Sixth Amendment violation was required, however, the Court found that the first prong of the plain error analysis was satisfied by the fact that the district court had treated the Guidelines as mandatory at Barnett’s sentencing. Consistently with Oliver, the Court then found that the second prong was satisfied by the fact that the error became clear during the appellate process.

It is in the discussion of the third prong of the plain error analysis that the Court broadened the impact on defendants on appeal raising Booker claims for the first time. In addressing whether Barnett had demonstrated that the plain error affected substantial rights, the Court announced that this issue was an appropriate one in which to presume prejudice. The only exception would be "where the trial record contains clear and specific evidence that the district court would not have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime." Id. at 529. Finding the fourth element satisfied on much the same grounds as Oliver, Barnett’s case was remanded for re-sentencing. [Chief Judge Boggs dissented to the presumption of prejudice in the analysis.]

Application of the Standard

The Sixth Circuit continues its resolution of Booker issues mostly in its unpublished decisions. [Note: Sixth Circuit Rule 28(g) states that citation of unpublished opinions is disfavored; see the Rule for exceptions.]

– Remand

Citing its obligation to still give direction and guidance on Guidelines issues, the Court is deciding Guidelines issues raised prior to Booker, but also remanding the cases for the district courts to consider sentence imposition under a no-longer-mandatory sentencing scheme. See, e.g., United States v. Bivens, No. 03-6667/04-5044 (6th Cir. 4/8/05) (unpublished) ("Thus, it remains an important part of our appellate review function to determine what the Guidelines would call for under the particular facts and circumstances of a given case."; affirming no reduction for minor role); United States v. Kirby, 02-6232 (6th Cir. 4/11/05) (unpublished) (upholding organizer/leader enhancement, but remanding); United States v. Kavo, No. 04-1194 (6th Cir. 4/1/05) (unpublished) (affirming "abduction" enhancement under §2A3.1(b)(5), but remanding for re-sentencing); United States v. Hairston, No. 04-3038 (6th Cir. 4/7/05) (unpublished) (upholding downward departure, but remanding for re-sentencing because "Booker must be applied ‘to all cases on direct review’"; "we consider the remaining claims because the district court will need to consider the correct Guidelines-recommended sentence in fashioning its own post-Booker sentence on remand."); United States v. Trammel, No. 03-6652 (6th Cir. 4/8/05) (remanding under Booker, but deciding issue related to computation of criminal history); United States v. Richard Oliver, No. 04-1309 (6th Cir. 4/19/05) (unpublished) (same); United States v. Yagar, No. 04-5151 (6th Cir. 4/18/05) (resolving "number of victims" issue under §2B1.1 and remanding for re-sentencing); United States v. Israel, No. 03-3298 (6th Cir. 2005) (resolving use of drug guidelines instead of money laundering guidelines); United States v. Harmon, No. 03-1925 (6th Cir. 5/12/05) (which version of Guidelines manual to apply); United States v. Cage, No. 04-5218 (6th Cir. 5/13/05) (unpublished) (remanding for re-sentencing based on Sixth Amendment violation in district court determining amount of loss; deciding issues regarding enhancements for amount of loss and unauthorized use of identification, and reduction for attempt).

In one reported decision, the Court declined to address the Booker issue since it was already remanding the case after reversing an enhancement for vulnerable victim under §3A1.1, and, on remand, "the district court must apply the Guidelines in light of Booker." United States v. Madden, No. 04-5150 (6th Cir. 4/4/05).

Following the mandate of Barnett, the Court of Appeals continues to find that remand of a pre-Booker sentence is required absent "clear and specific evidence that the district court would not have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime." Barnett, 398 F.3d at 529-30. See, also, United States v. Nelson, No. 04-1306 (6th Cir. 4/8/05) (unpublished) ("Because nothing in the record rebuts [the] presumption [of prejudice], we vacate Nelson’s sentence and remand for re-sentencing in light of Booker."); United States v. Bowker, 02-4086 (6th Cir. 4/6/05) (unpublished) ("Bowker’s sentence was imposed in violation of the Sixth Amendment because the 96 month term exceed the maximum sentence that the Guidelines authorize based solely on the facts found by the jury beyond a reasonable doubt."); United States v. Porter, No. 03-5935 (6th Cir. 4/13/05) (unpublished) ("Barnett further instructs us to presume prejudice in this case"; remanding for re-sentencing despite district court’s statement that "this sentence is well deserved because this man is a career drug dealer and he’s ruined countless lives, directly or indirectly ... and I think he deserves every month he’s going to serve" because district court sentenced at bottom of range); United States v. Benson, No. 04-1312 (6th Cir. 4/6/05) (unpublished); United States v. Jenkins, No. 04-5056 (6th Cir. 4/12/05) (unpublished) (remanding because of defendant’s objection to 1 level for amount of loss, sentence at the bottom of the range, and because "we would be usurping the discretionary power granted to the district courts by Booker if we were to assume that the district court would have given the same sentence post-Booker).

