            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 05a0750n.06
                        Filed: August 25, 2005

                                       No. 04-5015

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )
                                             )
       Plaintiff-Appellee,                   )    ON APPEAL FROM THE
                                             )    UNITED STATES DISTRICT COURT
v.                                           )    FOR THE WESTERN DISTRICT
                                             )    OF TENNESSEE
LATONIE MASON,                               )
                                             )
       Defendant-Appellant,                  )


BEFORE: RYAN and COOK, Circuit Judges; BELL, District Judge.*

       PER CURIAM. On March 4, 2003, Latonie Mason was indicted on fifteen counts

of mail fraud and access device fraud in violation of 18 U.S.C. § 1341 and 18 U.S.C.

§ 1029(a)(2). Mason entered a plea of guilty to one count of mail fraud and one count of

access device fraud. On December 9, 2003, the district court sentenced her to 78 months in

prison and three years supervised release.

       Mason's initial appeal challenged the district court's imposition of a two-level

enhancement for obstruction of justice and its denial of a two-level reduction for acceptance

of responsibility pursuant to the United States Sentencing Guidelines. Subsequent to the



       *
      The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
No. 04-5015                                   2
U.S. v. Mason

Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), Mason filed a

supplemental brief alleging an additional claim that the district court violated her Sixth

Amendment right to trial by jury by enhancing her sentence based upon facts found by the

district court as to the amount of loss, the number of victims, and identity theft. At the

request of the court the parties subsequently filed a letter brief addressing the effect of the

United States Supreme Court decision in United States v. Booker, 125 S. Ct. 738 (2005).

                                              I.

       Mason contends that her sentence was imposed in violation of the Sixth Amendment

because the district court made factual findings on contested issues which increased her

statutory maximum sentence under the mandatory structure of the Sentencing Guidelines.

Mason entered a plea of guilty to an offense that carried an offense level of six. The district

court denied a two-level reduction pursuant to § 3E1.1 for acceptance of responsibility,

added a two-level enhancement pursuant to § 3C1.1 for obstruction of justice, added an

eight-level enhancement pursuant to § 2B1.1(b)(1)(E) because the loss exceeded $70,000 but

was less than $120,000, added a two-level enhancement pursuant to § 2B1.1(b)(2)(A)

because the offense involved more than 10 victims but less than 50 victims, and added a two-

level enhancement pursuant to § 2B1.1(b)(9)(C)(i) because the offense involved the

unauthorized transfer or use of any means of identification unlawfully to produce or obtain

any other means of identification.

       In Booker the Supreme Court held that the Sixth Amendment prevents federal judges

from making factual determinations that increase a defendant's sentence beyond that which
No. 04-5015                                      3
U.S. v. Mason

is authorized on the basis of facts established by a plea of guilty or a jury verdict under

mandatory guidelines. 125 S. Ct. at 756. Thus, "[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant or proved

to a jury beyond a reasonable doubt." Id. The Supreme Court instructed that its Sixth

Amendment holding in Booker and its remedial interpretation of the Sentencing Act "must

be applied to all cases on direct review." Id. at 769. The Supreme Court recognized,

however, that not every sentence would give rise to a Sixth Amendment violation. Id. at 769.

In reviewing Booker claims, courts must still "apply ordinary prudential doctrines,

determining, for example, whether the issue was raised below and whether it fails the

'plain-error' test." Id.

       Mason did not raise a Sixth Amendment objection at sentencing. Accordingly, we

review the district court's application of the Sentencing Guidelines under the plain-error

standard. United States v. Jones, 403 F.3d 817, 824 (6th Cir. 2005) (citing United States v.

Oliver, 397 F.3d 369, 375 (6th Cir. 2005); Fed. R. Crim. P. 52(b)). "Under the plain-error

standard, there must exist '(1) error, (2) that is plain, and (3) that affect[s] substantial rights.

If all three conditions are met, an appellate court may then exercise its discretion to notice

a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.'" United States v. Jones, 403 F.3d 817, 824 (6th Cir.

