                                                Filed:   April 12, 2006

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 04-4224(L)
                              (CR-03-195)


UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus



JASON OMA MILAM,

                                                Defendant - Appellant.



                              O R D E R


     The court amends its opinion filed April 6, 2006, as follows:

     On page 2, first paragraph of opinion text, line 9 -- the word

“minimum” is corrected to read “maximum.”

                                          For the Court - By Direction



                                             /s/ Patricia S. Connor
                                                     Clerk
                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 04-4224
JASON OMA MILAM,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 04-4225
DEWAYNE LEE MILAM,
             Defendant-Appellant.
                                       
           Appeals from the United States District Court
      for the Southern District of West Virginia, at Beckley.
              Joseph Robert Goodwin, District Judge;
                Charles H. Haden II, District Judge.
                           (CR-03-195)

                      Argued: December 2, 2005

                       Decided: April 6, 2006

  Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.



Vacated and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Gregory joined. Judge Shedd wrote an
opinion concurring in part and dissenting in part.
2                      UNITED STATES v. MILAM
                              COUNSEL

ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.
John Lanier File, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appel-
lee. ON BRIEF: Mary Lou Newberger, Federal Public Defender,
Charleston, West Virginia, for Appellant Jason Oma Milam; Jason D.
Parmer, Hinton, West Virginia, for Appellant Dewayne Lee Milam.
Kasey Warner, United States Attorney, Charleston, West Virginia, for
Appellee.


                              OPINION

NIEMEYER, Circuit Judge:

   In these cases, we hold that facts stated in a presentence report may
not, at sentencing, be deemed to be admissions by the defendant suffi-
cient to bypass the Sixth Amendment right to a jury trial as articulated
in United States v. Booker, 125 S. Ct. 738 (2005), even though the
defendant, who had been given the presentence report before sentenc-
ing, did not object to the facts. We therefore conclude that the district
court violated the defendant’s Sixth Amendment rights in each case
when it relied on facts stated in the presentence report to enhance the
defendant’s sentence beyond the statutory maximum. We vacate the
sentences in these two appeals and remand for resentencing.

                                   I

  During September and October 2002, agents with the Tri-Lateral
Drug and Violent Crime Task Force conducted an investigation of
drug trafficking in Beckley, West Virginia, by Jason and Lee Milam,
who are brothers. Using cooperating witnesses, the agents made three
controlled purchases of cocaine powder and "Ecstasy" (3,4-
methylene-dioxymethamphetamine) pills from the Milams during
September and October 2002. After additional evidence was obtained
during searches of the Milams’ residences, the two were charged in
a seven-count indictment with trafficking in cocaine and Ecstacy.
                       UNITED STATES v. MILAM                        3
Each pleaded guilty to Count 6, which charged the two with aiding
and abetting each other on October 2, 2002, in distributing an unspec-
ified quantity of Ecstasy, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. During the plea colloquy, the brothers admitted to partici-
pating in a sale to a confidential informant of 51 pills of Ecstasy for
$20 each.

   In preparation for sentencing, the Probation Office prepared a pre-
sentence report in which the Probation Officer concluded, pursuant to
statements taken from Jason and Lee, as well as from independent
sources, that Jason and Lee had, during the relevant period, purchased
amounts of cocaine and Ecstasy equivalent to 157.7 kilograms of
marijuana under the Sentencing Guidelines. In making that calcula-
tion, the Probation Officer included 80 pills of Ecstacy purchased by
Jason, 500 pills purchased by Lee, and specified amounts of cocaine
purchased by each. Converting these quantities to their marijuana
equivalents, the Probation Officer proposed a sentencing level of 26
for their relevant conduct. The Probation Officer also proposed a two-
level enhancement for each brother because a firearm was possessed
in connection with the drug trafficking. Finally, the Probation Officer
recommended that no downward adjustment be given to either brother
for acceptance of responsibility because each had tested positive for
drugs while released on bond.

   At sentencing, Lee Milam objected to the amount of drugs attri-
buted to him, contending that he should be sentenced only on the
basis of 51 pills of Ecstasy, the quantity to which he admitted in
pleading guilty. He also objected to the firearm enhancement and to
the Probation Officer’s recommendation to deny him credit for accep-
tance of responsibility. The district court overruled in part Lee’s
objections to the drug amount. The court found that 580 Ecstasy pills
should be imputed to him, as well as the cocaine that he sold himself
and the cocaine that was found in Jason’s trunk. Accordingly, the
court found that the relevant conduct included the purchase of the
equivalent of 87 kilograms of marijuana, yielding a base offense level
of 24. The court denied Lee a downward adjustment for acceptance
of responsibility because of his continuing criminal activity after
arrest. The court sustained Lee’s objection with respect to the firearm
enhancement. The court sentenced Lee to 51 months’ imprisonment,
4                      UNITED STATES v. MILAM
which was at the bottom of the range of 51-63 months for an offense
level of 24 and a criminal history category of I.

