               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0084n.06
                          Filed: February 7, 2005

                                       Nos. 03-6622/6624

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )        ON APPEAL FROM THE
       Plaintiff-Appellee,                              )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE EASTERN
V.                                                      )        DISTRICT OF TENNESSEE
                                                        )
JASON HINES; KELLY EDWARDS,                             )                          OPINION
                                                        )
       Defendants-Appellants.                           )
                                                        )
                                                        )
                                                        )


BEFORE:        COLE and CLAY, Circuit Judges, and HOOD, District Judge*.

       R. GUY COLE, JR., Circuit Judge. This is a direct appeal of two related drug-trafficking

cases. Pursuant to a jury trial, Defendants-Appellants Jason Hines and Kelly Edwards were

convicted of conspiracy to distribute 500 grams or more of methamphetamine. On appeal, Hines

and Edwards claim various trial errors. Hines also seeks vacation of his sentence under Blakely v.

Washington, 542 U.S. __ (2004) and United States v. Booker, 543 U.S. __ (2005), on the ground that

the Sentencing Guidelines violate the Sixth Amendment. For the following reasons, we AFFIRM

in all respects the conviction and sentence of Kelly Edwards; as to Jason Hines, we AFFIRM his

conviction, but VACATE and REMAND for re-sentencing consistent with United States v. Booker.



       *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

                                                I.

       Jason Hines and Kelly Edwards were central participants in one of the largest drug

trafficking organizations in Tennessee. Hines and another co-conspirator, James “Red” Fowler,

were the primary contact with Mexican sources of methamphetamine and cocaine in Eastern

Tennessee. Hines supplied Fowler with methamphetamine for over two years, until Fowler began

developing his own Mexican sources.         Hines and Fowler trafficked in large amounts of

methamphetamine and cocaine. Testimony establishes that Hines and Fowler purchased as much

as 10 to 20 pounds of methamphetamine at a time, and one kilogram of powdered cocaine. Hines

and Fowler disbursed these large amounts of drugs quickly, selling at least several pounds of

methamphetamine in a month. The amounts of money involved were similarly large: testimony

establishes that Fowler would typically pay Hines $ 30,000 at one time for the purchase of drugs.

       After procuring large amounts of drugs from the Mexican sources, Hines and Fowler would

then sell smaller lots to other drug dealers. For example, Kelly Horton, a drug dealer in Cleveland,

Tennessee, typically would purchase a pound of methamphetamine from Fowler, for $9,500, and

then sell individual ounce bags for $1,400. At another time, Horton purchased four ounces from

Hines. Gary Jenkins, a drug dealer in Chattanooga, Tennessee, purchased large amounts of

methamphetamine and cocaine from both Fowler and Hines. Jenkins purchased two to four pound

lots of methamphetamine and a kilogram of cocaine from Fowler, and similar amounts from Hines.

Jenkins would then distribute the methamphetamine to street dealers who worked for him in

Chattanooga. Jenkins also purchased a hunting rifle from Hines.




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United States v. Hines; United States v. Edwards

       Kelly Edwards was employed by Red Fowler in the drug operation. Edwards worked on cars

in a garage owned by Fowler, which was located on Fowler’s property. Edwards assisted Fowler

in hiding, delivering, and selling the methamphetamine. Edwards also purchased methamphetamine

directly from the Mexican sources.

       Eventually, federal and state agents broke the back of the conspiracy, resulting in about a

dozen arrests, beginning with Red Fowler. Hines and Edwards were indicted several months later

for conspiracy to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. §

846 (conspiracy), and § 841(a)(1) and (b)(1)(A) (drug trafficking). Most of the co-conspirators

agreed to plead guilty, including Fowler, but Hines and Edwards elected to exercise their right to

a jury trial. At trial, 14 co-conspirators, including Fowler, testified as to Hines’s and Edwards’s

involvement in the conspiracy. Several officers also testified as to their involvement. There was

little or no physical evidence at trial; the evidence largely involved the testimony of co-conspirators

and arresting officers. The jury convicted both Hines and Edwards.

       After trial, Hines filed a motion for a new trial and motion for judgment of acquittal, and

Edwards filed a motion for a new trial. The district court denied these motions.

