*

The Honorable James G. Carr, Chief United States District Judge of the Northern District of Ohio, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0253p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARONE COOK,

Defendant-Appellant.

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No. 05-2203

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-80796—Robert H. Cleland, District Judge.

Argued: May 12, 2006

Decided and Filed: July 20, 2006 

Before: DAUGHTREY and COOK, Circuit Judges; CARR, Chief District Judge.*

_________________

COUNSEL

ARGUED: Robert J. Dunn, Bay City, Michigan, for Appellant. Robert Cares, ASSISTANT

UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Robert J. Dunn,

Bay City, Michigan, for Appellant. Robert Cares, ASSISTANT UNITED STATES ATTORNEY,

Detroit, Michigan, for Appellee.

_________________

OPINION _________________

JAMES G. CARR, Chief District Judge. This is a sentencing appeal. Larone Cook was

convicted of civil rights, racketeering, and drug violations in 2001. He appealed and the Sixth

Circuit remanded his case for resentencing in light of United States v. Booker, 543 U.S. 220 (2005).

On remand, Cook contends that the District Court made errors similar to the ones it made

at his first sentencing.

For the following reasons, Cook’s sentence shall be AFFIRMED.

1
No. 05-2203 United States v. Larone Cook Page 2

BACKGROUND

On April 27, 2001, Larone Cook, a former Detroit police officer, was convicted on charges

of civil rights conspiracy, drug conspiracy, RICO violations, RICO conspiracy, and extortion

conspiracy. 

At Cook’s sentencing, the District Court analyzed the evidence presented at trial as well as

other evidence provided specifically for sentencing purposes. Using facts gleaned from the record,

but not found by a jury or admitted by the defendant, it calculated a guideline range of 168-210

months and imposed a term of incarceration of 175 months. 

Cook appealed. While his case was pending, the Supreme Court delivered its opinion in

Booker. The Sixth Circuit affirmed his conviction, but remanded for resentencing in light of Booker.

At resentencing, the District Court made similar findings of fact as it had at the first

sentencing and calculated his guidelines range the same way. The Court specifically stated the

calculations themselves, were correct. The Court, however, imposed a lighter sentence of 151

months, to take account of Cook’s family’s medical circumstances. 

DISCUSSION

At his resentencing, Cook contends the District Court improperly calculated his guideline

range on the basis of facts other than those rendered in the verdict or which he had specifically

admitted. His claim is without merit.

Cook’s argument overstates the result in and the reach of Booker. It is true that, in

sentencing, a court may not rely on facts other than those rendered in the verdict or which the

defendant has specifically admitted to impose a mandatory enhancement. Shepard v. U.S., — U.S.

—, —, 125 S.Ct. 1254, 1257 (2005) (court may not impose career-criminal mandatory enhancement

based on improper judicial fact-finding). But that ruling has no bearing on advisory guideline

calculations.

Because the guidelines are now advisory and not mandatory, a District Court may rely on

extra-verdict facts or on those other than which the defendant has specifically admitted when it

calculates his sentence. United States v. Stone, 432 F. 3d 651, 654-55 (6th Cir. 2005)(“Booker did

not eliminate judicial fact-finding. Instead, district courts have “the option, after calculating the

Guideline range, to sentence a defendant outside the resulting Guideline range.”). 

District courts are obligated only to consider the guidelines range among other factors when

making a final determination. Id. at 655 (“District courts ... must [] calculate the Guideline range as

they would have done prior to Booker, but then sentence defendants by taking into account all of

the relevant factors of 18 U.S.C. § 3553, as well as the Guidelines range.). See United States v.

Nguyen, 2006 WL 988272, *3 (6th Cir. 2006) (“[J]udicial fact-finding that is necessary to calculate

an advisory Guidelines range comports with the Sixth Amendment.”); United States v. Green 2006

WL 1307999, *5 (6th. Cir. 2006)(“Since Booker, this court has consistently turned aside

constitutional challenges to sentences premised on preponderance of the evidence judicial

factfinding.”). 

Other circuits have treated judicial fact-finding as acceptable when used in conjunction with

non-mandatory sentencing guidelines. United States v. Yeje-Cabrera, 430 F.3d 1, 17 (1st Cir. 2005);

United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005); United States v. Cooper, 437 F.3d 324,

330 (3d Cir. 2006); United States v. Sander, 2006 WL 1114038, at *1 (4th Cir.); United States v.

Mares, 402 F.3d 511, 519 (5th Cir. 2005); McReynolds v. U.S., 397 F.3d 479, 481 (7th Cir. 2005);
No. 05-2203 United States v. Larone Cook Page 3

United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005)(en banc); United States v. Chau, 426

F.3d 1318, 1323-24 (11th Cir. 2005); United States v. Coles, 403 F.3d 764, 769 (D.C. Cir. 2005).

Here, relying on the record, the District Court properly calculated the defendant’s guidelines

range. It then sentenced Cook to a term of incarceration below the bottom end of that range,

implicitly acknowledging the now advisory nature of the guidelines. Thus, there was no error here

and the defendant’s sentence shall be AFFIRMED.