But, see, United States v. Moore, No. 04-5054 (6th Cir. 4/12/05) (unpublished) (refusing remand where sentence was based solely on facts admitted by the defendant at the time of the plea, and the sentence was within the range to which the defendant had agreed in his plea agreement with the government, which included the dropping of two 924(c) counts).

In United States v. McMahan, No. 03-6271 (6th Cir. 4/26/05) (unpublished), the Court of Appeals found a Sixth Amendment violation where the district court sentenced the defendant "under mandatory Guidelines for a greater drug quantity than the jury determined beyond a reasonable doubt." Remand was also necessary in McMahan based on the district court’s conversion of cash to drug quantities for Guidelines computation purposes. A Sixth Amendment violation also occurred in United States v. Smith, No. 04-5359 (6th Cir. 4/22/05), when the district court used a cross-reference to the robbery guidelines to sentence a defendant convicted of being a felon in possession of a firearm. See, also, United States v. Krushinski, No. 03-6586 (6th Cir. 5/10/05) (unpublished) (government conceded on appeal that district court engaged in judicial fact-finding by adding points for victim’s official status and obstruction of justice to arrive at 495 month sentence).

The necessity of remand is not based on a Sixth Amendment violation per se, but also on the fact that the district court should have the opportunity to impose sentence under a non-mandatory scheme. United States v. Kavo, No. 04-1194, *7-8 (6th Cir. 4/1/05) (unpublished) ("Because the operative facts were admitted by the defendant and are not, therefore, ‘judge-made’ facts, it could be argued that there is no Booker problem in this case because there was no Sixth Amendment violation in connection with the district court’s determination that an abduction occurred. However, the opinion of the so-called ‘Breyer majority’ in Booker requires a remand for re-sentencing in ‘all cases on direct review,’ regardless of whether they involve a Sixth Amendment violation, if the district court acted under the impression that it was bound to follow the guidelines in sentencing, when the section of the Sentencing Reform Act that made application of the guidelines mandatory has now been held unconstitutional and has been excised from the remainder of the Act.") Accord, United States v. Zerilli, 03-1061 (6th Cir. 4/13/05) (unpublished) (remanding based on the Booker directive that it would apply "to all cases on direct review"); United States v. Jones, No. 03-6239 (6th Cir. 4/15/05) (finding plain error where district court felt obligated to sentence under the Guidelines , "his own judgment notwithstanding."); United States v. West, No. 04-5138 (6th Cir. 5/2/05) (finding no Sixth Amendment violation because district court upheld defendant’s objection to drug quantity, but remanding for re-sentencing because, under Barnett, "Booker effected a clear change in the law" and the district court did not sentence at the top of the range); United States v. Richard Oliver, No. 04-1309 (6th Cir. 4/19/05) (unpublished); United States v. Alva, No. 03-5175 (6th Cir. 4/26/05) (petition for certiorari pending when Booker decision released); United States v. Jones, No. 03-5123 (6th Cir. 4/19/05) (unpublished) (finding no Sixth Amendment violation where no judge-found facts were used to enhance his sentence, but because he was sentenced under a mandatory scheme); United States v. Hall, No. 04-5047 (6th Cir. 5/6/05) (unpublished) (district court gave sentence at low end of range and expressed reservations based on defendant’s age and poor mental health); United States v. Murphy, No. 04-5068 (6th Cir. 5/13/05) (unpublished) (remanding because sentence was imposed under a framework that has been substantially altered, and, as such, it would be fundamentally unfair to all the sentence to stand since it was imposed under a mandatory scheme); United States v. Toro, No. 03-4643 (6th Cir. 5/13/05) (noting, "while the government continues to disagree with Oliver, it concedes that the decision controls this case"); United States v. Hudson, No. 04-5096 (6th Cir. 4/22/05) (felon in possession of firearm whose Guidelines offense level was only enhanced based on a prior conviction, but who was sentenced in the middle of the range, and the district court’s reflections on the sentence did not evidence a "clear and specific" intent that the sentence not be lower); United States v. Conner, No. 04-5739 (6th Cir. 5/17/05) (unpublished) (defendant’s sentence of 235 months was the low end of the range); United States v. Humphrey, No. 04-3835 (6th Cir. 5/13/05) (unpublished) (sentencing under a pre-Booker regime is clearly prejudicial and the now-recognized error is not harmless).

