                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0190n.06
                            Filed: March 21, 2006

                                            No. 03-4109

                             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 SOUTHERN
v.                                                        )        DISTRICT OF OHIO
                                                          )
MATTHEW MOYE,                                                                         OPINION

       Defendant-Appellant.



BEFORE:         COLE, GIBBONS, and ROGERS, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Defendant-Appellant, Matthew Moye, pleaded guilty

to possession with intent to distribute a controlled substance and possession of a firearm in relation

to a drug-trafficking offense. Moye was sentenced to 188 months on the controlled substance count

and 60 months on the drug trafficking count, to be served consecutively. The only issue on appeal

is whether this Court should remand for resentencing pursuant to United States v. Booker, 543 U.S.

220 (2005). For the reasons that follow, we VACATE Moye’s sentence and REMAND for

resentencing.

                                                  I.

       On September 18, 2002, Moye was indicted on three counts: 1) being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“count 1”); 2) possession with

intent to distribute cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii)
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United States v. Moye

(“count 2”); and 3) carrying a firearm during a drug-trafficking offense in violation of 18 U.S.C. §

924 (c)(1) (“count 3”). Pursuant to a negotiated plea agreement, on April 25, 2003, the government

dismissed count 1 and Moye pleaded guilty to counts 2 and 3. Moye does not challenge his

underlying convictions.

       On August 14, 2003, the district court held a sentencing hearing. At that hearing, the court,

operating under the then-controlling law that assumed the United States Sentencing Guidelines were

mandatory, sentenced Moye to 188 months on count 2 and 60 months on count 3, to be served

consecutively.

       While the plea agreement indicated that Moye understood that the Sentencing Guidelines

controlled his sentence, Moye did not waive his right to appeal the sentence. In fact, the district

court specifically informed Moye of his right to appeal the sentence.

                                                II.

       Moye was sentenced prior to the issuance of the Supreme Court’s decision in Booker.1

While Moye’s appeal was pending, the Supreme Court decided Booker, which held that the

Sentencing Guidelines (“Guidelines”) were henceforth advisory, rather than mandatory. Booker,

543 U.S. at 263–64. The Court further held that, under a mandatory sentencing scheme, the Sixth

Amendment prohibits judge-found facts from being used to enhance a sentence. Id. at 244. Finally,

the Court held that Booker’s holding applied to all cases pending on direct appeal. Id. at 267–68.




       1
          In fact, Moye was sentenced before Blakely v. Washington, 542 U.S. 296 (2004), which
initially cast doubt on the constitutionality of the mandatory nature of the federal sentencing
guidelines while examining Washington’s sentencing scheme.

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Moye challenges his sentence under both Booker holdings: 1) that it was plain error for the district

court to sentence him under the assumption that the Sentencing Guidelines were mandatory; and 2)

that his sentence was enhanced in violation of the Sixth Amendment because the judge, not a jury,

found that he was a career criminal.

                                                 III.

       Booker did not hold that all cases in which a party is appealing a sentence must be remanded.

Rather, the Supreme Court advised circuit courts to “apply ordinary prudential doctrines,

determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’

test.” Id. at 268. Because Moye did not object to the use of the Sentencing Guidelines, we review

his sentence fo plain error. United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). In this

circuit, there is plain error if the “sentencing court failed to treat the Sentencing Guidelines as

advisory.” Id. at 527. This Court presumes prejudice “given the distinct possibility that the district

court would have imposed a lower sentence under the new post-Booker framework . . . .” Id. at 529.

This is especially true because it is “exceedingly difficult for a defendant . . . to show that his

sentence would have been different if the district court had sentenced him under the advisory, rather

than the mandatory, Guidelines framework.” Id. at 528. See also United States v. Savoires, 430

F.3d 376, 382 (6th Cir. 2005) (under Booker, resentencing warranted when district court sentences

under a mandatory scheme); United States v. Owens, 426 F.3d 800, 809 (6th Cir. 2005) (“[T]he

United States Sentencing Guidelines are no longer mandatory, but advisory. The district court

therefore erred in sentencing . . . under a mandatory scheme.”); United States v. Navarro-Diaz, 420




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United States v. Moye

F.3d 581, 589 (6th Cir. 2005) (remand for resentencing proper when district court sentenced under

a mandatory scheme).