2005) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).
No. 04-5015                                  4
U.S. v. Mason

       It is only judicial fact-finding of contested facts that raises Sixth Amendment

concerns. The Sixth Amendment is not violated if the sentence imposed is based solely on

facts admitted by the defendant. See United States v. Webb, 403 F.3d 373, 381 (6th Cir.

2005) (finding no Sixth Amendment Booker violation where sentence was based on facts

admitted in the plea agreement); United States v. Murdock, 398 F.3d 491, 501-02 (6th Cir.

2005) ("Because facts sufficient to support the sentence were admitted by the defendant, his

Sixth Amendment rights were not violated in this case."). See also United States v. Jones,

No. 03-5123, 2005 WL 900870, *5 (6th Cir. Apr. 19, 2005) ("Jones has not suffered a Sixth

Amendment violation because no judge-found facts were used to enhance his sentence. The

indictment contains the facts to which Jones now objects, and by pleading guilty, Jones

admitted those facts."); United States v. Moore, Nos. 04-5054, 04-5056, 2005 WL 843740,

*8 (6th Cir. Apr. 12, 2005) ("The Sixth Amendment does not apply to agreed-upon facts; it

regulates the decisionmaker of disputed facts.").

       Mason has not shown that the issue of identity theft was in dispute. Mason did not

object to this specific offense characteristic in the presentence report. Accordingly, she is

deemed to have admitted that the offense involved identity theft. See United States v.

Stafford, 258 F.3d 465, 475-76 (6th Cir. 2001) (holding that defendant's failure to object to

presentence report operates as an admission as to drug types and quantities set forth in

presentence report). See also United States v. Harris, No. 04-1589, 2005 WL 894581 at *2

(6th Cir. April 19, 2005) (holding that defendant was deemed to have admitted that his crime
No. 04-5015                                   5
U.S. v. Mason

involved three firearms where he failed to object to inclusion of this fact in presentence

report).

       Paragraph 46 of the presentence report indicated that the total amount of fraudulent

credit card charges was $94,338.35. Mason indicated in her written submission with respect

to sentencing factors that she admitted involvement in the activities described in paragraphs

39-46 of the presentence report. Paragraph 47 of the presentence report described the victims

of Mason's fraud as the individuals who had their credit stolen and the credit card companies

and specifically identified 11 entities to whom restitution in the amount of $76,738.56 was

due. Mason did not object to this paragraph. She did object to paragraph 48 which listed the

amount of restitution due each of the 11 victims on the basis that she believed that the total

amount of her fraudulent activity was approximately $15,000. However, she did not identify

which of the 11 victims or which of the amounts itemized in paragraph 48 were the focus

of her general objection.

       Mason's plea agreement contains a broad provision regarding relevant conduct.

Mason agreed that the Sentencing Guidelines would be computed on the total amount of

relevant conduct, including any dismissed counts. Because her plea agreement encompassed

all relevant conduct, because she did not object to the total number of victims and amount

of loss contained in paragraph 47 of the presentence report, and because her objection to the

number of victims and amount of loss in paragraph 47 of the presentence report was not

specific, Mason can no longer be heard to object to the district court's consideration of all

relevant conduct as it related to the amount of loss and number of victims.
No. 04-5015                                       6
U.S. v. Mason

       Even if there was "error" at sentencing as a result of the district court's factual findings

as to amount of loss and number of victims, and even if that error was "plain" under Booker,

we are nevertheless satisfied that the error does not meet the "plain error" standard because

it did not affect Mason's "substantial rights."

