                                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                                          Pursuant to Sixth Circuit Rule 206
                                                  File Name: 05a0166p.06

                            UNITED STATES COURT OF APPEALS
                                             FOR THE SIXTH CIRCUIT
                                               _________________


                                                                   X
                                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                                    -
                                                                    -
                                                                    -
                                                                        No. 03-6652
              v.
                                                                    ,
                                                                     >
 ESTIL LEE TRAMMEL,                                                 -
                                           Defendant-Appellant. -
                                                                   N
                                   Appeal from the United States District Court
                                  for the Eastern District of Kentucky at London.
                                 No. 03-00048—Danny C. Reeves, District Judge.
                                                Argued: March 8, 2005
                                          Decided and Filed: April 8, 2005
                       Before: MARTIN, GILMAN, and FRIEDMAN, Circuit Judges.*
                                                  _________________
                                                       COUNSEL
ARGUED: Stephan Charles, Manchester, Kentucky, for Appellant. John Patrick Grant, ASSISTANT
UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Stephan Charles,
Manchester, Kentucky, for Appellant. John Patrick Grant, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
                                                  _________________
                                                      OPINION
                                                  _________________
       BOYCE F. MARTIN, JR., Circuit Judge. Estil Lee Trammel appeals his sentence of fifty-seven
months of imprisonment imposed following a guilty plea to conspiracy to possess with intent to distribute
cocaine and to being a felon in possession of a firearm. On appeal, Trammel claims that the district court
erred by increasing his criminal history score by three points under section 4A1.1 of the United States
Sentencing Guidelines, based on a two-year conditionally discharged fine in Kentucky state court. While
we hold that the district court did not commit error by imposing the three-point increase in Trammel’s
criminal history score under the Guidelines, we VACATE his sentence and REMAND for resentencing
consistent with the Supreme Court’s decision in United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005).



    *
     The Honorable Daniel M. Friedman, Circuit Judge of the United States Court of Appeals for the Federal Circuit, sitting by
designation.


                                                              1
No. 03-6652            United States v. Trammel                                                          Page 2


                                                     I.
         On July 28, 2003, Estil Lee Trammel pled guilty to one count of conspiracy to possess with intent
to distribute between 400 and 500 grams of cocaine between January 2001 and June 26, 2002, in violation
of 21 U.S.C. § 846, and to one count of being a felon in possession of a firearm on or around June 26, 2002,
in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court, applying the 2002 version of the
Sentencing Guidelines, determined that the base offense level for a violation of 21 U.S.C. § 846 under
section 2D1.1 of the Guidelines was 24. The court increased this offense level to 26 pursuant to a multiple-
count adjustment under section 3D1.4 of the Guidelines given Trammel’s admitted violation of 18 U.S.C.
§ 922(g)(1). The court then applied a three-level downward adjustment for acceptance of responsibility
under section 3E1.1(a), thus resulting in a total offense level of 23.
        In calculating Trammel’s criminal history score, the court found that one point was appropriate
because Trammel had pled guilty to marijuana trafficking in Ohio state court in 1991. The court added
another criminal history point under section 4A1.1(c) of the Guidelines based on a 1999 Kentucky contempt
of court citation. The contempt of court citation stemmed from Trammel’s failure to appear in Kentucky
state court on May 19, 1999, on charges that he operated a motor vehicle with no tail lights and without
proof of insurance. When Trammel failed to appear on that date, a bench warrant was issued for his arrest.
On July 22, he made a court appearance during which he provided proof of insurance and presented
testimony regarding the tail lights, resulting in the dismissal of both of those counts. The Kentucky court
did, however, find Trammel guilty of contempt of court based on his failure to appear on May 19, and fined
him $100, of which $50 was “C/D 2 years”—that is, conditionally discharged for a period of two years.
Because the conditional discharge was in effect until July 22, 2001, the beginning activities of Trammel’s
drug conspiracy offense in the present case fell within this probationary period. The sentencing court
therefore added two additional criminal history points, under section 4A1.1(d), because Trammel was under
a criminal justice sentence (the conditional discharge) at the beginning of the underlying drug conspiracy.
This increased Trammel’s criminal history points to 4, which established a criminal history category of III.
With a total offense level of 23, and criminal history category of III, the Guidelines provided a sentencing
range of 57 to 71 months of imprisonment. The district court sentenced Trammel to 57 months of
imprisonment, at the very bottom end of the applicable range. The court explained its sentence as follows:
       Well, I have reviewed the file in this case and I am aware of the defendant’s family situation,
       the situation that he has at home . . . . And I’m mindful that the defendant has a 10-year old
       son at home. He needs to have the attention of his parent as quickly as he can. And so I do
       believe that a sentence at the bottom end of the guideline range in this particular case would
       be appropriate and would serve the purpose of punishment and [serve as] a deterrent in this
       case. . . . So it will be the sentence of the Court, pursuant to the Sentencing Reform Act of
       1984, . . . that Defendant Estil Trammel . . . be imprisoned for a term of 57 months on each
       of Counts 1 and 2, to be served concurrently, at the same time, resulting in a total term of 57
       months.
        On appeal, Trammel claims that the district court erred by increasing his criminal history score by
three points based on his two-year conditionally discharged fine for contempt of court. According to
Trammel, the contempt citation was not authorized under Kentucky law and the court therefore did not
effectively impose a conditionally discharged sentence. He also claims that even if the court did impose
an effective conditional discharge, it did not amount to a criminal justice sentence under section 4A1.1(d)
of the Guidelines. At oral argument, Trammel advanced a new claim, based on the recently decided
Supreme Court case of United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005), that this Court should
vacate his sentence and remand for resentencing because the district court sentenced him under the now-
erroneous impression that the Sentencing Guidelines are mandatory.
No. 03-6652             United States v. Trammel                                                       Page 3


