                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0299n.06
                            Filed: April 19, 2005

                                            No. 04-1309

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff - Appellee,                             )
                                                         )   ON APPEAL FROM THE
v.                                                       )   UNITED STATES DISTRICT
                                                         )   COURT FOR THE EASTERN
RICHARD LEE OLIVER,                                      )   DISTRICT OF MICHIGAN.
                                                         )
       Defendant - Appellant.                            )
                                                         )
                                                         )
                                                         )


Before: Boggs, Chief Judge, Cook and Bright*, Circuit Judges.

       PER CURIAM. Richard Oliver, a previously convicted felon, pleaded guilty to violating

18 U.S.C. § 922(g)(1), which makes unlawful the possession of a firearm by a convicted felon. He

challenges only his sentence, which was based in part on criminal history points assessed for his

having initiated the present offense within ten years of his being sentenced in a prior case. Oliver

challenges the assessment of criminal history points, alleging that the court erred in applying Section

1B1.3 of the federal sentencing guidelines.

       The record shows no error, but we vacate the sentence and remand for resentencing under

the now advisory, rather than mandatory, guidelines.



       *
         The Honorable Myron H. Bright, Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
No. 04-1309
United States v. Richard Lee Oliver
Page 2

       The indictment in this case charged Oliver with possessing firearms “on or about May 31,

2002.” At sentencing, in accordance with USSG §§ 4A1.1(b) and 4A1.2(e)(2), the district court

assessed Oliver two criminal history points because Oliver commenced the present offense within

ten years of being sentenced in a previous case to be imprisoned for one year, on a manslaughter

conviction. The prior sentence was imposed on March 7, 1990.

       The district court’s determination that Oliver commenced the present offense within ten

years of the prior sentence was premised on Oliver’s admission that he obtained the guns in question

three or four years before May 31, 2002.1 Oliver admitted, in other words, that he obtained the guns

within ten years of being sentenced in the prior case.

       May 31, 2002 – the day given on the indictment in the present case – is more than ten years

after the earlier sentencing on March 7, 1990. Three or four years before May 31, 2002 (literally,



       1
           There is some question whether Oliver’s admission was properly before the district court,
and thus whether the court could rely on it for purposes of increasing the statutory maximum penalty
(namely, the mandatory sentencing guideline range). The sentencing memorandum filed in the
district court by Oliver’s counsel acknowledges that Oliver admitted to the FBI that he had owned
the subject firearms “for several years,” and the memorandum appears to acknowledge to the district
court the truth of Oliver’s admission to the FBI. See J.A. at 11-12. On appeal, too, Oliver concedes,
through counsel, that he admitted to the FBI that “he had owned the firearms for about three or four
years.” Appellant’s Br. at 3. In his reply brief, however, Oliver asserts that he never admitted to
the court that he got the guns three or four years before May 31, 2002. See Reply Br., passim.
  Oliver’s position appears to be that while the admission was true, he made it only to the FBI, not
to the court. Thus, relying on United States v. Blakely, 124 S.Ct. 2531 (2004), Oliver argues that
the time when he got the guns is a fact neither admitted nor proven, and the district court therefore
could not rely on it to increase the statutory maximum penalty.
  Oliver’s Blakely argument rises or falls on the factual question whether, at his plea or sentencing
hearings, Oliver admitted that he got the guns years before May 31, 2002. We have no way of
knowing, because Oliver has not prepared the transcripts of those hearings. Any appeal from the
district court’s finding as to this question of fact has therefore been waived. Because we vacate the
sentence and remand for resentencing, Oliver can revisit the factual question with the district court.
No. 04-1309
United States v. Richard Lee Oliver
Page 3

May 31, 1998 or 1999) is within ten years of March 7, 1990. The question is what dates matter for

purposes of the sentencing guidelines.

        Oliver insists that the earliest relevant date can be only days before May 31, 2002, because

that was the time when he is convicted of having the guns. Application note eight to USSG §

4A1.2(e)(2) provides, however, that the phrase “commencement of the instant offense” includes all

“relevant conduct” as defined by § 1B1.3. When the offense consists of a continuous act or

condition extending over a significant length of time, “relevant conduct” under § 1B1.3 includes

commission of the same offense at points before the time specified in the indictment. A felon's

owning guns on a continuous basis, though before the time specified in the indictment is “relevant

conduct.” Oliver engaged in this relevant conduct of obtaining and keeping the firearms, by his own

admission, within ten years of being sentenced on March 7, 1990. The district court did not err in

its application of the sentencing guidelines.

        Nevertheless, because the district court erroneously considered itself bound by mandatory

guidelines, we must vacate the sentence and remand for resentencing in light of United States v.

Booker, 125 S.Ct. 738 (2005). See United States v. Barnett, 398 F.3d 516, 524-31 (6th Cir. 2005);

United States v. Oliver, 397 F.3d 369 (6th Cir. 2005). But see United States v. Bruce, 396 F.3d 697

(6th Cir. 2005).

        Accordingly, we affirm the district court’s application of the sentencing guidelines, but we

vacate Oliver’s sentence, and remand the case to the district court for reconsideration of the

sentence, considering the guidelines as advisory, rather than mandatory.