       The third step of plain-error analysis which requires the defendant to demonstrate that

the error affected substantial rights "normally requires the defendant to show that the error

was 'prejudicial,' which usually means that the error 'must have affected the outcome of the

district court proceedings.'" United States v. Trammel, 404 F.3d 397, 401 (6th Cir. 2005)

(quoting United States v. Olano, 507 U.S. 725, 734 (1993)). We have held that "a sentencing

error affects substantial rights where it causes the defendant 'to receive a more severe

sentence.'" Oliver, 397 F.3d at 379 (quoting United States v. Swanberg, 370 F.3d 622, 629

(6th Cir. 2004)). When the district court sentences a defendant to the low end of the

guideline range, we are inclined to find that defendant's substantial rights have been affected

by the court's reliance on the sentencing guidelines. See, e.g., United States v. Davis, 397

F.3d 340, 349 (6th Cir. 2005). Even in cases where the district court sentences in the middle

of the guideline range we are reluctant to speculate as to what the district court's sentence

would be in the post-Booker world. United States v. Barnett, 398 F.3d 516, 527 (6th Cir.

2005). We have held that the most prudent course of action in such cases is to "presume

prejudice." Id. However, we have not discounted the possibility that in some cases "the

evidence in the record will be sufficient to rebut the presumption of prejudice." Id. at 529.
No. 04-5015                                   7
U.S. v. Mason

       Any presumption of prejudice is readily rebutted on the present record. This is not

a case where there is any suggestion that the district court might have given a lower sentence

but for the Sentencing Guidelines. The district court did not sentence Mason at the low end

or even the middle of the Guideline range. The district court sentenced Mason to the

maximum under the Guidelines and suggested that it might have been inclined to impose a

higher sentence but for the Guidelines.

       Based upon the district court's statements at sentencing, we are satisfied that Mason

was not substantially prejudiced by the district court's application of the Sentencing

Guidelines. Accordingly we find no plain error under Booker.

                                             II.

       Although we have determined that there is no plain error under Booker, we must still

address Mason's original arguments that the district court erred in enhancing her sentence for

obstruction of justice and denying her credit for acceptance of responsibility.

       The Sentencing Guidelines provide for a two-level enhancement if the defendant

"willfully obstructed or impeded, or attempted to obstruct or impede, the administration of

justice" and the obstructive conduct related to the offense of conviction. U.S.S.G. § 3C1.1.

Conduct to which the obstruction adjustment applies includes "threatening, intimidating, or

otherwise unlawfully influencing a codefendant, witness, or juror, directly or indirectly, or

attempting to do so." U.S.S.G. § 3C1.1, Application Note 4(a). The enhancement for

obstruction of justice does not apply unless the defendant acted "willfully." United States v.
No. 04-5015                                      8
U.S. v. Mason

Brown, 237 F.3d 625, 628 (6th Cir. 2001). "Willfully" connotes some kind of deliberate or

intentional conduct. Id.

       The district court imposed a two-level enhancement under U.S.S.G. § 3C1.1 for

obstruction of justice because Mason, after being released on bond, fraudulently opened an

account in the name of Ron Murphy, the individual who originally reported Mason's

fraudulent use of credit cards to the Memphis Police Department. The district court held that

her continuation of criminal activity after being released on bond was obstruction of justice

because the victim of the crime was also a potential witness in the criminal trial.

       Mason contends that the district court erred by enhancing her sentence for obstruction

of justice because the district court made no finding that she acted consciously with an intent

to obstruct justice. Mason contends, furthermore, that the record is silent as to whether she

was even aware that Murphy was the individual who had contacted the police about her

fraudulent activities.

       Mason did not raise this objection at sentencing. She accordingly acknowledges that

we review the enhancement only for plain error. In other words, as noted above, we can only

reverse the district court's sentence if there was (1) error, (2) that is plain, and (3) that affects

substantial rights, and only if (4) the error seriously affects the fairness, integrity, or public

reputation of the judicial proceedings. Jones, 403 F.3d at 824.

       In determining whether the district court erred in imposing an enhancement for

obstruction of justice we use the following trifurcated standard:

       First, we review the factual determinations made by the district court for clear
       error. Second, the determination that certain conduct constitutes obstruction
No. 04-5015                                    9
U.S. v. Mason

       of justice, which is a mixed question of law and fact, is reviewed de novo.
       Third, because the application of the obstruction enhancement is
       non-discretionary, the actual imposition of the enhancement is reviewed de
       novo.

United States v. Baggett, 342 F.3d 536, 540-41 (6th Cir. 2003) (citations omitted).