                                                      II.
         We first address Trammel’s newly raised claim that resentencing is required under United States v.
Booker. Trammel did not challenge his sentence on Sixth Amendment grounds in his appellate briefs, and
he did not raise a Sixth Amendment or Booker issue in any supplemental briefing pursuant to Fed. R. App.
P. 28(j). Cf. United States v. Oliver, 397 F.3d 369, 377 n.1 (6th Cir. 2005) (finding supplemental briefing
under Rule 28(j) sufficient to raise a claim under Booker when Booker had not been decided at the time of
briefing). Instead, Trammel raised his claim—that he is entitled to resentencing under Booker—only at oral
argument. While this Court is generally suspicious of new claims advanced at oral argument, “this Court
has discretion to correct plain errors affecting important rights of criminal defendants, even when not raised
on appeal.” United States v. Graham, 275 F.3d 490, 521 (6th Cir. 2001) (exercising its discretion to
consider Apprendi issue that was not raised before the court of appeals) (emphasis added); see Fed. R. Crim.
P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to
the court’s attention.”). Because we conclude below that there was plain error in sentencing Trammel under
the pre-Booker Guidelines framework, we exercise our discretion to consider the Booker issue presented
in this case despite Trammel’s failure to raise the issue in supplemental briefing before this Court.
        We review the district court’s sentence for plain error because Trammel raised this issue for the first
time on appeal. See Booker, 125 S. Ct. at 769 (noting that whether a new sentencing hearing is required
depends on “ordinary prudential doctrines,” such as “whether the issue was raised below and whether it fails
the ‘plain-error’ test”); United States v. Hines, 398 F.3d 713, 721 (6th Cir. 2005). In reviewing for plain
error, we consider whether (1) there was an error, (2) which was plain, (3) that affected the defendant’s
substantial rights, and (4) that, in our discretionary view, seriously affects the fundamental fairness,
integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466 (1997).
       This Court has held that a defendant establishes the first two requirements of the plain-error
test—that there was an error under current law and that the error was “plain”—where the defendant was
sentenced under the pre-Booker mandatory Sentencing Guidelines, because the Guidelines are now only
advisory. See United States v. Barnett, 398 F.3d 516, 525-26 (6th Cir. 2005). In the present case, Trammel
was sentenced under the now-erroneous assumption that the Guidelines are mandatory. Thus, we hold that
Trammel has satisfied the first two requirements of the plain-error test.
        The third requirement of plain-error review generally requires the defendant to demonstrate that the
plain error “affect[ed] substantial rights.” Fed. R. Crim. P. 52(b). This normally requires the defendant to
show that the error was “prejudicial,” which usually means that the error “must have affected the outcome
of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). In United States v.
Barnett, 398 F.3d at 526-29, this Court held that a presumption of prejudice was appropriate under the third
prong of the plain-error test where a defendant was sentenced under the pre-Booker mandatory Guidelines
regime and the district court could have imposed a lower sentence in the post-Booker world. In so holding,
this Court relied on cases in which courts have presumed prejudice “where the inherent nature of the error
made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court
proceeding would have been different had the error not occurred.” Id. at 526-27. For instance, the Barnett
Court analogized the difficulty facing defendants sentenced under the pre-Booker framework to that
encountered by defendants who were denied their allocution rights and thus unable to show that their
sentence would have been more lenient had they been afforded their right to allocute. See id. at 527 (citing
United States v. Adams, 252 F.3d 276, 287 (3d Cir. 2001)). The Barnett Court also cited cases where courts
presumed prejudice based on the extraordinary difficulty of showing prejudice resulting from the
participation of alternate jurors in jury deliberations. See id. at 526 (citing Manning v. Huffman, 269 F.3d
720, 726 (6th Cir. 2001)).
       In each of these contexts, courts presumed prejudice in the plain-error inquiry because the defendant
was unable to show that the subjective decision of the court would have been different if the error had not
occurred. The Barnett Court thus concluded that a presumption of prejudice was appropriate in this context
No. 03-6652             United States v. Trammel                                                          Page 4


