                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 04a0080n.06
                              Filed: November 10, 2004

                                                  No. 03-5646

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

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

Before: BATCHELDER and SUHRHEINRICH, Circuit Judges; and McKEAGUE,
District Judge.*


        PER CURIAM. Plaintiff, United States, appeals from the district court’s refusal to apply

the cross-reference provision of the United States Sentencing Guidelines (USSG) under § 2K2.1,

where defendant-appellee admitted to possessing a firearm in connection with a drug trafficking

offense. Defendant pled guilty to possession of a firearm with an obliterated serial number. At

sentencing, the government argued that defendant’s conviction should be cross-referenced under §

2K2.1. Relying on United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002) the district court concluded

that applying the cross-reference would raise a constitutional problem under the Sixth Amendment.

The district court sentenced defendant to 34 months in prison followed by three years of supervised

release.

        This Court reviews de novo the district court’s legal conclusions regarding application of


        *
          The Honorable David W. McKeague, United States District Judge for the Western District of Michigan, sitting
by designation.
the United States Sentencing Guidelines. United States v. Newell, 309 F.3d 396, 400 (6th Cir. 2002).



       The district court refused to apply the cross-reference provision of § 2K2.1(c), based on its

interpretation of and reliance on this Court’s opinion in Stubbs. However, it is now clear that Stubbs

is no longer good law. See Harris v. United States, 536 U.S. 545, 558-60 (2002)(holding that the

constitutional mandates of Apprendi, do not apply to the Guidelines when the defendant’s sentence

remains below the maximum sentence authorized by the statute); see also United States v. Helton,

349 F.3d 295, 300 (6th Cir. 2003)(holding that Stubbs and the decisions upon which Stubbs relied

did not survive Harris). Therefore, because the district court erred when it relied on Stubbs and

refused to apply the cross-reference provision of the Guidelines its judgment must be vacated and

the matter remanded for resentencing.

       We note that in this appeal defendant-appellee raised a challenge to the constitutionality of

his sentence citing Blakely v. Washington, 124 S. Ct. 2531 (2004), a case decided after the district

court judgment was entered. We find no merit to this claim. See United States v. Koch, 383 F.3d

436 (6th Cir. 2004)(en banc).

                                        IV. CONCLUSION

       The district court erred when it refused to apply the cross-reference provision of § 2K2.1.

Accordingly, the judgment of the district court is VACATED and this case is REMANDED for

further proceedings consistent with this opinion.




                                                  2
