                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 05a0294p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 04-6172
          v.
                                                    ,
                                                     >
 JOSHUA HOLLINGSWORTH,                              -
                            Defendant-Appellant. -
                                                   N
                     Appeal from the United States District Court
                   for the Western District of Tennessee at Jackson.
                 No. 04-10004—James D. Todd, Chief District Judge.
                                    Submitted: May 16, 2005
                               Decided and Filed: July 11, 2005
                     Before: CLAY, GILMAN, and COOK, Circuit Judges.
                                       _________________
                                           COUNSEL
ON BRIEF: M. Dianne Smothers, Stephen B. Shankman, OFFICE OF THE FEDERAL PUBLIC
DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. James W. Powell, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee,
for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        RONALD LEE GILMAN, Circuit Judge. In January of 2004, Joshua Hollingsworth was
indicted for being a felon in possession of a firearm. He later pled guilty and was sentenced to 77
months of incarceration. The sentence was at the low end of the Sentencing Guidelines range for
Hollingsworth’s offense level and criminal history.
         Hollingsworth raises two issues on appeal. He first alleges that his Sixth Amendment rights
were violated when the district court, rather than a jury, determined that at least one of his prior
convictions was for “a crime of violence.” Second, he argues that his sentence is unconstitutional
in light of the Supreme Court’s holding in United States v. Booker, 125 S. Ct. 738 (2005), that the
Sentencing Guidelines are no longer mandatory. For the reasons set forth below, we AFFIRM the
determination of the district court that at least one of Hollingsworth’s prior convictions was for a
crime of violence, but VACATE the judgment and REMAND for resentencing in accordance with
Booker.


                                                 1
No. 04-6172           United States v. Hollingsworth                                           Page 2


                                        I. BACKGROUND
A.     Factual background
        The facts of this case are not in dispute. In October of 2003, the Savannah Police
Department received a complaint about a man brandishing a gun. When they arrived at the scene,
the police officers found Hollingsworth sitting in a grey pickup truck. Hollingsworth, who reeked
of alcohol, became combative. The police subdued him with mace and placed him under arrest. A
search of the truck yielded a Ruger, Model P89, .9 mm pistol. Hollingsworth’s criminal record
revealed that he had been convicted of several felonies in the past, including aggravated assault and
aggravated burglary.
B.     Procedural background
        In January of 2004, a grand jury indicted Hollingsworth for being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g). He entered a guilty plea in June of 2004 and, three
months later, a sentencing hearing was conducted.
        At the hearing, Hollingsworth objected to the base offense level set by the Presentence
Report. Although he conceded that he was a convicted felon, he argued that the determination that
at least one of his convictions was for a “crime of violence” within the meaning of USSG
§ 2K2.1(a)(2) was improperly made by the sentencing court without his consent. This determination
resulted in an increase in his base offense level. The district court rejected Hollingsworth’s
argument, stating:
       The defendant’s objections to the base level is [sic] denied because Apprendi [v. New
       Jersey, 530 U.S. 466 (2000)] said any fact other than the fact of a prior conviction
       must be proven if it adversary [sic] affects the defendant’s sentence. It’s my ruling
       that the fact of the prior conviction includes the nature of that conviction and
       impliedly the date of the conviction.
Hollingsworth was then sentenced to 77 months of imprisonment and two years of supervised
release, to be served consecutively to a parole-revocation sentence in Hardin County, Tennessee and
concurrently with a separate two-year term of imprisonment in that county.


                                          II. ANALYSIS
A.     Standard of review
        We “review[] a district court’s interpretation of the Sentencing Guidelines de novo.” United
States v. Jackson, 401 F.3d 747, 748 (6th Cir. 2005); see also United States v. Copeland, 321 F.3d
582, 601 (6th Cir. 2003) (“This court reviews a constitutional challenge to a defendant's sentence de
novo wherever the defendant preserves the claim for appellate review.”)
B.     The fact of a previous conviction generally permits a determination of whether the
       conviction is for a crime of violence
        In Apprendi v. United States, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther
than the fact of a prior convicton, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” As this
circuit has repeatedly held, however, certain aspects of the character of prior convictions are so basic
as to be implicit in the fact of a prior conviction. See United States v. Burgin, 388 F.3d 177, 186 (6th
No. 04-6172           United States v. Hollingsworth                                             Page 3