       At sentencing, the district judge determined that Hines had possessed approximately 32

pounds of methamphetamine during the course of conspiracy. The district judge also determined

that Hines was subject to a firearm enhancement. Accordingly, Hines was sentenced to 235 months

of incarceration and five years of supervised release. Edwards was sentenced to the statutory

minimum – 120 months incarceration and five years supervised release.




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Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

        Defendants-Appellants appeal their convictions and sentences, arguing various trial and

sentencing errors. After briefing was concluded, Blakely v. Washington, 542 U.S. __ (2004), was

issued, and Hines submitted an additional brief seeking re-sentencing pursuant to that opinion.

Subsequently, United States v. Booker, 543 U.S. __ (2005), was issued, resulting in a substantial

change in jurisprudence regarding the Sentencing Guidelines. Briefing on the Booker issue was

completed shortly thereafter.

                                                 II.

        Edwards seeks reversal of his conviction on the basis of the following alleged trial errors:

(1) that the district court improperly restricted cross-examination of a Government witness; (2) that

the Government improperly commented on his failure to testify; (3) that the jury instructions for the

conspiracy count were erroneous; and (4) that the cumulative effect of these errors resulted in an

unfair trial.

A.      Cross-Examination under Fed. R. Evid. 609

        At trial, defense counsel attempted to cross-examine Fowler regarding his prior felony

convictions. Edwards argues the district court limited the scope of cross-examination, apparently

in response to an objection by the prosecution. The short colloquy is as follows:

        Q. [Mitchell Bryant, defense counsel].         Mr. Fowler, you have prior felony
        convictions, don’t you, sir?

        A. [Fowler]. When, I was young, 17 years old.

        Q. Not as an adult?

        A. No other felony convictions, no.



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Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

       Q. Okay. Burglary, Whitfield County, 1987?

       A. Seventeen.

       Q. You were 17 then?

       A. Yeah. Sentenced under the Youthful Offender Act.

       Q. Okay. Some charge called criminal interference with government that you got
       12 months for?

       Mr. Piper [AUSA]. Objection, Your Honor, if Mr. Bryant is going to read from the
       NCIC I would respectfully request that he at least be aware it’s A; it’s either a crime
       of falsehood or dishonesty or B; it’s proper impeachment with a felony within the
       previous 10 years. Obviously, Mr. Fowler is not trying to hide anything with respect
       to this, but I don’t believe Mr. Bryant is allowed to go on a fishing expedition with
       respect to cross-examination.

       Mr. Bryant. Your Honor, I’m looking at the information that was provided to me by
       the government from pre-trial services. I’m trying to figure out what are felonies and
       what are not. There are three pages of them here.

       Mr. Piper. Judge I object to that, and Mr. Bryant knows better than that. And I can
       --

       The Court. Why don’t you move on to another subject, Mr. Bryant.

       Mr. Bryant. Sir?

       The Court. Just move on to another subject.

       Mr. Bryant. Yes, sir.

       A district court’s limitation of cross-examination is reviewed for an abuse of discretion. See

United States v. Green, 202 F.3d 869, 873 (6th Cir. 2000). Under Federal Rule of Evidence 609(a),

the credibility of a witness other than the accused may be attacked by admitting evidence of a prior

conviction under certain circumstances. Generally speaking, only prior felony convictions less than



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Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

ten years old, and prior convictions of a crime of dishonesty or false statement are permitted. See

FED. R. EVID. 609(a)-(b). Furthermore, juvenile convictions are generally inadmissible to attack the

credibility of an adult witness who is not the accused, unless the evidence “is necessary for a fair

determination of the issue of guilt or innocence.” FED. R. EVID. 609(d).

       Given these standards, there was no error. As an initial matter, the district court did not

specifically limit the cross-examination of Fowler. Rather, based on a suggestion from the Court,

defense counsel apparently self-regulated his questioning regarding Fowler’s prior felony

conviction. Under such circumstances, it is unclear if the district court exercised its discretion in

limiting the testimony.

       Even if we accept that the district court limited the cross-examination, there was still no

error. Testimony by Fowler establishes that his only prior felony conviction was as a juvenile, the

evidence of which is generally inadmissible. This was noted in open court before the jury, and there

was no apparent limiting instruction; accordingly, the jury had at least some evidence of Fowler’s

felony criminal history.    To the extent that evidence of other, unmentioned convictions was

excluded, no evidence establishes that such convictions are admissible under Rule 609.

Accordingly, this argument cannot support reversal.