       The district court did not make any explicit findings on the record regarding Mason's

intent. Nevertheless, contrary to Mason's assertions, the record was not silent on the issue

of whether she knew Murphy was a witness against her. At the temporary emergency bond

hearing on July 1, 2003, during questioning about Mason's conduct during the time that she

was on pretrial release, Postal Inspector Ellis testified that Mason was aware that Murphy

was a witness against her in the first phase of the investigation as they had spoken personally

together about this situation. Mason offered no evidence to the contrary.

       The district court did not explicitly state on the record that Mason was aware of

Murphy's involvement in her arrest. Nevertheless, the district court understood that

obstruction of justice required a finding that Mason acted willfully, and the uncontroverted

evidence was that Mason knew Murphy had reported her fraud and that she subsequently

targeted him as the next victim of her fraud. Although Mason's motivation for selecting

Murphy as a victim is not clear from this record, it is clear that her selection of Murphy was

not mere coincidence. We are satisfied that Mason's victimization of Murphy was sufficient

to enable the district court to find that she acted with an intent to obstruct justice. We

accordingly defer to the district court's assessment of the facts of record and find no error in

the district court's enhancement under U.S.S.G. § 3C1.1.
No. 04-5015                                   10
U.S. v. Mason

       Mason has also argued that the district court committed plain error by denying her

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. We review for clear error a

district court's determination of whether a defendant has accepted responsibility for his

offense. United States v. Gregory, 315 F.3d 637, 640 (6th Cir. 2003).

       In denying Mason's request for acceptance of responsibility the district court stated:

       Well, it would be extraordinary for me to grant acceptance of responsibility in
       a case where there is obstruction of justice. I don't believe I can get to that
       extraordinary remedy for Ms. Mason where there was ongoing criminal
       conduct. That conduct, particularly conduct after her release on bond, is not
       consistent with acceptance of responsibility for her criminal actions. And for
       that reason, I will deny the request for acceptance of responsibility credit. But
       even if that weren't here, I think given the obstruction of justice issues, it is
       impossible to get there. It is impossible for me to get there. It is a matter that
       is discretionary with the trial court, which I recognize. But I am not going to
       exercise discretion to grant acceptance of responsibility.

       On appeal Mason does not contest the district court's factual determination that she

engaged in continuing criminal conduct after she was released on bond.                She also

acknowledges that continuing criminal conduct would be a sufficient basis for denying

acceptance of responsibility. United States v. Zimmer, 14 F.3d 286, 289 (6th Cir. 1994).

Obstruction of justice also provides a sufficient basis for denying acceptance of

responsibility. U.S.S.G. § 3E1.1, Application Note 4. Mason nevertheless contends that the

district court's ruling was erroneous because the evidence did not support a finding of

obstruction of justice, and it is impossible to determine whether the district court would have

denied acceptance of responsibility on the basis of her continued criminal conduct alone if

it had not also found that she obstructed justice. See United States v. Whitman, 209 F.3d 619,
No. 04-5015                                   11
U.S. v. Mason

623-24 (6th Cir. 2000) (remanding for resentencing where it was unclear whether court based

denial of acceptance on proper factors or improper factors).

       In light of our determination above that the district court did not err in finding that

Mason obstructed justice, denial of acceptance of responsibility was appropriate under either

theory. Accordingly, there was no error in the district court's denial of credit for acceptance

of responsibility.

                                             III.

       In conclusion we find no plain error and accordingly AFFIRM the sentence imposed

by the district court.
(No. 04-5015)                               -12-


       RYAN, Circuit Judge, dissenting. Because I do not agree that Mason admitted the

facts necessary to sustain her sentence, and I believe she was prejudiced by the resulting

Sixth Amendment error, I respectfully dissent.