given the extraordinary difficulty facing defendants in showing that the subjective decision of the sentencing
judge would have been different under the post-Booker regime. This is in contrast to the normal burden on
a defendant to show prejudice under plain-error review where the claimed error is objective instead of
subjective, such as disputes involving a determination of drug quantity. As expressed in Barnett:
       Instead of speculating as to the district court’s intentions in the pre-Booker world, and trying
       to apply those intentions to predict the same court’s sentence under the post-Booker scheme,
       we are convinced that the most prudent course of action in this case is to presume prejudice
       given the distinct possibility that the district court would have imposed a lower sentence
       under the new post-Booker framework and the onerous burden he would face in attempting
       to establish that the sentencing court would have imposed such a sentence.
Id. at 529. Thus, under Barnett, we presume that Trammel has been prejudiced under plain-error review
because he was sentenced under the mandatory Guidelines framework and the district court may have
exercised its discretion to sentence him more leniently under the post-Booker regime.
        The Barnett Court was careful to note, however, that in some cases the evidence in the record may
be sufficient to rebut the applicable presumption of prejudice. Id. (“While an appellate court will normally
be unable to assess the significance of any [sentencing] error that might have been made, we can imagine
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.”) (internal
quotation marks and citation omitted). In Barnett, the Court found that a mid-range sentence was
“insufficient to rebut the presumption that Barnett was prejudiced by the imposition of a sentence under the
mandatory Guidelines.” Id. In the present case, Trammel was sentenced at the very bottom of the Guideline
range, which suggests that there is an even greater chance that the district court may have sentenced
Trammel to a lower sentence if the sentencing court had known, as we know now, that the Guidelines are
advisory. See, e.g., United States v. Hamm, No. 03-5658, 2005 WL 525232, at *3 (6th Cir. March 8, 2005)
(holding that resentencing was required under Booker where defendant was sentenced at the low end of the
applicable Guidelines range). The district court’s statement at sentencing—that a sentence at the bottom
end of the guideline range was appropriate because the defendant’s child “needs to have the attention of his
parent as quickly as he can”—further supports our conclusion that remand is appropriate. Therefore, in our
view, the evidence in the record is insufficient to rebut the presumption of prejudice applicable under
Barnett.
        In sum, because Trammel was sentenced under the Sentencing Guidelines as if they were mandatory,
rather than advisory, and because the district court might have exercised its discretion to impose a lower
sentence had it known that the Guidelines are only advisory, we hold that Trammel’s substantial rights have
been affected.
        The final step in plain-error analysis is to determine whether, in our discretion, the error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297
U.S. 157, 160 (1936). In Barnett, this Court decided that a sentence imposed under the pre-Booker regime
satisfies this requirement, even in the absence of a Sixth Amendment violation. Barnett, 398 F.3d at 529-30.
We therefore hold that this requirement is satisfied in the present case.
                                                     III.
       While remand for resentencing is required under Booker, we consider Trammel’s remaining claim
under the Guidelines because the district court will need to consider the correct Guidelines-recommended
sentence in fashioning its own post-Booker sentence on remand. See United States v. McDaniel, 398 F.3d
540, 551 (6th Cir. 2005) (“[B]ecause the district court will need to consider the Guidelines-recommended
sentences on remand, we take this opportunity to provide some guidance as to the proper interpretation of
the Guidelines provisions whose application was challenged on appeal.”).
No. 03-6652            United States v. Trammel                                                       Page 5


