                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0189p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                            X
                                       Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                             -
                                                             -
                                                             -
                                                                 No. 04-5359
               v.
                                                             ,
                                                              >
 JEREMY SMITH,                                               -
                                    Defendant-Appellant. -
                                                            N
                              Appeal from the United States District Court
                           for the Western District of Tennessee at Memphis.
                          No. 03-20103—Jon Phipps McCalla, District Judge.
                                          Argued: March 18, 2005
                                    Decided and Filed: April 22, 2005
            Before: DAUGHTREY and CLAY, Circuit Judges; GRAHAM, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: K. Jayaraman, Memphis, Tennessee, for Appellant. V. Rae Oliver, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: K. Jayaraman,
Memphis, Tennessee, for Appellant. V. Rae Oliver, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        CLAY, Circuit Judge. Defendant Jeremy Smith appeals from the 120 month sentence
entered by the district court following his conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). Because the district court’s sentencing calculation under the then-
mandatory United States Sentencing Guidelines violated Defendant’s Sixth Amendment rights, we
VACATE Defendant’s sentence and REMAND for resentencing in light of United States v. Booker,
543 U.S. ___, 125 S. Ct. 739 (2005).




        *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                        1
No. 04-5359               United States v. Smith                                                              Page 2


                                             I.    BACKGROUND
         A.       The Offense
        On October 22, 2002, Memphis police officers Phillip Logan and Kevin Perry responded to
a robbery report at the home of an individual named Ernesto Piez. Piez claimed that a woman had
come to his house and attempted to solicit money for sex by lifting her skirt and asking “do you
want?” Piez told the woman that he did not have any money. Suddenly, a man emerged from a
white car, came to the door, and asked if he could use the telephone. The man then drew a pistol,
grabbed Piez’s hair and said “give me money, give me money.” Piez told the man that he did not
have any money, and according to Piez, the woman gave the man “ten pesos.” The man searched
Piez’s pockets, then left in the white car. Piez, believing that the woman was actually with the man,
chased the woman from his house with a pair of scissors.
        After hearing Piez’s story, Officers Logan and Perry contacted a neighborhood informant
and asked him whether he knew of anyone who met the description of the man and woman. The
informant gave the officers information that led them to a nearby house on Wrenwood Street, which
the officers knew from experience to be a drug house. After arriving at the Wrenwood house, the
officers obtained consent to search from a female occupant. Three men and two women were
present at the time of the search, which uncovered a gun matching Piez’s description of the weapon
brandished by the male robber. The gun was found in close proximity to one of the male occupants
of the Wrenwood house, who was later identified as Defendant.
        Following the search, Officer Logan brought Piez to the Wrenwood house. The occupants
of the house were lined up in the driveway, and Piez was able to observe them while seated in a
police car. Piez identified a man, Defendant, and a woman, Angela Elliot, as the individuals who
attempted to rob him. Both Defendant and Elliot were arrested.
         B.       Defendant’s Trial and Sentencing
        Defendant was indicted and tried solely under 18 U.S.C. § 922(g), felon in possession of a
firearm. At trial, the jury heard testimony relating to attempted robbery, however on more than one
occasion, the district court noted that the only issue before the jury was Defendant’s guilt as a felon
in possession of a firearm. For example, during defense counsel’s cross-examination of Officer
Perry, the court explicitly stated that “the only two issues before the jury are the knowing possession
of a firearm question and then, of course, the interstate commerce question . . . it’s not a robbery
case.” (Joint Appendix (“J.A.”) at 54, ¶ 11-16, 19.) During defense counsel’s cross-examination
of Piez, the court once again noted that “we’re just here to decide whether or not there was a firearm.
This is not a case about whether     or not there was a robbery or an aggravated assault or anything
else.” (J.A. at 68, ¶ 9-12.)1
        Despite the court’s statements regarding robbery, the jury heard testimony from Defendant’s
co-conspirator in the alleged robbery, Angela Love. Love is not Angela Elliot, the woman identified
by Piez as one of the robbers, and Love was not present at the Wrenwood house on the day of the
robbery or arrested for the robbery. Love testified that she and Defendant went to Piez’s house to
get money, and that the gun and white car they used belonged to her boyfriend, Jeff Edmondson.
Love also testified that she knew Piez prior to the robbery attempt, and that she and Piez had used
drugs together several times in the past. Conversely, Piez testified that he did not know the woman
who attempted to rob him, and he denied using drugs with Angela Love. Piez was also unable to

