                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 05a0102p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                      X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 03-6016
           v.
                                                       ,
                                                        >
 CLIMMIE JONES, JR.,                                   -
                              Defendant-Appellant. -
                                                      N
                       Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                     No. 96-00017—Todd J. Campbell, District Judge.
                                   Argued: November 2, 2004
                               Decided and Filed: March 3, 2005
                    Before: MOORE, COLE, and ROGERS, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: David L. Cooper, LAW OFFICE OF DAVID L. COOPER, Nashville, Tennessee, for
Appellant. Paul M. O’Brien, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,
for Appellee. ON BRIEF: David L. Cooper, LAW OFFICE OF DAVID L. COOPER, Nashville,
Tennessee, for Appellant. Paul M. O’Brien, ASSISTANT UNITED STATES ATTORNEY,
Nashville, Tennessee, for Appellee.
                                      _________________
                                          OPINION
                                      _________________
         R. GUY COLE, JR., Circuit Judge. This is Defendant-Appellant Climmie Jones, Jr.’s second
direct appeal from various drug and weapons convictions. Through counsel, Jones contends that the
district court erred by: (1) denying a motion to dismiss the indictment because of race-based
selective prosecution; (2) denying a motion for a new trial based on newly discovered evidence or
failure to disclose exculpatory evidence; and (3) making various sentencing errors, including
refusing to order a new sentencing hearing under Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004). Acting pro se, Jones also presents
numerous additional arguments. After the completion of briefing and oral argument, the Supreme
Court issued United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005). For the following reasons,
we AFFIRM the district court in most respects, but VACATE and REMAND for resentencing
consistent with this opinion and Booker.



                                                1
No. 03-6016                United States v. Jones                                                                Page 2


                                                I. BACKGROUND
       In 1996, a jury trial was held in which Jones was convicted of: conspiracy to distribute
cocaine and cocaine base; distribution and possession of cocaine and cocaine base; distribution and
possession of cocaine and cocaine base within 1000 feet of a school; possession of a sawed-off
shotgun; and being a felon in possession of a firearm. The district court initially sentenced Jones
to 262 months’ imprisonment, ten years of supervised release, and a $1050 special assessment.
Jones appealed on numerous grounds, including race-based selective prosecution and improper
enhancement for obstruction of justice under U.S.S.G. § 3C1.1.
        At the first appeal, we reversed the Jones’s conviction and sentence. United States v. Jones,
159 F.3d 969, 977-78, 983 (6th Cir. 1998). As to race-based selective prosecution, we first noted
that Jones must show that the “federal prosecutorial policy had both a discriminatory effect and a
discriminatory intent.” Id. at 976. In our opinion we noted that local law enforcement officers Terry
Spence and Kerry Nelson wore t-shirts during Jones’s arrest depicting Jones and his wife, Marion
Jones, saying “See ya, wouldn’t want to be ya.” We further noted that, during trial, Spence sent a1
postcard to Jones, a black man, depicting a black woman with a basket of bananas on her head.
Given this conduct, this Court held that:
        Jones has established a prima facie case of discriminatory intent. The conduct of
        [local law enforcement] Officers Spence and Nelson was not only outrageous and
        unprofessional, but also racially motivated. Although there were three individuals
        involved in this case . . . only Jones and his wife were African-American. The
        officers made t-shirts of only those two . . . .
        Additionally, Spence’s mailing of the postcard evidences racial animus. Even if we
        were to discount the obvious impropriety of mailing a postcard, any postcard, to a
        criminal defendant awaiting trial, we could not so easily disregard the nature of the
        postcard mailed to Jones. The officer sent to an African-American man a postcard
        of an African-American woman with bananas on her head, and did not choose any
        other available postcards such as the sunset or the beach.
Id. at 977.
       Jones then argued that there was discriminatory effect since he was selected for federal
prosecution, as opposed to state prosecution, due to his race. We held that Jones had:
        [S]et forth ‘some evidence’ tending to show the existence of discriminatory effect
        that warrants discovery . . . . Thus, the district court abused its discretion in denying
        Jones’s request for discovery. We therefore remand the case to the district court to
        compel discovery on Jones’s selective prosecution claim. If Jones is able to obtain
        evidence that establishes a prima facie case of discriminatory effect, Jones may
        renew his motion to dismiss the indictment.
Id. at 978 (internal citation omitted).