       Mason filed seven pages of written objections to the PSR, specifically objecting to

several of the facts pertaining to 1) the calculation of the amount of loss, 2) the number of

victims, and 3) the enhancement for obstruction of justice. Mason did not admit the facts

relevant to these matters by failing to object or otherwise. Defendant’s Position With

Respect to Sentencing Factors (hereinafter Objections). Mason advised the district court that

the PSR contained “false or unreliable information,” thus triggering the sentencing court’s

fact-finding duty under the Federal Rules of Criminal Procedure. United States v. Hurst, 228

F.3d 751, 760-61 (6th Cir. 2000). Once Mason “disputed” these facts, the court could not

accept those portions of the PSR as findings of fact, but was required to rule on Mason’s

objections. Fed. R. Crim. P. 32(i)(3)(A) & (B).

       During a lengthy sentencing hearing, the court addressed each of Mason’s objections.

It heard testimony from Postal Inspector A. Michael Ellis, Jr., and received 13 exhibits into

evidence. The transcript of the sentencing proceedings spans 114 pages. At sentencing, the

government did not argue that Mason had admitted the facts relevant to the amount of loss,

the number of victims, and the obstructions of justice enhancement, and, while arguing that

Mason did not merit a downward departure for acceptance of responsibility, the government

argued that Mason’s objections had required a “mini trial.” Moreover, in its supplemental

Booker letter brief, the government admitted that the district court made findings of fact
(No. 04-5015)                                -13-


necessary to support the amount of loss, the number of victims, and the enhancements for

obstruction of justice.

       The clearest instance of impermissible judicial fact finding came in regard to the

obstruction of justice enhancement. Mason unquestionably objected to the enhancement; she

denied having obtained credit in the name of witness Ron Murphy, Objections at ¶ 12, denied

attempting to obtain a computer in his name, id. at ¶ 13, denied changing the address on his

account, id., and denied the other alleged conduct supporting the obstruction enhancement,

id. at ¶ 30. Nevertheless, the sentencing judge found to the contrary:

       [Mason] had been out to where [Murphy] worked at Bill Heard Chevrolet . .

       . . So it’s not that he was a person who was unknown to her. In other words,

       there is a personal connection to Mr. Murphy in addition to the accessing of

       his account, or the taking over of his account, and the redirection of that to her

       P. O. Box and her husband’s P. O. Box, 16865. So, I believe the evidence

       there is sufficient for me to justify the connection between Mr. Murphy and --

       the fraud of Mr. Murphy and [Mason]. So, I have to reject the objection there

       at paragraph -- the factual objection in twelve.

Based on this finding, the court applied the obstruction of justice enhancement, and thereby

increased Mason’s sentence in violation of the Sixth Amendment.

       The other enhancements at issue similarly fail Booker scrutiny. Mason did not admit

the amount of loss or the number of victims. She did admit to a range of paragraphs that

contained the conclusion that there were $94,338.35 in “fraudulent credit card charges.”
(No. 04-5015)                                -14-


However, Mason specifically objected to the PSR’s inclusion of several alleged victims and

the amount of loss attributed to those victims. The individual allegations, in sum, provide

the data for this $94,338.35 total. It is illogical to hold that Mason admitted to the amount

of loss, or the number of victims, when she presented several objections to the facts of which

these numbers are comprised. The district court made findings on these objections, several

of which were in favor of Mason, and adjusted the amount of loss and the number of victims

totals accordingly. It is clear to me that these enhancements are supported only by judge-

made findings of fact. The district court did not rule that Mason had admitted the facts

necessary to apply these enhancements. This court on appeal should not so hold.

       Furthermore, a close reading of the sentencing transcript reveals that Mason’s

objections were prepared in response to a prior version of the PSR. Therefore, her references

to PSR paragraph numbers were sometimes incorrect. Not enough information about the

numbering error appears in the sentencing transcript for me to conclude that Mason simply

erred when she allegedly admitted to the paragraph at issue. Adopting such a conclusion,

however, would make more sense than to ignore Mason’s several objections, both in writing

and made at sentencing, which is what we do when we hold that Mason admitted these facts.



       I also do not agree with the majority that Mason failed to show that she was

prejudiced by the trial court’s plain error. The majority is correct that a plain error affects

substantial rights where the error results in the defendant receiving a more severe sentence.