         1
          Additionally, during defense counsel’s cross-examination of Officer Logan, the prosecutor objected to
questioning relating to whether the officers were called to Piez’s home for a robbery. The district court sustained the
objection “because of the nature of the charge in the case.” (J.A. at 26, ¶ 18.)
No. 04-5359               United States v. Smith                                                                Page 3


identify Defendant at trial as the man who attempted to rob him, although Piez did positively
identify a photograph of Defendant taken at the time of his arrest.
         The jury convicted Defendant under § 922(g). In preparation for sentencing, the probation
department submitted a presentence report calculating Defendant’s sentence under the Guideline for
robbery, which calls for a base offense level of 20. U.S. SENTENCING GUIDELINES MANUAL
§ 2B3.1(a) (2002). The Guideline for firearms, § 2K2.1(c)(1)(A), states that where the defendant
used or possessed a firearm in connection with the attempted commission of another offense, the
district court is to apply the guideline for attempt, conspiracy, or solicitation, § 2X1.1, “in respect
to that other offense, if the resulting offense level is greater than that determined” under § 2K2.1
generally. U.S.S.G. § 2K2.1(c)(1)(A). The presentence report determined that Defendant used a
firearm in connection with an attempted robbery, and therefore applied the cross-reference to
§ 2X1.1; the application of § 2X1.1, in turn, led to the application of the robbery Guideline, which
has a higher base offense level than the firearms Guideline. Coupled with Defendant’s criminal
history category of VI, the sentencing range using the robbery Guideline2 was 110 to 137 months.
Because the statutory maximum sentence for § 922(g) is ten years, the presentence report
recommended a sentence of 120 months imprisonment.
        Defendant filed written objections to the presentence report, arguing that because he was
indicted and convicted of being a felon in possession of a firearm, and not robbery or attempted
robbery, his sentence should be calculated under the firearm Guideline without cross-referencing
the attempt, conspiracy, or solicitation Guideline. The firearm Guideline, § 2K2.1(a)(6)(A), has a
base offense level of 14, and with Defendant’s criminal history score it would have yielded a
sentencing range of 37-46 months.
          At the sentencing hearing before the district court, Defendant reiterated his argument that
the district court had no basis for sentencing him under the robbery Guideline, given that he was
neither charged with nor convicted of robbery. Defendant also argued that the evidence presented
at trial would not support a finding that he committed or attempted to commit robbery, or
alternatively, that he had a principal role in robbery. Defendant noted that although Love implicated
him as her co-conspirator in attempted robbery, her statements that both the gun and car belonged
to her boyfriend, as well as her claim that she had “gotten high” with Piez several times, cast doubt
upon Defendant’s role in the attempted robbery. Defendant also pointed out Piez’s inability to
identify him in the courtroom, and the inconsistency between Love’s testimony and Piez’s regarding
drug use. Defendant surmised that in applying the robbery guideline, the court was obviously taking
Love’s and Piez’s testimony into account; given the problems with those testimonies, Defendant
argued that the district court could not apply the robbery Guideline.
        Unpersuaded by Defendant’s arguments, the district court adopted the sentencing calculation
set forth in the presentence report. The court opined that “the facts fully support the facts as set out
in the presentence report . . . [it] is appropriate for the robbery guideline to be used in this particular
case.” (J.A. at 83). Because of Defendant’s lengthy criminal history, the court imposed the 120
month statutory maximum sentence. Defendant now appeals that sentence.
                                               II.    DISCUSSION
        Because Defendant failed to raise a Sixth Amendment argument before the district court, we
apply plain error review to his contention that his sentence runs afoul of Booker. See United States
v. Davis, 397 F.3d 340, 350 (6th Cir. 2005). In order to find plain error, we must find: “(1) that an
error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the

