                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0844n.06
                                Filed: October 13, 2005
                                File Name: 05a0844n.06
                                Filed: October 13, 2005

                                           No. 04-2391

                             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
Craig Earl Cronk,                                  )   WESTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )



BEFORE:        MERRITT, MOORE, and SUTTON, Circuit Judges.

       MERRITT, Circuit Judge. Defendant Craig Earl Cronk appeals his sentence for being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Specifically, the defendant

argues on appeal that the district court’s sentencing determination was erroneous in light of the

Supreme Court’s decision in United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005). For the

reasons discussed below, we affirm the sentence of the district court.

                                       I. BACKGROUND

       On July 22, 2004, defendant Craig Earl Cronk pled guilty to being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). The district court adopted the presentence report’s

recommendation and assigned the defendant a base offense level of 20 pursuant to U.S.S.G. §
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United States v. Cronk

2K2.1(a)(4)(A), as the defendant committed the instant offense subsequent to sustaining a felony

conviction of a controlled substance offense.          The defendant was previously convicted of

maintaining a methamphetamine laboratory on June 10, 2002. The district court then decreased the

base offense level by 2 pursuant to U.S.S.G. § 3E1.1(a) for acceptance of responsibility and granted

the government’s motion for an additional one level reduction pursuant to U.S.S.G. § 3E1.1(b),

arriving at a total offense level of 17. Given the defendant’s criminal history category of VI and a

total offense level of 17, the federal sentencing guidelines called for a sentence of between 51 and

63 months of imprisonment.           The district court sentenced the defendant to 60 months of

imprisonment.     The district court also imposed an alternative sentence of 60 months of

imprisonment.1 The defendant then filed this timely appeal.

                                          II. DISCUSSION

                                                  A.

       The defendant appeals from his sentence, arguing that the district court imposed his sentence

under the erroneous belief that the federal sentencing guidelines were mandatory, in violation of

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

concluded that the Sixth Amendment as construed in Blakely v. Washington, 542 U.S. 296 (2004),




       1
        The district court stated:

                As an alternative sentence, in the event that the guidelines are
                declared to be advisory by the United States Supreme Court, the
                Court imposes the same sentence, the Court finding no reason to
                suggest that the guideline sentence is not an appropriate sentence
                whether they’re mandatory or advisory.

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United States v. Cronk

does apply to sentencing pursuant to the federal sentencing guidelines. Thus, Booker made

applicable to the federal sentencing guidelines the Supreme Court’s past holding that “[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” or else the Sixth Amendment is violated.

Booker, __ U.S. at __, 125 S. Ct. at 756. In Booker, the Court also expressly severed and excised

18 U.S.C. § 3553(b)(1), which had required sentencing courts to impose a sentence within the

applicable sentencing guidelines range, subject to departures in certain limited cases. Id. at 765.

Consequently, under Booker, the federal sentencing guidelines are now advisory in all cases,

including those that do not involve a Sixth Amendment violation. Id. at 757. In so holding, the

Court expressly stated that its “remedial interpretation of the Sentencing Act” must be applied “to

all cases on direct review.” Id. at 769. In Booker, the Court made it clear that its remedial scheme

should apply not only to those defendants whose sentences had been imposed in violation of the

Sixth Amendment, but also to those defendants who had been sentenced under the mandatory

guidelines without suffering a Sixth Amendment violation. United States v. Barnett, 398 F.3d 516,

524 (6th Cir. 2005) (citing Booker, __ U.S. at __, 125 S. Ct. at 765). Because this case was pending

on direct review when Booker was decided, the holdings of Booker are applicable in the case at bar.

       In light of the Supreme Court’s decision in Booker, there was no Sixth Amendment violation

in the present case. Booker made clear that a Sixth Amendment violation occurs when a district

court issues “a sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict” based upon any fact (other than a prior conviction) not “admitted by the

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United States v. Cronk

defendant or proved to a jury beyond a reasonable doubt.” Booker, __ U.S. at __, 125 S. Ct. at 756.

Here, the district court did not impose sentencing enhancements to increase the defendant’s offense

level. Although the district court calculated the defendant’s criminal history category based on his

prior convictions, which increased the applicable sentencing range, existing case law establishes that

Apprendi v. New Jersey, 530 U.S. 466 (2000), does not require the fact and nature of prior

convictions to be determined by a jury. See Barnett, 398 F.3d at 524-25. Because the district court

did not rely on judge-found facts to enhance the defendant’s sentence beyond the base offense level,

the defendant’s Sixth Amendment rights were not violated in this case. We must still decide,

however, whether the Supreme Court’s remedial scheme requires remand here. Booker, __ U.S. at

__, 125 S. Ct. at 769; Barnett, 398 F.3d at 524.

        As the defendant failed to raise a Sixth Amendment challenge to his sentence before the

district court, appellate review is for plain error. Before an appellate court can correct an error not

raised in the district court, there must be “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]

substantial rights.’” If all three conditions are met, the appellate court may exercise its discretion

to correct the forfeited error, but only if “(4) the error ‘seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.’” Johnson v. United States, 520 U.S. 461, 466-67 (1997);

see United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998).