United States v. Oliver, 397 F.3d 369, 379 (6th Cir. 2005). As part of her objections to the
(No. 04-5015)                                -15-


PSR, Mason argued that her offense level was no greater than 12: a base level of six for mail

fraud, U.S.S.G. § 2B1.1(a); an additional four levels for a loss exceeding $10,000, id. §

2B1.1(b)(1)(C); and an additional two levels for identity theft, id. § 2B1.1(b)(9)(C)(i) (2002).

Objections at ¶ 30. Within Mason’s criminal history category of V, an offense level of 12

yields a sentence of 27 to 33 months’ imprisonment. Thus, absent the unconstitutional

judicial fact-finding, Mason could have been sentenced, at most, to 33 months’

imprisonment. Her sentence of 78 months’ imprisonment is 45 months greater than what was

permissible. Thus, the plain error affected Mason’s substantial rights.

       The majority reaches the wrong result on the prejudice prong of the plain error

analysis because it conflates the standard in cases of Sixth Amendment error with that of

cases where a defendant was erroneously sentenced by the mandatory application of the now

advisory Guidelines. Mason does not allege that she was prejudiced because the district

court treated the Guidelines as mandatory. Mason alleges Sixth Amendment error in that the

district court found facts by a preponderance of the evidence and, whereas she was subject

only to a sentence between 27 to 33 months’ imprisonment absent the judicial fact-finding,

the Sixth Amendment error subjected her to a sentencing range of 63 to 78 month’s

imprisonment and resulted in a final sentence of 78 months’ imprisonment. For purposes of

our Sixth Amendment plain error analysis it does not matter where within the range Mason

was sentenced; the range itself is tainted with error. Cf. United States v. Barnett, 398 F.3d

516 (6th Cir.), petition for cert. filed, No. 04-1690, 73 USLW 3735 (June 16, 2005).
(No. 04-5015)                                 -16-


       Finally, the last prong of the plain error test is also satisfied. This case is no different

than the scores of Booker cases where this court has vacated a defendant’s sentence and

remanded for resentencing. Moreover, the trial court’s judicial fact-finding resulted in more

than doubling Mason’s sentence. Considerations of fairness, integrity, and the public

reputation of judicial proceedings dictate that we exercise our discretion in this case to

recognize and rectify the district court’s plain error.

       Mason’s sentence should be vacated, and the case remanded for resentencing. But

even without the Sixth Amendment error, Mason’s sentence should nevertheless be vacated

because the district court applied the enhancement for obstruction of justice without finding

that Mason acted willfully. There must be “at least a minimal showing by the government

that [the conduct] was done with the purpose of interfering with investigation or prosecution

of the crime.” United States v. Perry, 991 F.2d 304, 312 (6th Cir. 1993) (emphasis added);

see also United States v. Turner, 324 F.3d 456, 460 (6th Cir.) (citing Perry), cert. denied, 540

U.S. 866 (2003). Although, as the majority notes, Mason’s defrauding of Murphy may not

have been “mere coincidence,” this still leaves unsatisfied the prerequisite that Mason

targeted Murphy with the intent of obstructing justice. As the majority acknowledges,

“Mason’s motivation for selecting Murphy as a victim is not clear from this record.”

Nothing more need be said. Mason objected to application of the enhancement, and the trial

court erred when if failed to make the required specific finding that Mason willfully

obstructed or impeded justice. United States v. Range, 982 F.2d 196, 198 (6th Cir. 1992).
(No. 04-5015)                                -17-


       Although Mason failed to present this specific objection below, she satisfies the plain

error standard. Because the record does not support a finding that Mason acted “willfully,”

application of the enhancement was plain error. Mason was prejudiced by the error because

it directly lead to an increase in her sentence. Moreover, the error essentially precluded the

trial court from granting Mason a reduction for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1, because, as the trial court correctly held, it would be “extraordinary” to

grant such a departure where there had been obstruction. Of course, it would be unnecessary

to address this error if we were to hold, as we ought to, that Mason is entitled to resentencing

pursuant to Booker.