        The district judge believed the Guidelines were mandatory when sentencing Moye.2 First,

the court indicated that the Sentencing Guidelines controlled the calculation of the sentence when

it stated during Moye’s sentencing hearing that “he is a career offender for sentencing purposes, and

that status controls the calculation of the offense level and the criminal history category in this case”

and that “[h]is situation does not deviate from the standard situation considered by the Sentencing

Commission when the guidelines were formulated.” Second, the court indicated that, but for the

presentence report which recommended a minimum guideline sentence, it “seriously considered

giving [Moye] the maximum sentence, the 235 months, because [Moye] [is] a career offender . . .”

This was the Guidelines maximum, however, as the statutory maximum was 40 years (480 months).

        Further, when a district court sentences a defendant at the bottom of the Guideline range,

resentencing is warranted. See United States v. Trammel, 404 F.3d 397, 402–03 (6th Cir. 2005)

(under a plain-error analysis, sentence at bottom of Guidelines range is sufficient to entitle defendant

to resentencing). In the instant case, the Guidelines range was from 188 to 235 months for count

2 and a mandatory sentence of 60 months for count 3. The district court sentenced Moye to the

minimum under the Guidelines. Therefore, Moye’s sentence should be vacated and his case

remanded for resentencing.




        2
         When the court sentenced Moye, the Guidelines, including their mandatory nature, had
been affirmatively declared by the Supreme Court to be constitutional. Mistretta v. United States,
488 U.S. 361, 412 (1989).

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                                                 IV.

       The government’s sole argument on appeal is that, because Moye agreed to be sentenced

under the Guidelines, he should be bound by that bargain. The government characterizes Moye’s

argument as seeking to have his plea declared not to have been knowing and voluntary.

       In support of its argument, the government relies on the holding in United States v. Bradley,

400 F.3d 459 (6th Cir. 2005), that, when a pre-Booker defendant agrees to be sentenced under the

Guidelines and waives his right to appeal, that the defendant does not have a tenable appeal based

on Booker considerations. Id. at 465. The holding in Bradley was based on the rationale that a

defendant can waive his constitutional rights if he so chooses. Id.

         Moye never waived his right to appeal the sentence. Moye only “underst[oo]d that his

sentence [would] be imposed pursuant to the Sentencing Reform Act, and the Sentencing Act

Guidelines.” After Moye was sentenced during a sentencing hearing in which the court explicitly

told Moye of his right to appeal the sentence, Moye immediately appealed. During the pendency

of his appeal, the Supreme Court issued its Booker opinion. While Moye understood that the

Guidelines would control his sentence, he did not waive legal arguments related to his sentence,

including the argument that his sentence violated the Constitution, or the right to appeal his

sentence. Therefore, the government’s argument against remand fails. See United States v. Alford,

--- F.3d ---, 2006 WL 305526, *2 (6th Cir. 2006) (rejecting government’s rationale regarding

Bradley in a similar case, this Court held that “[t]he absence of such a waiver [of appear] is

dispositive” and remand for resentencing is proper (citations omitted)); United States v. Puckett, 422

F.3d 340, 343 (6th Cir. 2005) (“The mere fact that [the defendant] agreed to be, and was, sentenced

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United States v. Moye

pursuant to the Sentencing Guidelines, does not preclude him from raising on appeal an alleged

Booker error regarding his sentence.” (citation omitted)); United States v. Amiker, 414 F.3d 606,

607–08 (6th Cir. 2005) (agreement “to be sentenced pursuant to the Sentencing Guidelines,” absent

an appeal waiver, does not “preclude [a defendant] from raising the Booker error on appeal.”).

                                               V.

       For the foregoing reasons, we hereby VACATE Moye’s sentence and REMAND for

resentencing. Because we reach this holding, we need not address Moye’s Sixth Amendment

argument.




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