   At sentencing, Jason Milam objected to the Probation Officer’s rec-
ommendation to deny him credit for acceptance of responsibility. He
did not object to the drug quantity attributed to him or to the firearm
enhancement. The district court overruled Jason’s objection and
adopted the presentence report’s factual finding that Jason’s relevant
conduct included the purchase of drugs equivalent in amount to 157.7
kilograms of marijuana and that Jason possessed a firearm in connec-
tion with drug trafficking. The district court sentenced Jason to 87
months’ imprisonment, which was at the bottom of the range of 87
to 108 months for an offense level of 28 and a criminal history cate-
gory of I.

    From the sentences entered, both Lee and Jason appealed.

                                   II

   The government properly concedes that Lee Milam’s sentence vio-
lated his Sixth Amendment rights under United States v. Booker, 125
S. Ct. 738 (2005). Lee pleaded guilty to aiding and abetting in the dis-
tribution of an unspecified quantity of Ecstasy. The 51 pills to which
Lee admitted in his guilty plea would lead to an offense level of 12
and a sentencing range of 12 to 18 months. Instead, the district court
found, over Lee’s objection, that he should be accountable for a
greater quantity of drugs, which resulted in an offense level of 24 and
a sentencing range of 51 to 63 months. In these circumstances, we
take note of plain error and vacate Lee’s sentence, remanding for
resentencing. See United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).

                                  III

   Jason Milam makes a Booker argument similar to Lee’s. He and
Lee pleaded guilty to the same count — aiding and abetting in the dis-
tribution of an unspecified quantity of Ecstasy. At his plea hearing,
Jason, like his brother, admitted to having distributed at most the 51
Ecstasy pills involved in the controlled purchase on October 2, 2002.
                       UNITED STATES v. MILAM                          5
He argues that the sale to which he admitted should have resulted in
an offense level of 12 with a sentencing range of 12 to 18 months.
Instead, the district court found that he should be accountable for the
quantity of drugs stated in his presentence report, which, along with
the firearm enhancement, resulted in an offense level of 28, with a
sentencing range of 87 to 108 months. The district court’s sentence
of 87 months exceeded the 18 months permitted by his guilty plea,
and Jason therefore contends that his Sixth Amendment rights, as
articulated in Booker, were violated.

   The government contends that Jason’s circumstances are different
because Jason, unlike Lee, did not object to the proposed findings of
drug quantity and firearm involvement contained in the presentence
report, and his failure to object constituted an admission of those facts
for sentencing purposes. Specifically, the government contends that
the "defendant’s failure to object [to the presentence report] was func-
tionally the same as admitting the facts." It argues:

    The [district] court’s use of defendant’s failure to object to
    significant provisions of the presentence report as admis-
    sions is consistent with common practice and common
    sense. Certainly defendant was aware that the presentence
    report was important in the sentencing process, and that his
    lack of objection would be treated as an admission. There is
    no reason to assume that his experienced defense counsel
    failed to so advise him — defendant asserts no such claim
    and does not accuse his sentencing counsel of incompe-
    tence, and, in fact, defendant’s appellate counsel acknowl-
    edges that counsel at sentencing may have had legitimate
    strategic reasons for not objecting to the relevant conduct
    amount. Furthermore, the district court advised defendant at
    the plea hearing that it could not determine what an appro-
    priate sentence would be until it received the presentence
    report. At sentencing the court asked Jason if he had read
    the presentence report, if he had gone over it with his law-
    yer, and if he understood it, to all of which he replied in the
    affirmative. Only then did the court actually formally adopt
    the report.

The government relies on Federal Rule of Criminal Procedure
32(i)(3)(A), which authorizes the district court to "accept any undis-
6                      UNITED STATES v. MILAM
puted portion of the presentence report as a finding of fact," and on
U.S.S.G. § 6A1.2(b), which provides that "parties must state in writ-
ing any objections, including objections to material information . . .
contained in or omitted from" the presentence report. It points out that
when such an objection is made, the district court is directed to
resolve the objection at the sentencing hearing pursuant to Rule
32(i)(3), as it did with respect to Lee’s objection to drug quantity. See
U.S.S.G. § 6A1.3(b). The government cites to a line of cases in which
we have concluded that a defendant’s failure to object justifies the
district court’s reliance on the presentence report for factual matters.
See United States v. Thompson, 421 F.3d 278, 285-86 (4th Cir. 2005),
cert. denied, 126 S. Ct. 1463 (2006); United States v. Gilliam, 987
F.2d 1009 (4th Cir. 1993).