        1
            The text of Spence’s postcard to Jones is as follows:
        Climmie “Slow Motion.” What’s up! Haven’t talked to you since you were in court and lost all your
        motions. Sorry, but life goes on. Just wanted to drop you a line and let you know that Cozumel,
        Mexico is beautiful. I’m on vacation but I’ll be back Monday for trial and chances are good your (sic)
        going to jail for a long time. See Ya. Officer Spence.
No. 03-6016           United States v. Jones                                                     Page 3


         During sentencing and under oath, Jones also testified that the officers’ t-shirts “contained
a racial slur that was written . . . with magic marker.” Id. at 981. The district court determined that
no slurs appeared, and that Jones had perjured himself. Accordingly the district court imposed a
two-level sentence enhancement for obstruction of justice. On appeal, we held:
        [W]e do not believe that the perjured testimony regarding Jones’s selective
        prosecution claim was relevant to Jones’s sentencing . . . . Based on the record, it
        appears that the district court was simply giving Jones the opportunity to speak fully
        and freely before his sentencing . . . . Because Jones’s testimony was not material
        to his sentencing, we find that the district court erred in enhancing Jones’s sentence
        for obstruction of justice. We therefore remand this case to the district court for
        resentencing.
Id. at 981.
       After remand, the district court allowed Jones and the government to engage in voluminous
discovery regarding local law enforcement practices, and particularly those of the vice unit, in
Rutherford County and the City of Murfreesboro. Based on our remand order and the parties’
discovery, the City subsequently conducted internal investigations of misconduct in the
Murfreesboro Police Department, including, but not limited to, the use of racially offensive language
and practices, and improper use or theft of City property and police evidence.
        After the close of discovery, Jones renewed his motion to dismiss the indictment on the
grounds of selective prosecution, arguing that due to his race, state law enforcement had
recommended him for prosecution in federal court, where there are higher penalties for crack
cocaine. Jones also moved for a new trial, arguing that the government failed to disclose newly
discovered exculpatory evidence impeaching the credibility of testifying officers, under Brady v.
Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Jones then moved
for a new sentencing hearing in light of Apprendi, since the district court had sentenced him based
on a judicial finding of possession of 18.3 grams of crack cocaine, as opposed to the 2.7 grams
referenced in the indictment. Jones also moved for a downward departure of his sentence based on
the outrageous conduct of law enforcement and evidence of racial animus.
         The district court, in a series of orders, denied Jones’s motions. With respect to Jones’s
claims of race-based selective prosecution, the district court found that Jones could not show
discriminatory effect because no other Caucasian criminal defendants who had not been
recommended for federal prosecution were similarly situated to Jones. On the Brady and Giglio
arguments, the district court held that most of the documents sought by Jones were created after trial;
accordingly, they could not have been improperly suppressed under Brady. As to the Apprendi
arguments, the district court held that since Jones’s 262-month-sentence was under the statutory
maximum of 30 years, there was no Sixth Amendment violation. Regarding the downward
departure for outrageous conduct, the district court noted that it had discretion to depart downward
for outrageous conduct, but elected not to. The district court further noted that given Jones’s
propensity for violence, and the overwhelming evidence of significant drug trafficking, any adverse
actions against local law enforcement should be instituted as a personnel action. Accordingly, the
district court limited the resentencing to recalculating Jones’s sentence without the obstruction of
justice enhancement reversed by this Court.
        The district court then sentenced Jones to 210 months in prison, six years of supervised
release, substance abuse treatment, and a $1050 special assessment.
No. 03-6016           United States v. Jones                                                      Page 4