Cir. 2004) (holding that “determinations by a district court that prior felony convictions exist and were
committed on different occasions, are so intimately related that the ‘different occasions’ requirement
of [18 U.S.C.] § 924(e) sufficiently comes within the exception in Apprendi for a prior conviction”).
The Burgin court reasoned that
        [t]he ‘different occasions’ language involves the issue of recidivism, ‘a traditional, if
        not the most traditional, basis for a sentencing court’s increasing an offender’s
        sentence.’ Apprendi, 530 U.S. at 488. Like the fact of a prior conviction, it is not a
        fact that pertains to the commission of the offense for which the defendant is presently
        charged. Thus, the ‘different occasions’ requirement of § 924(e) cannot be
        significantly distinguished from ‘the fact of a prior conviction.’
Id. (citation omitted).
        Similar reasoning applies to the district court’s determination that a specified offense is a
“crime of violence.” USSG § 2K2.1(a)(2). A pattern of violent crime is certainly “a traditional . . .
basis for a sentencing court’s increasing an offender’s sentence.” Burgin, 388 F.3d at 186. Likewise,
the violent nature of a previous offense “is not a fact that pertains to the commission of the offense
for which the defendant is presently charged,” but rather a fact that pertains to a previous offense. Id.

        Hollingsworth cites several cases, including the recent Supreme Court decision of Shepard v.
United States, 125 S. Ct. 1254 (2005), in support of his contention that the district court was not
permitted to find “the ultimate fact” that his prior conviction was for a crime of violence. The issue
in the cited cases, however, was not whether district courts could make findings about prior
convictions, but simply what sources they could rely on to make such findings. See Shepard, 125 S.
Ct. at 1257 (holding that “a later court determining the character of an admitted [prior felony] is
generally limited to examining the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant
assented”); Taylor v. United States, 495 U.S. 575, 602 (1990) (concluding, in the context of a prior
conviction for burglary, that the enhancement statute “generally requires the trial court to look only
to the fact of conviction and the statutory definition of the prior offense,” but “may permit the
sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was
actually required to find all the elements of generic burglary”); United States v. Arnold, 58 F.3d 1117,
1124 (6th Cir. 1995) (holding that “a district court determining whether a prior offense constitutes a
crime of violence is limited in its inquiry to an examination of the statutory elements of the
defendant’s prior offense,” but that “[i]f the statute does not clearly establish that the offense involves
the use, attempted use, or threatened use of physical force, the court may then look at the charge in
the indictment to which the defendant pled guilty . . . to determine if the offense involved a serious
potential risk of physical injury to others[, and] . . . the district court may also consider the plea
agreement relating to the prior offense”) (quotation marks omitted). None of these cases supports the
proposition that district courts are prohibited from finding that a prior conviction was for a crime of
violence.
        The determination that Hollingsworth’s prior convictions for multiple counts of aggravated
assault and aggravated robbery included at least one crime of violence was thus squarely within the
province of the sentencing judge. See Burgin, 388 F.3d at 186; Arnold, 58 F.3d at 1124. We therefore
hold that the district court did not err in its finding that Hollingsworth had been previously convicted
of a crime of violence.
No. 04-6172            United States v. Hollingsworth                                             Page 4


C.      Booker issue
        Hollingsworth’s second argument—that his sentence is unconstitutional in light of the Supreme
Court’s recent determination that the Sentencing Guidelines are no longer mandatory—is more
persuasive. See United States v. Booker, 125 S. Ct. 738, 769 (2005) (holding that the portion of the
Sentencing Act that requires judges to sentence defendants in accordance with the Sentencing
Guidelines is unconstitutional); United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (remanding
in order to resentence the defendant, after noting that the treatment of the Sentencing Guidelines as
mandatory “was correct at the time [of sentencing], but now, because [§] 3553(b)(1) has been excised
and severed under Booker, the district court erred by treating the Guidelines as mandatory when it
sentenced [the defendant]”).
         As this court noted in United States v. Oliver, 397 F.3d 369 (6th Cir. 2005), “even if we
conclude that the evidence [upon which the judge based his sentencing determination] is
‘overwhelming and essentially uncontroverted’ we cannot know the length of imprisonment that the
district court judge would have imposed pursuant to this evidence following Booker.” Id. at 380 n.3
(quoting United States v. Cotton, 535 U.S. 625, 633 (2002)). This is especially true where the court
sentences the defendant at the low end of the sentencing range, as the district court made a point of
doing in the present case. See United States v. Hamm, 400 F.3d 336, 340 (6th Cir. 2005) (“Based upon
the district court’s imposition of a sentence at the low end of the range[,] . . . we believe that the court
might have sentenced [the defendant] to fewer . . . months in prison if it had felt that it were free to
do so.”).


                                          III. CONCLUSION
        For all of the reasons set forth above, we AFFIRM the determination of the district court that
at least one of Hollingsworth’s prior convictions was for a crime of violence, but VACATE the
judgment and REMAND for resentencing in accordance with Booker.