B. Comments on Failure to Testify

       During the testimony of Detective Patrick Cook, the Government noted that Kelly Horton

did not testify in his own defense in a prior unrelated case in which he had been acquitted. Defense

counsel did not object to this comment. The relevant section of the testimony is as follows:

       Q. And what was the item?

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United States v. Hines; United States v. Edwards

        A. It was a package containing about two ounces of what tested out to be
        methamphetamine.

        Q. And Mr. Horton went to trial on this?

        A. Yes sir, he did.

        Q. And was he convicted or acquitted?

        A. No, sir, he was acquitted on it.

        Q. On the methamphetamine?

        A. Yes, sir.

        Q. He didn’t take the stand at the trial?

        A. No, sir, he did not.

The prosecution apparently made no other comments regarding any other witness’s failure to testify.

        The admission of unchallenged testimony is reviewed for plain error. FED. R. CRIM. P. 52(b);

United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000). An error is plain if: (1) there was an error

under current law; (2) the error was plain, i.e. clear or obvious; and (3) the error affected substantial

rights, i.e., it must be prejudicial. United States v. Rogers, 118 F.3d 466, 471-72 (6th Cir.1997).

Even if the first three requirements are shown, a case warrants the exercise of discretion to correct

that error only if it “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at 473. Under the Fifth Amendment, the Government may not comment on a

criminal defendant’s decision not to testify. Bagby v. Sowers, 894 F.2d 792, 797 (6th Cir. 1990).

Indirect comments on a failure to testify require reversal only if “the comments were manifestly

intended by the prosecutor as a comment on the defendant's failure to testify or were of such a



                                                  -7-
Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

character that the jury would naturally and reasonably take them to be comments on the failure of

the accused to testify.” Id. at 797-98 (citation omitted).

        Here, the Government’s comment on the failure to testify in an unrelated trial is directed

towards Kelly Horton, a co-conspirator witness, and not the accused. No evidence indicates that the

Government intended the comment as a statement concerning Edwards’s lack of testimony. Nor

does the single, short comment from the Government appear to be connected to the instant case.

        In any event, even if the comment could be imputed against Edwards, admission of the

evidence must still be plainly erroneous. Under the third element of a plain error analysis, the error

must be prejudicial such that it has a substantial effect on the rights of the accused. Rogers, 118

F.3d at 472. Furthermore, this Court should exercise its discretion to reverse only if the error affects

the “fairness, integrity, or public reputation” of this case. Id. at 473. Evidence of Edwards’s

participation in the conspiracy was overwhelming, and included the testimony of 14 co-conspirators.

Accordingly, the district court did not plainly err in allowing testimony regarding Kelly Horton’s

failure to testify.

C. Jury Instructions as to Conspiracy

        Edwards also argues that the jury instructions for conspiracy were so erroneous as to require

a new trial. The relevant portion of the district court’s jury charge regarding conspiracy is as

follows:

                A conspiracy is a kind of criminal partnership. For you to find the defendants
        guilty of the conspiracy charge, the government must prove both of the following
        elements beyond a reasonable doubt:
                First, that two or more persons conspired, or agreed, to commit the crime of
        distributing methamphetamine.

                                                 -8-
Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

               Second, that the defendants knowingly and voluntarily joined the conspiracy
       ....
               With regard to the first element – a criminal agreement – the government
       must prove that two or more persons conspired, or agreed, to cooperate with each
       other to commit the crime of distributing methamphetamine . . . .
               If you are convinced that there was a criminal agreement, then you must
       decide whether the government has proved that the defendants knowingly and
       voluntarily joined that agreement.
               This does not require proof that the defendants knew everything about the
       conspiracy, or everyone else involved, or that they were a member of it from the very
       beginning. Nor does it require proof that the defendants played a major role in the
       conspiracy, or that their connection to it was substantial. A slight role or connection
       may be enough.
               But proof that the defendants simply knew about a conspiracy, or were
       present at times, or associated with members of the group, is not enough, even if they
       approved of what was happening or did not object to it . . . .
               What the government must prove is that the defendants knew the
       conspiracy’s main purpose, and that they voluntarily joined it intending to help
       achieve or advance its goals, this is essential.

       Since defendants did not object to the jury charge at trial, we review for plain error. United

States v. Morrow, 977 F.2d 222, 226 (6th Cir. 1992). A circuit court must view the jury charge as

a whole to determine whether it fairly and adequately submits the issue and law to the jury. See

United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993) (citation omitted).