       Jones timely appealed. After the close of briefing and completion of oral argument, the
Supreme Court issued United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), which
substantially changed jurisprudence under the Sentencing Guidelines.
                                           II. ANALYSIS
A.      Selective Prosecution
        Jones first argues that the district court erred by denying his motion to dismiss the indictment
for race-based selective prosecution.
        A district court’s failure to dismiss an indictment is generally reviewed for an abuse of
discretion. United States v. Overmyer, 899 F.2d 457, 465 (6th Cir. 1990). However, because the
determination of the merits of a selective prosecution claim is essentially a factual inquiry, we will
review the district court’s determination for clear error. See Jones, 159 F.3d at 976.
       This Court has previously noted the following two-part test in determining selective
prosecution:
        To prevail on a selective prosecution claim, a defendant must show that the federal
        prosecutorial policy had both a discriminatory effect and a discriminatory intent. To
        establish discriminatory intent in a case alleging selective prosecution based on race,
        a claimant must show that the prosecutorial policy was motivated by racial animus;
        to establish discriminatory effect, the claimant must demonstrate that similarly
        situated individuals of a different race were not similarly prosecuted.
Id. at 976-77 (internal citations omitted).
        Jones cites numerous instances of the use of racially offensive language and practices by the
Murfreesboro Police Department vice unit, in an effort to show racial animus and discriminatory
effect. These included, among other things, using the word “nigger” in the presence of African-
American arrestees, during investigations and in the work place; allegations that a female police
officer was harassed for dating an African-American man; and referring to a Korean-American
officer as a “gook,” including circulating an offensive cartoon referring to the officer as “Gook
Sergeant.” Jones further noted that sixty-five non-African-American criminal defendants charged
with crack cocaine violations were not recommended for federal prosecution. The government did
not contest these findings. Accordingly, Jones argued that both discriminatory intent and effect had
been shown.
       The district court disagreed. As for discriminatory intent, the district court concluded that
“the appeals court has already determined that discriminatory intent has been established.”
      With respect to discriminatory effect, the district court first noted that Jones must
demonstrate that “law enforcement officials involved in this case failed to refer similarly situated
non-African-Americans for federal prosecution.” The district court then noted:
        [The] relevant factors for comparison of this case to others are the Defendant’s
        propensity for violence, as shown by his criminal history (his previous threat to law
        enforcement personnel), and the involvement of firearms in the crime (a fully-loaded
        semiautomatic assault rifle and a sawed-off shotgun [were] found in Defendant’s
        home during a search after his arrest), as well as the amount of cocaine base involved
        (the Defendant was held accountable for over 18 grams of cocaine during the
        conspiracy, and had over 10 grams of cocaine base on his person when arrested).
No. 03-6016           United States v. Jones                                                   Page 5


The district court observed that of the sixty-five non-African-American crack cocaine defendants
not recommended for federal prosecution, only two had guns, and neither appeared to have a
propensity for violence similar to Jones’s. Accordingly, the district court held that none of the non-
African-American defendants were similar to Jones, and held that discriminatory effect had not been
found.
       On appeal, Jones again repeats his claims, arguing that given the atmosphere of racially
offensive conduct by the Murfreesboro Police Department, his prosecution was selective. Citing
Yick Wo v. Hopkins, 118 U.S. 356 (1886), Jones further notes “sheer numbers alone can show
disparate treatment between races.”
        Jones’s argument is unpersuasive. Concerning the issue of discriminatory intent, neither
Jones nor the government argues that the district court erred. Indeed, more than ample evidence
supports a finding of discriminatory intent, including that officers: (1) engaged in widespread
racially offensive conduct throughout the Murfreesboro Police Department vice unit, both in the
treatment of arrestees and in the work place; (2) wore t-shirts emblazoned with Jones’s likeness
during his arrest; and (3) sent a taunting postcard depicting a black woman with bananas to Jones
during trial.
        As for discriminatory effect, however, Jones must show that similarly situated non-African-
American defendants were not recommended for federal prosecution based on their race. As an
initial matter, the district court properly identified the appropriate factors for comparison –
propensity for violence, involvement of a firearm, and amount of cocaine base. See United States
v. Daniels, 142 F. Supp. 2d 140, 144 (D. Mass. 2001) (“Such evidence [of similarity] would include
comparison, for example, of the amounts of crack involved in cases with white defendants, their
criminal histories, propensity for violence, and any other factors that must justify the higher
sentences if they were prosecuted in federal court.”). Here, at best, evidence establishes that only
two of the sixty-five non-African-American crack cocaine defendants had firearms, and neither of
those defendants had a propensity for violence similar to Jones, at least as shown by their criminal
history. Also, other evidence indicates that as a general matter, local law enforcement in Rutherford
County recommended thirteen Caucasian criminal defendants for federal prosecution, six of whom
were charged with drugs and firearms violations.
        Nor does Yick Wo, upon which Jones relies, support a finding of discriminatory effect. There
the Supreme Court noted discrimination was shown where the City and County of San Francisco
refused to give laundry operation permits to 200 “Chinese subjects,” while 80 non-Chinese were
issued such permits. See Yick Wo, 118 U.S. at 374. By contrast, evidence in this case supports that
both African-American and Caucasian criminal defendants were referred for federal prosecution
when charged with drugs and firearms violations.
        Jones further argues that the evidence of racial animus supports a showing of discriminatory
effect. To be sure, a statement evincing racial animus, if related to the decision to refer for federal
prosecution, could be a factor in establishing that the defendant was treated differently on the basis
of his race. In this case, however, the evidence only shows that, at best, Spence and others at the
Murfreesboro Police Department vice unit routinely made racially offensive comments to arrestees
including Jones, and other co-workers. No evidence links such race-based comments to the decision
to refer Jones for federal prosecution.
       It bears repeating here that the conduct of Spence, Nelson, and others in this case has been
repeatedly criticized by the district court, the Assistant U.S. Attorney prosecuting the case, the
Murfreesboro City Manager, the Murfreesboro Commissioner of Police, members of the Tennessee
print media, and this Court. See, e.g., Jones, 159 F.3d at 976 (quoting the district court’s extreme
displeasure upon discovering that members of the Murfreesboro Police Department had sent a
No. 03-6016                United States v. Jones                                                                Page 6