        On appeal, Trammel argues that the district court erred by increasing his criminal history score by
one point under section 4A1.1(c) and two points under section 4A1.1(d) based on a contempt citation issued
in Kentucky state court. On appeal, Trammel argues that: (1) the contempt citation was not a criminal
justice sentence authorized under Kentucky law; (2) the contempt citation did not effectively impose a
conditionally discharged sentence under Kentucky law; and (3) even if the citation did constitute an
effective conditional discharge, the conditional discharge does not constitute a criminal justice sentence
under the Guidelines. Each of these claims is without merit. First, the record indicates that Trammel failed
to appear for trial in Kentucky state court on May 19, 1999, and was consequently found guilty of contempt
of court on July 22. While Trammel attempts to argue that the Kentucky court lacked contempt power, he
is generally barred from collaterally attacking his state contempt of court conviction in this Court absent
a constitutional claim based upon a denial of counsel. See, e.g., Custis v. United States, 511 U.S. 485, 495-
97 (1994); United States v. Hough, 276 F.3d 884, 897 (6th Cir. 2002).
        Second, Trammel’s argument that the contempt citation did not effectively impose a conditionally
discharged sentence under Kentucky law is similarly misguided. Trammel’s claim on this issue is based
on his allegations that “[i]t’s questionable whether a fine may be probated or conditionally discharged . .
. under Kentucky law,” and that he was not given a written statement explicitly setting forth his release
conditions pursuant to section 533.030(6) of the Kentucky Revised Statutes. To the extent that Trammel
attempts to attack collaterally his state court sentence, we reiterate, as established above, that this is
generally not permitted at federal sentencing proceedings.
        Finally, despite Trammel’s claims to the contrary, the conditional discharge in this case does
constitute a criminal justice sentence under the Guidelines. Under the 2002 version of the Sentencing
Guidelines, two points are added to a defendant’s criminal history score “if the defendant committed the
instant offense while under any criminal justice sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(d). This Court has held that a term of
conditional discharge, even when imposed in connection with a fine rather than a suspended jail sentence,
is properly considered a term of probation and therefore should be included in criminal history calculations
under the Guidelines. See United States v. Rollins, 378 F.3d 535, 539-40 (6th Cir. 2004) (holding that a
two-year conditional discharge imposed under Kentucky law was properly considered for the purposes of
calculating defendant’s criminal history score). Thus, Trammel’s conditional discharge does constitute a
criminal justice sentence under the Guidelines. Because the conditional discharge was in effect until
July 22, 2001, the beginning activities of Trammel’s underlying conspiracy offense fell within this
probationary period and, thus, a two-point increase under section 4A1.1(d) of the Guidelines was
appropriate.
                                                    IV.
       For the above-stated reasons, we conclude that the district court did not err in calculating Trammel’s
criminal history score. However, we VACATE Trammel’s sentence and REMAND for resentencing
consistent with this opinion and with the Supreme Court’s decision in Booker.