In United States v. Gorostieta, No. 04-1786 (6th Cir. 5/9/05) (unpublished), the case was remanded for re-sentencing despite the fact that the district court had departed downward because the sentencing judge had still sentenced at the low end of the range and stated "from which I’m pretty well confined to 18 months", and had indicated that it had no objection to BOP granting an early furlough.

Nor is a sentence at the bottom of the range necessary for a remand for re-sentencing. See, United States v. Kavo, No. 04-1194, *9 n. 2 (6th Cir. 4/1/05) (unpublished) (finding remand especially appropriate in situation in which the sentence imposed falls at the bottom of the sentencing range", but also finding that "[o]f course, it does not logically follow that a sentence longer than the minimum guidelines punishment indicates an aversion to a lesser sentence in all instances."); United States v. Pittman, No. 03-6506 (6th Cir. 4/13/05) (unpublished) (remanding for re-sentencing despite sentence at high end of sentencing range based on Barnett).

- No Remand

A case will not be remanded, however, where the plea agreement of the parties contains a waiver of such right or an agreement to be sentenced to a specific sentence or range within the Sentencing Guidelines. See, e.g., United States v. Gilliam, No. 04-5165 (6th Cir. 4/8/05) (unpublished); United States v. Foster, No. 04-1273 (6th Cir. 4/14/05) (unpublished); United States v. White, No 03-4488 (6th Cir. 4/18/05) ("a subsequent change in law does not render a plea agreement unknowing or involuntary." Also, see, United States v. Medellin, No. 02-5872 (6th Cir. 5/12/05) (unpublished), below; United States v. Coteat, No. 04-3817 (6th Cir. 5/11/05) (unpublished), below; United States v. Hunyady, No. 04-1325 (6th Cir. 5/17/05) (no consideration of possible Booker claims because appeal of sentence waived).

Nor will a case be remanded where there is "clear and specific evidence" that the district court would not impose a lower sentence. See, United States v. Hall, No. 04-5336 (6th Cir. 4/13/05) (unpublished) (refusing to remand for re-sentencing where defendant sentenced at high end of the sentencing range and district court stated that it was sentencing at high end to protect society from defendant’s future misdeeds); United States v. Strbac, No. 04-4158 (6th Cir. 4/25/05) (refusing remand where district court, post-Blakely, had imposed alternative sentences that were identical); United States v. Harris, No. 04-1589 (6th Cir. 4/19/05) (unpublished) (district court’s announcement that a sentence at the very top of the range was the most appropriate constitutes "clear and specific evidence")

There will also be no remand where the facts of conviction support the sentence imposed. In United States v. Medellin, No. 02-5872 (6th Cir. 5/12/05) (unpublished), the Court of Appeals found no Booker violation where the jury, based on the indictment and the instructions, had to find that he possessed over 5 kilos of cocaine and that, therefore, drug quantity had been found beyond a reasonable doubt. The Court refused to remand to for re-sentencing by virtue of the fact that the sentencing guidelines are no longer mandatory because had not raised that precise Booker argument, and, therefore, the Court would decline to consider it.

Booker does not apply where the defendant receives the statutory mandatory minimum sentence (since the district court would have no ability to grant a lower sentence whatever its desire to do so). United States v. Johnson, No. 03-6477 (6th Cir. 5/5/05) (unpublished); United States v. Rucker, No. 03-2596 (6th Cir. 5/12/05) (unpublished).

Booker also does not apply to enhancements based on criminal record. In United States v. Coteat, No. 04-3817 (6th Cir. 5/11/05) (unpublished), the Sixth Circuit refused to apply Booker to the Guidelines career offender enhancement, citing Almendarez-Torres, and noting that, despite Justice Thomas’ concurrence in Shepard, Almendarez-Torres remains the law. The Court refused to consider whether the case should be remanded based on the district court’s consideration of the Guidelines as mandatory because the appeal waiver in the case only reserved the right to challenge "any adverse decision on his career offender status". The latter rationale obviously gets the Court around the problem of Barnett in which the Court remanded the case for reconsideration of the sentence of an Armed Career Criminal!

Standard of Review

The standard of review for a district court’s "statutory construction and interpretation of the now-advisory sentencing guidelines [is] de novo." United States v. Chriswell, __ F.3d __, 2005 WL 627557, 2005 U.S. App. LEXIS 4509, at *12 (6th Cir. 3/18/05).