         2
           18 U.S.C. § 924(a)(2) provides, “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be
fined as provided in this title, imprisoned not more than 10 years, or both.”
No. 04-5359           United States v. Smith                                                    Page 4


error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the
fairness, integrity or public reputation of the judicial proceedings.” United States v. Koeberlein, 161
F.3d 946, 949 (6th Cir. 1998) (citing United States v. Johnson, 520 U.S. 461, 467 (1997)).
        As to the first two prongs of the plain error test, our post-Booker decisions hold that where
the district court sentenced the defendant in manner that violated the Sixth Amendment, an error
occurred which was plain or obvious. See, e.g., United States v. Milan, 398 F.3d 445, 451(6th Cir.
2005); United States v. Oliver, 397 F.3d 369, 378-80 (6th Cir. 2005). In the present case, the district
court’s finding that Defendant attempted to commit robbery increased his sentencing range from the
37-46 month sentence authorized by the firearm Guideline to 110-137 months imprisonment under
the robbery Guideline. Defendant never admitted to the robbery, and although the jury heard some
testimony relating to Defendant’s participation in an attempted robbery, it made no finding that
Defendant committed any crime other than the one he was charged with, felon in possession of a
firearm. Furthermore, “the fact that the jury heard such evidence is immaterial,” as “‘it is not the
province of this Court to divine the jury’s interpretation of the evidence.’” United States v. Hines,
398 F.3d 713, 721 (6th Cir. 2005) (quoting S.E.C. v. Yun, 148 F. Supp. 2d 1287, 1297 (M.D. Fla.
2001)). Defendant’s Sixth Amendment rights were thus “violated during the sentencing process
because the district court relied on judge-found facts to impose [a sentence] that could not have been
imposed based solely on facts found by the jury beyond a reasonable doubt.” United States v.
McDaniel, 398 F.3d 540, 548 (6th Cir. 2005). Therefore, a plain or obvious error occurred at
sentencing.
        We also find that the error affected Defendant’s substantial rights, because “the district court
unconstitutionally increased [Defendant’s] sentence beyond that which was supported by the jury
verdict or [Defendant’s] criminal history.” Oliver, 397 F.3d at 379-80. By finding that Defendant
committed attempted robbery, the district court more than doubled, and possibly tripled, the sentence
Defendant would have received under a straightforward application of § 2K2.1. As the district
court’s fact-finding clearly determined the length of Defendant’s sentence, we find that the third
prong of the plain error test has been met. See United States v. Cotton, 535 U.S. 625, 632 (2002)
(stating that a finding that the defendant’s substantial rights have been affected “usually means that
the error must have affected the outcome of the district court proceedings”); see also McDaniel, 398
F.3d at 549 (concluding that defendants’ substantial rights were affected at sentencing because they
received sentences two and three times longer than “the maximum Guidelines sentence supported
by the jury’s fact-finding”); Milan, 398 F.3d at 451 (finding that defendant’s substantial rights were
affected because “the error determined the outcome of the district court proceedings in the sense that
the sentence [defendant] received . . . depended on the consideration of facts he did not admit and
which were not proven to a jury”) (emphasis in original).
        Finally, we find that the district court’s fact-finding, in violation of the Sixth Amendment,
seriously affected the fairness, integrity or public reputation of the judicial proceedings. Federal
criminal sentencing “has now been substantially altered” by Booker. United States v. Barnett, 398
F.3d 516, 530 (6th Cir. 2005); cf. United States v. Hughes, 396 F.3d 374, 380 (4th Cir. 2005) (noting
that “Booker wrought a major change in how federal sentencing is to be conducted,” and concluding
that plain error test was met). Failing to remand Defendant’s sentence “‘would diminish the
integrity and public reputation of the judicial system and would also diminish the fairness of the
criminal sentencing system.’” Oliver, 397 F.3d at 380 (quoting United States v. Bostic, 371 F.3d
865, 877 (6th Cir. 2004)). We therefore must remand Defendant’s case for resentencing.
No. 04-5359        United States v. Smith                                           Page 5


                                  III.      CONCLUSION
        For the reasons set forth above, we VACATE Defendant’s sentence and REMAND the case
for resentencing in light of Booker.