   These cases relied on by the government address only how a dis-
trict court may discharge its factfinding responsibility during sentenc-
ing under Rule 32(i)(3)(A). In Thompson, we approved the process by
which the district court found the fact of prior convictions, which is
specifically exempted from the Booker holding. Indeed, we noted that
whether the defendant objected to or acquiesced in the presentence
report’s recitation of criminal history was irrelevant to our holding
because no question of fact existed extraneous to the fact of the prior
convictions. Thompson, 421 F.3d at 284 n.4.

   And in Gilliam, we noted that, although the government bears the
burden of proving by a preponderance of the evidence that quantity
of drugs for which a defendant should be held accountable at sentenc-
ing, this burden can be met in several ways, including the defendant’s
failure to object to a recommended finding in a presentence report
found to be reliable by the court. Id. at 1013 (citing United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990)). Terry, the case on which
Gilliam relied, is part of a line of pre-Booker cases holding that "[a]
mere objection to the finding in the presentence report is not suffi-
cient. The defendant has an affirmative duty to make a showing that
the information in the presentence report is unreliable, and articulate
the reasons why the facts contained therein are untrue or inaccurate."
916 F.2d at 162 (emphasis added); see also, e.g., United States v.
Kiulin, 360 F.3d 456 (4th Cir. 2004); United States v. Carter, 300
F.3d 415 (4th Cir. 2002).
                        UNITED STATES v. MILAM                           7
   The problem with the government’s argument is its failure to rec-
ognize a distinction between those factual issues committed by Rule
32(i)(3) to the court for resolution and those factual issues committed
by Booker to a jury. Booker makes certain facts resolvable only by a
jury unless the defendant admits the facts so as to render irrelevant
the Sixth Amendment protections that attach to finding them.

   "[A]ny fact (other than prior conviction) that increases the maxi-
mum penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt." Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v. United States, 526
U.S. 227, 243 n.6 (1999)). Such facts are considered "elements" of the
offense, not sentencing facts, and proof of them must satisfy the
requirements of the Sixth Amendment. Id. at 478; Ring v. Arizona,
536 U.S. 584, 609 (2002); United States v. Gaudin, 515 U.S. 506,
522-23 (1995). The Sixth Amendment not only commits any issue of
fact that constitutes an element of the offense to a jury, it also requires
that the fact be proved beyond a reasonable doubt, and the defendant
must, in the process, enjoy the presumption of innocence. Apprendi,
530 U.S. at 484 (citing In re Winship, 397 U.S. 358, 363 (1970)).
Consistent with these Sixth Amendment protections, the process can-
not "presume" the existence of a fact that must be proved to the jury
by the government. Sandstrom v. Montana, 442 U.S. 510, 521-23
(1979). Such a presumption — which results from the shifting bur-
dens prescribed by Rule 32(i)(3) and U.S.S.G. § 6A1.3 — would con-
flict with "the overriding presumption of innocence with which the
law endows the accused and which extends to every element of the
crime." Id. at 522 (quoting Morissette v. United States, 342 U.S. 246,
275 (1952)).

  Thus, any fact that increases the maximum penalty for a crime,
even though previously treated as part of the sentencing process, must
now be treated as an element of the offense, and as to that element,
a defendant enjoys the protections of the Sixth Amendment. See
Booker, 125 S. Ct. at 756.

   The law is well established on how these Sixth Amendment protec-
tions can be bypassed. If the defendant expressly waives his Sixth
Amendment rights, consents to factfinding by the court, or admits the
fact otherwise committed to the jury, the Sixth Amendment protec-
8                      UNITED STATES v. MILAM
tions are avoided. See Apprendi, 530 U.S. at 488 (observing that no
question arises concerning the right to jury trial or the standard of
proof when a defendant admits earlier convictions); Blakely v. Wash-
ington, 542 U.S. 296, 310 (2004) (noting that when a defendant
pleads guilty, "the State is free to seek judicial sentence enhancements
so long as the defendant either stipulates to the relevant facts or con-
sents to judicial factfinding").

   Any admission of fact must, of course, be of sufficient clarity and
kind to justify taking the fact from the jury. To presume, infer, or
deem a fact admitted because the defendant has remained silent, how-
ever, is contrary to the Sixth Amendment. See Sandstrom, 442 U.S.
at 521-24; Morissette, 342 U.S. at 274-75; United States v. United
States Gypsum Co., 438 U.S. 422, 435 (1978) (noting that an element
of a criminal offense "cannot be taken from the trier of fact through
reliance on a legal presumption"). A presumption may not shift the
burden of persuasion to the defendant. See Patterson v. New York,
432 U.S. 197, 214 (1977); Sandstrom, 442 U.S. at 524. Even when
the government’s facts go unanswered or unobjected to, the court may
not in a criminal case tried to a jury direct a verdict in favor of the
government. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (cit-
ing Sparf v. United States, 156 U.S. 51, 105-06 (1895)).

