                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0279n.06
                            Filed: April 13, 2005

                                           No. 04-5336

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
OREN RAY HALL,                                    )   EASTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )
                                                  )



       Before: BOGGS, Chief, Judge; COOK, and BRIGHT*, Circuit Judges.


       PER CURIAM. Oren Ray Hall appeals the sentence he received after pleading guilty to

distributing alprazolam, a Schedule IV controlled substance, arguing that the district court violated

his Sixth Amendment rights under United States v. Booker, 125 S. Ct. 738 (2005). Though Hall

admitted to distributing only 1800 tablets, the district court held him accountable for 19,170

alprazolam and 2,235 diazepam tablets. Hall’s factual admissions warranted a sentencing range of

4 to 10 months of imprisonment. But the relevant-conduct finding increased the applicable range

to 15 to 21 months, with the district court sentencing Hall to 21 months.




       *
        The Honorable Myron H. Bright, Circuit Judge for the United States Court of Appeals for
the Eighth Circuit, sitting by designation.
No. 04-5336
United States v.Hall

       Because Hall raises his Sixth Amendment argument for the first time on appeal, we review

for plain error. Under this Circuit’s Barnett regime, we acknowledge the Booker-driven sentencing

error and presume the error prejudiced Hall. See United States v. Barnett, 398 F.3d 516 (6th Cir.

2005). Nonetheless, we believe the district court’s explication of its sentencing choice rebuts the

presumption. In sentencing Hall to the maximum sentence within the range, the district court

explained:


       Mr. Hall, what is going to drive the [c]ourt in this sentence is your criminal
       background. . . . The [c]ourt is going to sentence you to the high end of the
       guideline range. . . . The [c]ourt imposes this sentence to protect society from
       future misdeeds by Mr. Hall and also to reflect the seriousness of the offense.


On this record, we cannot conclude that the district court’s Booker violation affected Hall’s

substantial rights. Accordingly, we affirm Hall’s sentence.




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