NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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 sentence 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 jury beyond a reasonable doubt. Conceding that he

failed to raise this issue in the district court, Howard 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. Inmates sentenced to serve more than one year of

imprisonment become eligible for up to fifty-four 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 United 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. 6TH CIR. 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 range of twelve to eighteen months. See U.S. SENTENCING

GUIDELINES MANUAL (“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 Appendix (“J.A.”) at 484 (Feb. 2, 2004 Sentencing

Hr’g); U.S.S.G. § 2B1.1(b)(1)(C), plus an additional 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.2

 Howard contends that such an error occurred in this case. Absent the

enhancements, Howard would have been sentenced at 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 concession allowed the district court to apply the

amount-of-loss enhancement without violating the Sixth Amendment, the district court’s application

of the obstruction-of-justice enhancement, standing alone, would not be sufficient to establish a

Sixth Amendment violation. Without the obstruction-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 appropriate for 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-evidence 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 Amendment
4

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.