racially charged postcard to Jones after an admonishment by the district court regarding the wearing
of offensive t-shirts). Our decision today does not condone the conduct of the aforementioned
officers; it merely determines that the district court committed no clear error in finding that Jones
did not establish race-based selective prosecution.
B.      Brady Violations and Newly Discovered Evidence
       Jones next argues that evidence regarding misconduct by members of the Murfreesboro
Police Department vice unit was not properly disclosed at trial, resulting in a violation of Brady v.
Maryland, 373 U.S. 83 (1963), or alternatively, was newly discovered necessitating a new trial. We
review the denial of a motion for new trial based on Brady violations or newly discovered evidence
under an abuse of discretion standard. See United States v. Ross, 245 F.3d 577, 584 (6th Cir. 2001);
United States v. O’Dell, 805 F.2d 637, 640 (6th Cir. 1986).
        After remand from this Court and during the second discovery phase in the trial court, the
City conducted internal investigations regarding misconduct within the Murfreesboro Police
Department vice unit. These investigations determined that the then-head of the vice unit, Officer
Mickey McCullough, as well as Spence, had engaged in widespread misconduct that was not racially
motivated. With regard to McCullough, such conduct included, among other things: drinking while
on duty; use of seized drug funds for personal use; use of seized property for personal use; giving
false statements in an internal investigation; and threatening to destroy departmental documents
sought in a civil suit against the City. As to Spence, such misconduct included, among other things:
inappropriate handling of seized money and drug evidence; inappropriate use of City property for
personal use; lying to a judge; cheating on an employment test; and failure to report numerous
professional violations by fellow officers, including the planting of drugs on the property of a
criminal suspect, and the operation of police vehicles while intoxicated. The government does not
dispute these findings.
       When presented with this evidence, the district court refused to grant a motion for a new trial
under Brady. The district court noted that the vast majority of evidence of non-racially motivated
misconduct was discovered after trial. Of the evidence that existed at the time of trial, those
documents related only to McCullough, who was2 not a main witness during trial. Given that the
evidence of Jones’s guilt was overwhelming, the district court held that a new trial was
inappropriate.
        A review of the case law and record clearly indicate the district court did not abuse its
discretion regarding Brady. Under Brady and Giglio the prosecution is required to disclose
exculpatory evidence, including evidence that may impeach the credibility of a witness. See Giglio,
405 U.S. at 153-54 (extending Brady to nondisclosure of evidence regarding the credibility of
material witnesses). However, Brady only requires “that the government turn over evidence in its
possession to the defense that is both favorable to the accused and material to guilt or punishment.”
Hicks v. Collins, 384 F.3d 204, 220 (6th Cir. 2004); see also United States v. Bhutani, 175 F.3d 572,
577 (7th Cir. 1999) (noting that Brady material must be: “(1) in the possession of the prosecution;
(2) material; and (3) exculpatory”). Here, the district court correctly concluded that the vast
majority of the evidence of departmental misconduct was discovered by the City after this case was

        2
            This Court previously noted that the evidence against Jones included:
        [N]umerous tape recordings of controlled drug transactions in which Jones sold drugs to a confidential
        informant; drugs were found on Jones when he was arrested; the search of Jones’s house revealed the
        presence of drugs and firearms; and there was testimony regarding Jones’s “cooking” of cocaine into
        cocaine base.
Jones, 159 F.3d at 979.
No. 03-6016               United States v. Jones                                                                  Page 7


