                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0827n.06
                            Filed: October 7, 2005

                                           No. 04-4114

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE SOUTHERN
                                       )                 DISTRICT OF OHIO
JOSEPH OSCAR FRYDMAN,                  )
                                       )                         OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, GIBBONS, and GRIFFIN Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Joseph Oscar Frydman

(“Frydman”) appeals his sentence for conspiracy to commit extortion in violation of 18 U.S.C.

§ 371. Frydman asserts that he was sentenced in violation of United States v. Booker, 125 S. Ct. 738

(2005). Because we agree that Frydman’s sentence violated Booker, we VACATE Frydman’s

sentence and REMAND to the district court for resentencing consistent with Booker.

                                       I. BACKGROUND

       On January 14, 2004, Frydman pleaded guilty to conspiracy to commit extortion pursuant

to a plea agreement which Frydman had reached with the government. At the plea hearing, Frydman

admitted to having attempted to collect money from Steve Roudebush (“Roudebush”), a man who

owed Frydman $6,000, by detaining Roudebush in Frydman’s office and threatening Roudebush

with bodily harm. Frydman also admitted that during this detention, he “struck [Roudebush] in the
chest, arm and back with the blunt end of [a] hatchet.” Joint Appendix (“J.A.”) at 37-38 (Tr. of Plea

Hr’g at 5-6).

       Before sentencing, a Pre-Sentence Report (“PSR”) was prepared by the United States

Probation Office. The PSR included a recitation of the underlying offense conduct and noted that

Frydman “used the flat part of the [hatchet] blade to hit Roudebush instead of the sharp point.

However, the blows caused bruises on Roudebush’s body.” J.A. at 246 (PSR at 5). As a result of

the bruises inflicted by Frydman’s hatchet blows to Roudebush’s body, the PSR recommended that

Frydman receive a two-level sentence enhancement for bodily injury to the victim pursuant to

United States Sentencing Guideline (“USSG”) § 2E2.1(b)(2)(A). At no time did Frydman or his

defense counsel object to the assertion in the PSR that the hatchet caused bruising. Frydman did,

however, file several motions regarding sentencing, including a motion for a downward departure

based on diminished capacity pursuant to USSG § 5K2.13 and a motion to reconsider the sentencing

calculation pursuant to Blakely v. Washington, 542 U.S. 296 (2004). The government also filed a

motion for a downward departure based on Frydman’s substantial assistance pursuant to USSG

§ 5K1.1.

       At sentencing the district court agreed with the PSR’s recommendation that a two-level

enhancement for bodily injury to the victim be applied to Frydman’s base-offense level. The district

court then calculated Frydman’s total offense level along with his criminal history category and

concluded that the appropriate guidelines range was fifty-seven to seventy-one months’

imprisonment. The district court, however, granted both Frydman’s motion for a downward

departure based on diminished capacity and the government’s motion for a downward departure

based on Frydman’s substantial assistance. Accordingly, the district court concluded that the



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appropriate guidelines range was now eighteen to twenty-four months’ imprisonment. The district

court ultimately sentenced Frydman to eighteen months’ imprisonment and denied Frydman’s

motion for reconsideration pursuant to Blakely. Frydman then filed this timely appeal.

                                          II. ANALYSIS

       On appeal Frydman alleges that the district court sentenced him in violation of Booker.

Specifically Frydman alleges that under Booker: (1) his sentence violates the Sixth Amendment in

that the district court relied upon judge-found facts, namely that bodily injury occurred to

Roudebush, in order to enhance Frydman’s sentence; and (2) the district court erred in sentencing

Frydman under the mistaken belief that the guidelines were mandatory. While we do not believe

that a Sixth Amendment error occurred, we nonetheless agree that the sentence violated Booker and

thus remand the case for resentencing.

       Under Booker, a Sixth Amendment violation only occurs when a defendant’s sentence is

increased based upon a fact which is not “admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 125 S. Ct. at 756. Therefore, if a defendant admits a fact before the

district court, the district judge may rely upon that fact to enhance a defendant’s sentence without

creating any constitutional infirmity. We have previously held that a defendant’s statement that the

defendant raises no objections to the content of a PSR constitutes an admission of the facts contained

in the PSR. United States v. Stafford, 258 F.3d 465, 476 (6th Cir. 2001); see also United States v.

Clements, No. 04-5414, 2005 WL 1506280, at *5 (6th Cir. June 22, 2005) (concluding that a

defendant’s failure to object to a PSR’s calculation of a quantity of drugs constituted an admission

of that quantity for Booker purposes).




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       Applying these principles to Frydman’s sentence, we conclude that no Sixth Amendment

violation occurred as a result of the district court’s reliance on the bodily injury to Roudebush in

order to enhance Frydman’s sentence. Although Frydman did not admit to this fact during his plea

hearing, this fact was included in the PSR. At sentencing Frydman did not challenge the validity

of this fact. On the contrary, Frydman specifically admitted when questioned by the district court

that he had no objections to the PSR other than those already filed.1 J.A. at 75-76 (Sentencing Tr.

at 2-3). We therefore conclude that Frydman admitted to bruising Roudebush with the hatchet, and

thus the district court did not violate the Sixth Amendment by relying on this fact at sentencing.

       Despite the fact that no Sixth Amendment violation occurred, we nevertheless conclude that

Frydman’s sentence violated Booker. Under United States v. Barnett, 398 F.3d 516, 525, 529 (6th

Cir. 2005), a rebuttable presumption of prejudice and error requiring reversal arises where the

district court sentences a defendant under the mistaken belief that the guidelines are mandatory. The

district court in this case made it clear at sentencing that it felt that it was bound by the federal

sentencing guidelines. See J.A. at 224 (Sentencing Tr. at 6) (noting that the district court sentenced

the defendant “pursuant to the sentencing guidelines,” that despite Blakely, “the sentencing

guidelines must be followed by courts,” and that “the guidelines . . . mandate” the two-level

enhancement for bodily harm). Indeed, the district judge encouraged the defendant to file an appeal

in order to benefit from a favorable ruling in Booker. J.A. at 224 (Sentencing Tr. at 6). Although

the district court exercised discretion at sentencing and departed below the relevant guidelines range,

       1
        Frydman made several objections to the PSR prior to the sentencing hearing but never
challenged the assertion that the hatchet blows Frydman inflicted on Roudebush resulted in bruising.
On the contrary, Frydman appears to have admitted to the bruising in his objection to the PSR’s
assessment of how many times Frydman struck Roudebush. J.A. at 263 (Addendum to PSR at 1)
(“The defendant recalls that he hit Mr. Roudebush no more than four times, which he feels is
consistent with the bruises on Mr. Roudebush’s person.”).

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the district court acted under the mistaken belief that the federal sentencing guidelines mandated the

circumstances under which downward departures were permitted along with the amount of

downward departures. See United States v. McCraven, 401 F.3d 693, 700 (6th Cir. 2005)

(remanding the case for resentencing under Booker despite the district court’s earlier grant of the

defendant’s motion for a downward departure). Under Booker, a district court’s sentencing

discretion is no longer so tightly penned. We therefore conclude that the district court’s sentencing

of Frydman violated Barnett.

                                       III. CONCLUSION

       For the reasons discussed above, we VACATE Frydman’s sentence and REMAND to the

district court for resentencing consistent with Booker.




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