                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0509n.06
                             Filed: July 19, 2007

                                           No. 05-6808

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
v.                                                        )        DISTRICT OF TENNESSEE
                                                          )
LARRY HILL,                                               )                 OPINION
                                                          )
       Defendant-Appellant.                               )


BEFORE: NORRIS, GILMAN, and SUTTON, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. In March 2005, defendant Larry Hill pleaded guilty to

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to 110

months of imprisonment and three years of supervised release. Hill appeals his sentence, arguing

that the district court’s finding that he used the firearm to commit a robbery was unreasonable.

       Following his plea, the district court held a sentencing hearing at which a number of

witnesses testified, including the robbery victim, the arresting police officer, and a co-defendant.

From all accounts, the victim was unloading beer from a delivery truck when he was robbed at

gunpoint. Hill was arrested in the area and identified by the victim as the assailant.

       The district court determined that the robbery qualified as relevant conduct when it calculated

Hill’s advisory Guidelines range. After cross-referencing his offense with robbery pursuant to §

2K2.1(c)(1) and § 2B3.1 of the Guidelines, the court arrived at a base offense level of twenty. The
No. 05-6808
US v. Hill

district court then adjusted this base offense level to twenty-six, pursuant to § 2B3.1(b)(2)(B),

because Hill used a firearm during the commission of the robbery. When combined with a criminal

history category of V, the advisory Guidelines range was 110 to 137 months. After taking into

consideration the sentencing factors set out in 18 U.S.C. § 3553(a), the district court sentenced him

to 110 months of imprisonment. Hill now contends that evidence used to establish that he was the

robber was insufficient because there was conflicting testimony regarding the color of the shirt worn

by the robber, and thus he may have been false identified. He also contends that judicial fact-finding

is prohibited following the decision in United States v. Booker, 543 U.S. 220 (2005).

        We review a sentencing court’s decision for reasonableness. United States v. Wells, 473 F.3d

640, 643 (6th Cir. 2007). “Booker did not eliminate judicial fact-finding. Instead, the remedial

majority gave district courts the option, after calculating the Guideline range, to sentence a defendant

outside the resulting Guideline range.” United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005),

cert. denied, 127 S. Ct. 129 (2006). Courts are directed to use the same method to calculate a

defendant’s Guidelines range as they would have done pre-Booker, which means finding facts to

support a sentencing enhancement by a preponderance of the evidence. United States v. Barton, 455

F.3d 649, 658 (6th Cir.), cert. denied, 127 S. Ct. 748 (2006); United States v. Dupree, 323 F.3d 480,

491 (6th Cir. 2003). Once a defendant’s Guidelines range is calculated, courts take into account all

of the relevant statutory factors to reach a sentence that is “sufficient” but not greater than necessary

to comply with the aims of 18 U.S.C. § 3553(a). United States v. Davis, 458 F.3d 505, 510 (6th Cir.

2006). When reviewing a sentencing decision, a district court’s findings of fact will only be set

aside if they are clearly erroneous. United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006). The

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No. 05-6808
US v. Hill

district court determined that the conflicting testimony regarding the robber’s shirt color was a detail

that was outweighed by the victim’s repeated identification of Hill as the robber. That finding was

not clearly erroneous.

       The judgment of the district court is affirmed.




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