                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0590n.06
                                  Filed: July 12, 2005

                                           No. 04-5906

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                                                        )    THE WESTERN DISTRICT OF
KEVIN BERNARD PEARSON,                                  )    TENNESSEE
                                                        )
       Defendant-Appellant.                             )


Before: SILER and GIBBONS, Circuit Judges; LAWSON, District Judge*

       PER CURIAM. Defendant Kevin B. Pearson pled guilty to one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g). He appeals his sentence of 235 months

followed by three years of supervised release. Because the district court erred when it sentenced him

under the Sentencing Guidelines, we REVERSE and REMAND for resentencing.

                                                 I.

       In July 2004, Pearson pled guilty to one count of being a felon in possession of a firearm

after the government agreed to dismiss a charge of being in possession of a firearm with an

obliterated serial number. His prior felonies include robbery, burglary, aggravated burglary,

aggravated assault, and escape. He was arrested in connection with the shooting of an innocent



       *
       The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 04-5906
United States v. Pearson

bystander at a convenience store in 2003. Although Pearson admitted to the police that he owned

the firearm that was used at the shooting, he denied being the shooter.

        Because Pearson’s firearm possession charge was committed during the commission of

another offense, the Sentencing Guidelines provide that he could be sentenced as if he committed

the underlying crime, i.e., attempted murder. This cross-reference, however, was not utilized

because sentencing Pearson under the Armed Career Criminal Act (“ACCA”) resulted in an even

higher Guideline range. Pearson objected to the applicability of both the cross-reference and the

ACCA. He claimed that both enhancements violated the Sixth Amendment because they rely on

facts not proven beyond a reasonable doubt. The district court overruled the objections and

sentenced Pearson to 235 months of imprisonment, the highest sentence in his Guideline range.

                                                    II.

        Sixth Amendment errors that have been preserved below are reviewed de novo, while error

which has not been preserved is reviewed for plain error. United States v. McDaniel, 398 F.3d 540,

546 (6th Cir. 2005).      Pearson preserved the Sixth Amendment challenge to his sentence by

objecting to the sentencing enhancements below, and de novo review is warranted. However,

because the district court also committed plain error, we will focus our discussion on the four-part

plain error test articulated in United States v. Oliver, 397 F.3d 369 (6th Cir. 2005). We may reverse

Pearson’s sentence if there is error that is plain that affects his substantial rights. Id. at 378. If these

conditions are met, we must still choose to exercise our discretion and reverse if the error “seriously

affects the fairness, integrity, or public reputation of [the] judicial proceedings.” Id. (citing Johnson

v. United States, 520 U.S. 461, 466 (1997)).

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No. 04-5906
United States v. Pearson

       We need not determine the applicability of the ACCA in this case because error occurred

when the district court sentenced Pearson under the Guidelines as if they were mandatory. United

States v. Hudson, 405 F.3d 425, 444 (6th Cir. 2005); United States v. Barnett, 398 F.3d 516, 527 (6th

Cir. 2005). This error is now plain, McDaniel, 398 F.3d at 549, and we assume that the error

affected Pearson’s substantial rights because the record below does not contain the requisite “clear

and specific evidence that the district court would not have, in any event, sentenced [him] to a lower

sentence under an advisory Guidelines regime” if it were allowed to consider a broader array of

sentencing factors. Barnett, 398 F.3d at 529.

       We choose to exercise our discretion and reverse and remand this case for resentencing. “As

our Court has observed in the wake of Booker, the court of appeals ought not assume that a

defendant’s sentence under the new discretionary sentencing regime would be the same and

therefore that a remand is superfluous.” Hudson, 405 F.3d at 444 (citing Oliver, 397 F.3d at 381

n.3). Because Pearson meets all four prongs of the plain error test, his case would also be remanded

under de novo review.

       REVERSED and REMANDED.




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