       Here, the instructions on conspiracy were not plainly erroneous. The district court’s

instructions essentially tracked the language and organization of the Sixth Circuit Pattern Jury

Instruction regarding conspiracy. See SIXTH CIRCUIT PATTERN JURY INSTRUCTIONS §§ 3.01(A)-

3.04. The district court properly omitted the element requiring an overt act in furtherance of the

conspiracy, since an overt act is not required for the purposes of 21 U.S.C. § 846. United States v.

Shabani, 513 U.S. 10, 11 (1994) (holding that Congress eliminated the overt act requirement in drug

conspiracy cases).

                                                -9-
Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

       We recognize that the elements of a § 846 conspiracy are: “(1) an agreement to violate drug

laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.”

United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999). Though the district court did not

explicitly require the participation element, it did explain that “A slight role or connection may be

enough” to determine that the defendants had joined the conspiracy. Viewing, as we must, the jury

charge as a whole, such language was sufficient to avoid plain error.

       This holding is buttressed by the overwhelming evidence that Edwards was an essential

participant in the conspiracy. Fourteen co-conspirators testified that Edwards was an employee of

Fowler, and participated in the procurement, storage and delivery of large amounts of

methamphetamine. Given this evidence, the error did not affect the “substantial rights of the

accused,” or the “fairness, integrity or public reputation of judicial proceedings.” Rogers, 118 F.3d

at 472-73.

D.     Cumulative Effect

       Edwards also argues that the cumulative effect of these errors support a new trial, even if

individually such errors do not warrant reversal. Edwards notes that the cumulative effect of

individual errors may result in a trial setting that is fundamentally unfair. See Walker v. Engle, 703

F.2d 959, 963 (6th Cir. 1983).

       While in some situations cumulative error might be enough to support reversal, this is not

such a case. As noted above, the district court’s limitation of Fowler’s cross-examination and the

Government’s comments on Horton’s failure to testify cannot be considered evidentiary error.

Accordingly, the only arguable error by the district court was the failure to include the participation

                                                - 10 -
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United States v. Hines; United States v. Edwards

element in the jury charge for conspiracy. For the aforementioned reasons, this error is insufficient

to support reversal.

                                                  III.

       On appeal, Hines seeks reversal of his conviction and a new sentencing, arguing that: (1)

there was insufficient proof to support the conviction; and (2) the district court erred in determining

the amount of drugs and the imposition of a firearm enhancement. In supplemental briefing, Hines

also argued that his sentence violated the Sixth Amendment under Blakely and Booker.

A. Sufficiency of the Evidence

       Hines argues that the district court erred in denying his motion for judgment of acquittal or

a new trial, since the evidence was insufficient to support his conviction. Hines notes that no drugs

or firearms were found in his possession at the time of the arrest. Hines further notes that evidence

of drug trafficking activity at trial consisted solely of the testimony of co-conspirators, all of whom

had received favorable treatment from the Government based on their plea agreements, or promises

to cooperate.

       We review a motion for judgment of acquittal de novo, examining “whether after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979) (emphasis in original); see also United States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996).

We review for an abuse of discretion a district court’s denial of a motion for a new trial based on

the weight of the evidence. See United States v. Pierce, 62 F.3d 818, 825 (6th Cir. 1995).




                                                 - 11 -
Nos. 03-6622/6624
United States v. Hines; United States v. Edwards

       Here, the district court’s denial of a motion for acquittal or new trial is not error.

Circumstantial and testimonial evidence are sufficient to support a jury finding of conspiracy. See

United States v. Price, 258 F.3d 539, 544 (6th Cir. 2001); Keeton, 101 F.3d at 52. Here, 14 co-

conspirators testified in a consistent and detailed manner that Hines was a major supplier of

methamphetamine in Tennessee, routinely buying and selling very large amounts of drugs over a

long period of time. Furthermore, the lack of physical evidence is not an indication of the strength

or weakness of the case. It is undisputed that Hines was arrested and indicted several months after

the initial arrest of Fowler and other co-conspirators. Therefore, it is reasonable to assume that

Hines would cleanse his residence of any evidence pointing to his involvement in the conspiracy,

such as drugs, guns, or money. Given this overwhelming amount of evidence of guilt, the district

court did not err in denying the motion for judgment of acquittal or new trial.

