NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0194n.06

Filed: March 17, 2005 No. 04-5240 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. TYRONE D. HOWARD, Defendant-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY O P I N I O N

Before: KENNEDY, MOORE, and SUTTON, Circuit Judges. KAREN NELSON MOORE, Circuit Judge. After a jury trial, Defendant-Appellant Tyrone D. Howard (“Howard”) was convicted of bank fraud in violation of 18 U.S.C. § 1344. The district court sentenced Howard to the lowest se ntence possible, absent a downward departure, under the then-mandatory U.S. Sentencing Guidelines (“ Guidelines”). Howard raises only one argument on appeal: that the district court unconstitutionally increased his sentence on the basis of facts neither admitted by Howard nor proved to a ju ry beyond a reasonable doubt . Conceding that he failed to raise this issue in the district court, Ho ward nonetheless argues that the district court’s plain error warrants our review. We agree, and accordingly VACATE Howard’s sentence and REMAND the case to the district court for resentencing in light of United States v. Booker , 125 S. Ct. 738 (2005).1 Although this sentence is technically one day longer than the minimum Guidelines term of imprisonment, it is in effect the lowest possible sentence the district court could have imposed within the applicable Guidelines range. Inma tes sentenced to serve more than one year of imprisonment become eligible for up to fifty-f our days of credit for good conduct during each year of imprisonment. See 18 U.S.C. § 3624(b). Accordingly, a year-and-a-day sentence can result in an inmate serving up to fifty-three days less than he or she would serve under a one-year sentence.

2 In its supplemental letter brief, the Unite d States asserts that we should follow United States v. Bruce , 396 F.3d 697 (6th Cir. Feb. 3, 2005), rather than United States v. Oliver , 397 F.3d 369 (6th Cir. Feb. 2, 2005). However, as Oliver was decided prior to Bruce , we are bound by our longstanding rules to follow Oliver . 6 TH C IR
. R. 206(c); see also United States v. Davis , 397 F.3d 340, 350 n.7 (6th Cir. 2005). 2 We briefly set out the facts relevant to this appeal. At sentencing, the district court determined that Howard should be sentenced at Offense Level 12, Criminal History Category II, mandating a Guidelines imprisonment rangeof twelve to eighteen months. See U.S. S ENTENCING G UIDELINES M ANUAL(“U.S.S.G.”) Sentencing Table (2002). In calculating this Guidelines range, the district court began with a Base Offense Level of 6. See U.S.S.G. § 2B1.1(a). The district court then added four levels after determining that the amount of loss involved in the offense was more than $10,000 but not greater than $30,000, Joint Appe ndix (“J.A.”) at 484 (Feb. 2, 2004 Sentencing Hr’g); U.S.S.G. § 2B1.1(b)(1)(C), plus an additiona l two levels based on its finding that Howard had obstructed justice by testifying falsely under oath about matters material to his guilt or innocence of the crime charged. J.A. at 530 (Feb. 9, 2004 Sentencing Hr’g); U.S.S.G. § 3C1.1. The district court sentenced Howard to a total term of imprisonment of one year and one day. 1 In United States v. Oliver , 397 F.3d 369, 380-81 (6th Cir. 2005), we held that a sentence enhancement imposed in violation of the Sixth Amendment constitutes plain error warranting remand for resentencing. 2Howard contends that such an error occurred in this case. Absent the enhancements, Howard would have been sentencedat Offense Level 6, Criminal History Category II, for a Guidelines range of only one to seven months’ imprisonment. U.S.S.G. Sentencing Table.3 If we did conclude that defense counsel’s con cession allowed the district court to apply the amount-of-loss enhancement without violating the Sixth Amendment, the distri ct court’s application of the obstruction-of-justice enhancement, standing alone, would not be sufficient to establish a Sixth Amendment violation. Without the obstruc tion-of-justice enhancement, Howard would have had an Offense Level of 10 and a Criminal History Category of II, for a Guidelines range of eight to fourteen months’ imprisonment. U.S.S.G. Sentencing Table. As the year-and-a-day sentence imposed by the district court would have fallen within this Guidelines range, Howard’s sentence would not violate the Sixth Amendment. 3 As the maximum seven-month sentence permissible under this Guidelines range is shorter than the year-and-a-day sentence actually imposed, the sentence imposed violates the Sixth Amendment unless based on facts “admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker , 125 S. Ct. at 756. In this case, Howard maintained his innocence during trial. Nevertheless, he was found guilty by the jury. The jury’s verdict made no finding as to the amount of loss, but Howard’s attorney conceded at sentencing (conducted prior to the Supreme Court’s decision in Blakely v. Washington , 124 S. Ct. 2531 (2004)) that it was appropriatefor the district court to apply the fourlevel § 2B1.1(b)(1)(C) amount-of-loss enhancement. J.A. at 457-59 (Feb. 2, 2004 Sentencing Hr’g). However, Howard’s attorney did successfully object to the government’s request that the district court instead apply the six-level § 2B1.1(b)(1)(D) amount-of-loss enhancement. J.A. at 483-84 (Feb. 2, 2004 Sentencing Hr’g). We need not decide whether counsel’s § 2B1.1(b)(1)(C) concession — made under a preponderance-of-the-evi dence standard and prior to the Blakely decision — would constitute, for Booker purposes, an admission by the defendant sufficient to avoid a Sixth Amendment violation, 3 because the sentence imposed in this case requires remand even absent a Sixth Amendment violation. In United States v. Barnett , 398 F.3d 516, 529-530 (6th Cir. 2005), we held that in certain circumstances remand of a pre- Booker sentence is required even absent a Sixth Amendment4 violation. As Howard was sentenced at the bottom of the applicable Guidelines range, Barnett requires that we remand the case to the district court. Accordingly, we VACATE Howard’s sentence and REMAND the case to the district court for resentencing in light of Booker

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