               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0467n.06
                           Filed: August 5, 2008

                                          No. 05-6811

                          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
LEE THEODORE SMITH,                              )   WESTERN DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )
                                                 )
                                                 )

       BEFORE: ROGERS and McKEAGUE, Circuit Judges, and ADAMS, District Judge.*

       ADAMS, J. Lee Theodore Smith appeals from the district court’s imposition of a 96 month

sentence. We affirm.

                                  I. STATEMENT OF FACTS

       On May 13, 2003, Smith was indicted for conspiracy to manufacture methamphetamine in

violation of 21 U.S.C. § 846 and possession of equipment and chemicals which may be used to

manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6). Following a mistrial, Smith

was tried a second time and convicted on May 11, 2004. In calculating Smith’s guideline range, the

district court found that he had possessed a firearm during the commission of the offense and that

Smith’s conduct created a substantial risk of harm to a minor. The district court, therefore,



*
   The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
U.S. v. Smith
05-6811

concluded that Smith’s mandatory guideline range was 121 to 151 months. On November 17, 2004,

Smith was sentenced to 121 months by the district court. On August 8, 2005, this Court remanded

for resentencing pursuant to Booker.

       Following remand, the district court calculated the now advisory guideline range to be 121

to 151 months. The court arrived at this range by using the same enhancements it had used under

Smith’s prior sentence. The court then varied downward from the guideline range using the factors

set forth in 18 U.S.C. § 3553 and sentenced Smith to 96 months incarceration. This appeal followed.

                                         II. ANALYSIS

       Smith raises one substantive issue on appeal. He argues that the trial court’s act of finding

facts to support the sentencing enhancements violated the Sixth Amendment. There is no merit in

Smith’s argument.

       On appeal, Smith has not challenged the factual findings that support the enhancements

utilized by the district court. Accordingly, the Court does not review those factual findings.

However, even if Smith’s brief on appeal could be construed as challenging the factual bases for the

sentencing enhancements, those factual bases are amply supported by the record.

       Smith instead contends that the act of judicial fact finding violated his Sixth Amendment

rights. Post-Booker, this Circuit has squarely rejected that argument.

       In Rita, the Supreme Court laid to rest the claim that the sentencing court may not
       rely on facts not found by a jury:

       “This Court’s Sixth Amendment cases do not automatically forbid a sentencing court
       to take account of factual matters not determined by a jury and to increase the
       sentence in consequence. Nor do they prohibit the sentencing judge from taking


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05-6811

       account of the Sentencing Commission’s factual findings or recommended sentences.
       Rita, 127 S.Ct. at 2465-66.”

United States v. Pinkerton, 2008 WL 2224810, at *3 (6th Cir. May 29, 2008). “[T]his Court has

repeatedly held, ‘judicial fact-finding in sentencing proceedings using a preponderance of the

evidence standard post-Booker does not violate either Fifth Amendment due process rights, or the

Sixth Amendment right to trial by jury.”’ United States v. Renner, 2008 WL 2467976, at *2 (6th Cir.

June 19, 2008) (quoting United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006)); see also United

States v. Cook, 453 F.3d 775, 777 (6th Cir. 2006). In Renner, the Court rejected Smith’s Sixth

Amendment argument regarding the findings of facts used to support a firearm enhancement. This

Circuit has also specifically rejected Smith’s challenge to the substantial risk of harm to a minor

enhancement. See United States v. Edwards, 256 Fed.Appx. 791, 792 (6th Cir. 2007). Smith’s Sixth

Amendment rights, therefore, were not violated by the district court’s findings of fact in support of

the sentencing enhancements.

                                        III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s judgment.




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