B.     Sentencing Enhancements and Booker

       Hines also appeals the district court’s findings that he was responsible for approximately 32

pounds of methamphetamine pursuant to U.S.S.G. § 2D1.1(c), and that he had used a firearm in

connection with the drug crime pursuant to U.S.S.G. § 2D1.1(b).

       Prior to Booker, we reviewed for clear error a district court’s factual findings regarding the

amount of drugs attributable to the defendant or whether he possessed a firearm. United States v.

Bartholomew, 310 F.3d 912, 923 (6th Cir. 2002) (amount of drugs); United States v. Johnson, 344

F.3d 562, 565 (6th Cir. 2003) (possession of a firearm). Consistent testimony from co-conspirators

established that Hines was an active and major drug supplier, regularly moving several pounds of

methamphetamine a month to regional drug dealers over the course of several years. Given this

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United States v. Hines; United States v. Edwards

testimony, the district court’s finding that 32 pounds of methamphetamine was attributable to Hines

is, if anything, a conservative estimate. As to the firearms enhancement, Hines himself admits to

possessing firearms during the period of his drug-trafficking activity. Accordingly, under U.S.S.G.

§ 2D1.1, commentary n.3, Hines was required to establish that it was clearly improbable that the

firearms were used in connection with the offense. Though Hines argues that the firearms were used

solely for hunting, evidence suggests that the firearms may have served a dual purpose. Hines sold

a firearm to another drug dealer, and apparently displayed his firearms in a gun cabinet with a glass-

door in his residence, where some of the drug deals likely occurred.

        Although the district court’s factual findings are supported by the record, Hines is

nonetheless entitled to re-sentencing under Booker. In Booker, the Supreme Court held that under

the Sixth Amendment “[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.” Booker,

543 U.S. __, slip op. at 20 (Stevens J., for the Court). Given this Sixth Amendment right, the

Sentencing Guidelines no longer have the force and effect of law and are “effectively advisory.”

Id., slip op. at 2 (Breyer, J., for the Court).

        Significant guidance as to Hines’s sentence may be found under the facts of Booker. In

Booker, the jury found the defendant had possessed 92.5 grams of crack cocaine. Id., slip op. at 2

(Stevens, J. for the Court). After conviction, the district court then found that the defendant

possessed an additional 566 grams of crack cocaine, and sentenced him commensurate with the




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United States v. Hines; United States v. Edwards

Guidelines. Id., slip op. at 3 (Stevens, J., for the Court). On appeal, the Seventh Circuit held that

the Guidelines violated the Sixth Amendment. Id.

        The Supreme Court affirmed the Seventh Circuit. In particular, the Supreme Court noted:

        In respondent Booker’s case, the District Court applied the Guidelines as written and
        imposed a sentence higher than the maximum authorized solely by the jury’s verdict.
        The Court of Appeals held Blakely applicable to the Guidelines, concluded that
        Booker’s sentence violated the Sixth Amendment, vacated the judgement of the
        District Court, and remanded for new sentencing. We affirm the judgment of the
        Court of Appeals and remand the case. On remand, the District Court should impose
        a sentence in accordance with today’s opinions, and, if the sentence comes before the
        Court of Appeals for review, the Court of Appeals should apply the review standards
        set forth in this opinion.

Id., slip op. at 24-25 (Breyer, J., for the Court).

        There is no meaningful distinction between Hines’s sentence and Booker’s sentence, at least

for the purposes of the Sixth Amendment. Based on the indictment and the jury verdict form, the

jury found that Hines had possessed more than 500 grams of methamphetamine. However, at

sentencing, the trial judge found that Hines had possessed approximately 32 pounds of

methamphetamine. Though substantial evidence supports the district court’s finding, that conclusion

occurred under the prior sentencing regime. The same analysis also applies to the district court’s

firearms enhancement.

        The Government argues that re-sentencing under Booker is inappropriate since Hines “never

argued that the Guidelines or the procedures used to determine Guidelines factors are

unconstitutional under Apprendi or the . . . Sixth Amendment.” However, this is not entirely

accurate. Shortly after the issuance of Blakely, Hines filed a supplemental brief arguing that the

district court’s factual findings violated the Sixth Amendment, effectively preserving this issue for

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United States v. Hines; United States v. Edwards

appeal. United States v. Cordoza-Estrada, 385 F.3d 56, 59 (1st Cir. 2004) (noting that supplemental

letter briefing filed shortly after issuance of Blakely was sufficient to preserve the issue for appeal).