   In this case, the presentence report attributed the equivalent of
157.7 kilograms of marijuana to Jason, and the district court adopted
that fact. While Jason did admit to a sale that involved 51 pills (equiv-
alent to approximately 3.7 kilograms of marijuana) in pleading guilty,
he stood silent when the court adopted the finding that he be account-
able for 157.7 kilograms of marijuana as part of his relevant conduct.
The government argues that Jason’s failure to object should be taken
as an admission because Jason was represented by counsel and chose
not to dispute the finding. But to presume an admission of an element
of the crime from the failure to object would violate the well-
established protections of the Sixth Amendment against presuming
guilt or a finding of a fact against the defendant. Even if a defendant
remains silent or fails to object to the government’s evidence, the
government retains the burden of proving all elements of the offense
beyond a reasonable doubt.

  The Sixth and Eighth Circuits, which have applied Rule 32 as the
government urges, have failed to make the distinction between factual
                       UNITED STATES v. MILAM                          9
issues committed to the court for resolution and factual issues com-
mitted by Booker to the jury with Sixth Amendment protections.
Accordingly, they have continued to apply the traditional principles
for finding sentencing facts under Federal Rule of Criminal Procedure
32(i)(3) and U.S.S.G. § 6A1.3(b), even though some fact issues are
now, under Booker, governed by Sixth Amendment principles. See,
e.g., United States v. DeCarlo, 434 F.3d 447 (6th Cir. 2006) (holding,
without analysis, that the failure to object to a fact contained in the
presentence report is an admission of that fact (citing United States
v. Adkins, 429 F.3d 631 (6th Cir. 2005) (relying on pre-Booker prece-
dent to hold same))); United States v. Cullen, 432 F.3d 903 (8th Cir.
2006) (same). Cf. United States v. Morrisette, 429 F.3d 318 (1st Cir.
2005) (holding that there was no Sixth Amendment violation where
the defendant was sentenced based on a drug quantity not determined
by a jury, when the defendant and his counsel conceded the accuracy
of the prosecution’s recitation of relevant facts and failed to object to
the presentence report). Because the cases from these two circuits nei-
ther recognize the Sixth Amendment protections for facts that consti-
tute an element of the offense under the Apprendi line of cases nor
address the effect of Booker on factfinding during sentencing, we do
not find them persuasive authority for disposition of the case before
us, which concededly involved facts that supported a sentence "ex-
ceeding the maximums authorized by the facts established by a plea
of guilty or a jury verdict." Booker, 125 S. Ct. at 756.

   Because the district court’s factfinding with respect to both Lee and
Jason’s sentences violated their Sixth Amendment rights, we take
note of the plain error, see Hughes, 401 F.3d at 555-56, vacate their
sentences, and remand for resentencing.

                 SENTENCES VACATED AND CASES REMANDED
                                     FOR RESENTENCING

SHEDD, Circuit Judge, concurring in part and dissenting in part:

  I concur in the majority’s decision to vacate Lee Milam’s sentence
and to remand his case for resentencing. However, I dissent from the
majority’s decision to vacate Jason Milam’s sentence.

  It is clear that an admission by a defendant can support a sentence
exceeding the maximum authorized by the facts established by a plea
10                     UNITED STATES v. MILAM
of guilty or a jury verdict. See United States v. Booker, 543 U.S. 220,
244 (2005). Although other circuits have found that a defendant’s
failure to object to the presentence report ("PSR") alone constitutes
an admission for Booker purposes, see, e.g., United States v. Gibson,
434 F.3d 1234, 1251 (11th Cir. 2006); United States v. McCully, 407
F.3d 931, 933 (8th Cir. 2005), cert. denied, 126 S. Ct. 305 (2005), I
do not believe that we need to decide that specific issue.

   Here, the PSR expressly noted that Jason "admitted" to purchasing
the relevant quantity of drugs. See J.A. 130. At the beginning of the
sentencing hearing, in response to the district court’s inquiry, Jason
stated that he had read the PSR, discussed it with his attorney, and
understood its contents. See J.A. 92. Before adopting the PSR, the dis-
trict court asked whether Jason had any objections. Although Jason’s
counsel noted an objection to the district court’s denial of a credit for
acceptance of responsibility, he affirmatively represented that Jason
had no additional objections. See J.A. 99. Further, after the district
court stated its finding of the amount of drugs attributable to Jason
(which is the amount in the PSR), the district court inquired whether
Jason or his attorney wished to comment on the guideline calculation;
Jason’s attorney answered in the negative. See J.A. 102.

   Under these circumstances, where the PSR expressly stated that
Jason had admitted to the drug amount and Jason expressly stated that
he did not object to the PSR, I believe that Jason admitted the drug
amount for Booker purposes. Therefore, I would affirm Jason’s sen-
tence.