        In interpreting Booker, this Court has held that it is plain error for a defendant to be

sentenced under a mandatory sentencing guidelines regime that has since become advisory. Barnett,

398 F.3d at 526. We also now presume that the defendant’s substantial rights were affected when

a district court sentenced a defendant under the erroneous belief that the federal sentencing

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United States v. Cronk

guidelines were mandatory. Id. at 529. We made it clear in United States v. Barnett, however, that

this presumption of prejudice could be rebutted in those rare cases where “the trial record contains

clear and specific evidence that the district court would not have, in any event, sentenced the

defendant to a lower sentence under an advisory Guidelines regime.” Id.

       In United States v. Chandler, the district court imposed the defendant’s sentence under the

erroneous belief that the sentencing guidelines were mandatory, and this Court affirmed that we

presume prejudice when a defendant was sentenced under mandatory, rather than advisory,

guidelines. 419 F.3d 484, 486 (6th Cir. 2005). The Chandler court, however, found that the

defendant’s substantial rights were not affected because the district court not only determined the

defendant’s sentence pursuant to the guidelines, but also announced an identical alternative sentence

treating the guidelines as advisory. Id. Accordingly, the Chandler court held that the defendant’s

sentence did not violate the Sixth Amendment. Id.

       Similarly, in this case, the district court determined the defendant’s sentence pursuant to the

federal sentencing guidelines and imposed an identical alternative sentence in anticipation of the

guidelines being advisory only. The district court’s imposition of an identical alternative sentence

is clear and specific evidence that the district court would not have sentenced the defendant to a

lower sentence under an advisory guidelines regime. See United States v. Strbac, 129 Fed. Appx.

235, 238 (6th Cir. 2005) (unpublished) (noting that the fact that the district court imposed an

identical alternative sentence treating the guidelines as advisory “seems to be precisely the type of

‘clear and specific evidence’ that is needed to rebut the presumption of prejudice”). Thus, we hold

that the defendant’s substantial rights were not affected by the district court’s use of the mandatory

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United States v. Cronk

federal sentencing guidelines and hence the district court did not violate the plain error standard

when it made its sentencing determination.

                                                       B.

       Having concluded that the district court’s erroneous belief that the federal sentencing

guidelines were mandatory did not constitute plain error under the circumstances of this case, we

must still determine whether the sentence imposed by the district court was “reasonable.” Booker,

__ U.S. at __, 125 S. Ct. at 766. As this Court has recently noted, “review for ‘reasonableness’ is

not limited to consideration of the length of the sentence.” United States v. Webb, 403 F.3d 373, 383

(6th Cir. 2005) (quoting United States v. Crosby, 397 F.3d 103, 114 (2d Cir. 2005)). A sentence

may be unreasonable “when the district judge fails to ‘consider’ the applicable Guidelines range or

neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what

the judge deems an appropriate sentence without such required consideration.” Id.

       The district court in reaching its sentencing determination properly calculated and considered

the appropriate guidelines range. See 18 U.S.C. § 3553(a)(4). The district court properly assigned

the defendant a base level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4) by concluding that the

defendant’s conviction for maintaining a methamphetamine laboratory constituted a controlled

substance offense. The district court then applied a U.S.S.G. § 3E1.1(a) reduction and granted the

government’s motion for a U.S.S.G. § 3E1.1(b) reduction, which is warranted where “the defendant

has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying

authorities of his intention to enter a plea of guilty.” U.S.S.G. § 3E1.1(b). After determining the

defendant’s criminal history category, the district court considered the applicable guidelines range

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United States v. Cronk

of between 51 and 63 months of imprisonment. The district court then sentenced the defendant to

60 months of imprisonment. In light of the guidelines’ recommended sentencing range, this

sentence was reasonable.

       Additionally, the district court properly considered several other pertinent factors listed in

18 U.S.C. § 3553(a) in reaching its sentencing determination. The district court noted the

defendant’s lengthy criminal history, which included convictions for receiving and concealing stolen

property, malicious destruction of property, possession of marijuana, maintaining a

methamphetamine laboratory, and assault. Furthermore, the instant offense was committed less than

two years following the defendant’s release from custody for a prior conviction. Given the

defendant’s prior convictions, it was reasonable for the district court to place substantial weight on

the defendant’s criminal history in reaching its sentencing determination. See 18 U.S.C. §

3553(a)(1) (“The court, in determining the particular sentence to be imposed, shall consider . . . the

nature and circumstances of the offense and the history and characteristics of the defendant.”). The

presentence report indicates that the defendant has a history of domestic violence and suffers from

continuing substance abuse problems. As a result, the district court recommended that while in

prison the defendant participate in a drug treatment program and anger management counseling. See

18 U.S.C. § 3553(a)(2)(D) (“The court, in determining the particular sentence to be imposed, shall

consider . . . the need for the sentence imposed . . . to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment in the most effective manner.”).

Thus, the record indicates that the district court reviewed and weighed all of the relevant information

provided by the defendant, the government, and the probation office before arriving at the

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United States v. Cronk

defendant’s sentence. As a result, we find nothing in the record that indicates that the defendant’s

sentence is an unreasonable one with regard to the length, the factors considered, or the procedures

employed by the district court in arriving at the defendant’s sentence.

                                       III. CONCLUSION

       For the foregoing reasons, we affirm the sentencing determination of the district court.




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