        Since, however, Hines raised no Apprendi, Fifth Amendment, or Sixth Amendment claims

in district court, the Government correctly notes that Hines must hurdle the requirements of plain

error. See also id. (noting that though the defendant preserved the Blakely issue with the filing of

a supplemental letter brief shortly after the issuance of that opinion, plain error is still the correct

review given that no such claims were made in the district court); United States v. Hughes, No. 03-

4172 , — F.3d —, slip op. at 10 (4th Cir. Jan. 24, 2005) (noting that Blakely and Booker issues

raised for the first time on appeal must be reviewed for plain error); Booker, 543 U.S. __, slip op.

at 24-25 (Breyer, J., for the Court) (encouraging appellate courts to apply a “plain error” analysis

in determining whether re-sentencing is appropriate).

        The Government argues that there was no plain error since Hines’s substantial rights were

not affected by the district court’s factual findings, and there was therefore no prejudice.         See

Rogers, 118 F.3d at 472 (noting that the third element of a plain error analysis requires that

substantial rights are effected by the error, such that there is prejudice). In particular, the

Government notes that the jury heard evidence establishing that Hines: (1) was responsible for 5 to

15 kilograms of methamphetamine; and (2) possessed a firearm during the relevant time period. The

Government then claims that since the jury convicted Hines, such evidence must have been accepted

by the jury, and any error was harmless.

        This argument ignores the impact and applicability of Booker. As an initial matter, the fact

that the jury heard such evidence is immaterial. The only factual finding by the jury memorialized

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United States v. Hines; United States v. Edwards

in the record indicates that Hines possessed 500 grams or more of methamphetamine. “It is not the

province of this Court to divine the jury’s interpretation of the evidence . . . .” S.E.C. v. Yun, 148

F. Supp. 2d 1287, 1297 (M.D. Fla. 2001); see also Booker, 543 U.S. __, slip op. at 3 (Stevens, J.,

for the Court) (noting that the jury’s finding of “500 or more grams” of cocaine on the verdict form

determined the amount of drugs for sentencing before the district court).             Where the jury

memorializes a specific factual finding, such as the amount of drugs possessed by Hines, we will

adhere to that finding. And where the jury made no finding, such as with Hines’s possession of a

firearm, it is improper to speculate.

       In any event, the Government’s view of an effect on the substantial rights of Hines is unduly

limited. As noted by the remedial majority, Booker returns substantial discretion to the sentencing

judge to depart above and below the Guidelines range, so long as such sentences are reasonable.

Id. at 21-22 (Breyer, J., for the Court) (“The district courts, while not bound to apply the Guidelines,

must consult those Guidelines and take them into account when sentencing); id. at 19 (noting that

a Court of Appeals should review post-Booker sentences for “reasonableness”). Remand is the only

appropriate way, in this case, to allow the parties to argue for the exercise of the district court’s

discretion as authorized by Booker. Id. at 25 (Breyer, J., for the Court) (remanding Fanfan’s case

despite the fact that his sentence did not violate the Sixth Amendment, in order to allow the

Government the opportunity to seek a higher sentence); Hughes, No. 03-4172 , — F.3d —, slip op.

at 14 n.8 (“[T]he determination of reasonableness depends not only on an evaluation of the actual

sentence imposed but also the method employed in determining it.”) Indeed, as noted by Chief

Judge William Wilkens of the Fourth Circuit, and the Commission Chair of the United States

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United States v. Hines; United States v. Edwards

Sentencing Commission from 1984 to 1995, an appellate court’s presumption that re-sentencing

would result in the same, or a substantially similar sentence, “would be tantamount to performing

the sentencing function ourselves.” Hughes, No. 03-4172 , — F.3d —, slip op. at 14 n.8. As

appellate courts should review – and not determine – the decisions of the district court, we must

vacate and remand for re-sentencing.

                                                IV.

         For the foregoing reasons, we AFFIRM the conviction and sentence of Kelly Edwards in

all respects; AFFIRM the conviction of Jason Hines in all respects; and VACATE and REMAND

the sentence of Jason Hines for proceedings consistent with this opinion and United States v. Booker,

supra.




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