remanded to the district court for discovery relating to selective prosecution. As such evidence did
not exist at the time of trial, it was not Brady material.
        Of those documents that did exist at the time of trial, Brady requires exculpatory evidence
to be “material,” such that there is a “reasonable probability that, had the evidence been disclosed
to the defense,” the outcome would have been different and “reasonable probability” means a
probability “sufficient to undermine confidence in the outcome.” Zuern v. Tate, 336 F.3d 478, 484
(6th Cir. 2003). Here, evidence impeaching the credibility of McCullough clearly fails this standard.
As noted previously, the evidence against Jones at trial was overwhelming. See Jones, 159 F.3d
at 974, 979 (“We agree with the district court that there was overwhelming evidence that Jones was
guilty of the drug offenses.”). Given the overwhelming evidence of guilt, a new trial under Brady
was inappropriate.
       Though framing the argument under Brady, Jones also argues that newly discovered
evidence of misconduct supports a new trial. The district court did not address these arguments,
evidently assuming that since almost all of the evidence was not Brady material, a new trial was
inappropriate.
        The district court, however, could have framed Jones’s argument as one for a new trial under
FED. R. CRIM. P. 33. Under Rule 33, this Court has held the following elements must be established:
         (1) the new evidence was discovered after the trial; (2) the evidence could not have
         been discovered earlier with due diligence; (3) the evidence is material and not
         merely cumulative or impeaching; and (4) the evidence would likely produce an
         acquittal.
O’Dell, 805 F.2d at 640. However, even under this standard, Jones’s argument cannot prevail.
Given the overwhelming evidence of Jones’s guilt, any evidence impugning the credibility of
various members of the Murfreesboro Police Department would not likely produce an acquittal.
Accordingly, we affirm the district court’s denial of a motion for a new trial.
C.       Apprendi, Blakely, and Booker
        In Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. __,
124 S.Ct. 2531 (2004), the Supreme Court held that the Sixth Amendment is violated where, under
a mandatory sentencing scheme, judicial fact-finding, as opposed to facts found by a jury, increases
the sentence beyond the statutory maximum sentence which may be imposed “solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2537
(emphasis removed). On appeal, Jones notes the district court based his sentence on judicial fact-3
finding that Jones possessed 18.3 grams of crack cocaine, resulting in a base offense level of 26.
U.S.S.G. § 2D1.1(c)(7) (establishing base offense level of 26 for cocaine base in the amount of 5g
to 20 g). However, Jones notes that most of the charges in the indictment did not allege an amount
of cocaine base, and of those charges that did include an amount, only 2.7 grams were alleged, an
amount that would indicate a base offense level of 20. U.S.S.G. § 2D1.1(c)(10) (establishing base

         3
           Acting pro se, Jones also makes additional Sixth Amendment claims, arguing the jury made no factual findings
regarding his various sentence enhancements. These include: an enhancement for the amount of cocaine base in his
possession; the stolen gun enhancement; the leadership enhancement; the protected area enhancement; and the relevant
conduct enhancement, including a finding of possession of marijuana and powdered cocaine. As an initial matter, Jones
is incorrect regarding a lack of jury findings as to some of these enhancements. The record establishes that the jury made
specific findings regarding the firearms charge and intent to distribute crack cocaine within 1000 feet of a school. To
the extent that his arguments challenge the factual findings made by the district judge such as the amount of cocaine base,
the possession and amount of other drugs, or the leadership enhancement, this argument is substantially similar to the
Apprendi argument made by counsel. Accordingly, those arguments will not be separately analyzed.
No. 03-6016           United States v. Jones                                                   Page 8


offense level of 20 for possession of at least 2g but less than 3g of cocaine base). Since the jury
made no other findings regarding the amount of drugs possessed, Jones argues that this judicial fact-
finding, resulting in an enhanced sentence, violates the Sixth Amendment.
        United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005) resolves this argument in Jones’s
favor. In Booker, the United States Supreme Court extended the Sixth Amendment principle in
Apprendi to the Sentencing Guidelines. Booker, 125 S.Ct. at 756 (Stevens, J., for the Court) (“Any
fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”). Since “failure to apply a newly declared
constitutional rule to criminal cases pending on direct review violates basic norms of constitutional
adjudication,” Griffith v. Kentucky, 479 U.S. 314, 322 (1987), the remedial majority indicated that
Booker should be extended to all cases pending on direct review. See Booker, 125 S.Ct. at 769
(Breyer, J., for the Court). The remedial majority also noted that courts should apply “ordinary
prudential doctrines” including the “plain-error test” on appellate review for issues not raised below.
Id.
        However, plain error is not applicable here. Since Jones raised the Sixth Amendment issue
during sentencing in the district court, we review that decision de novo. United States v. Darwich,
337 F.3d 645, 656 (6th Cir. 2003) (holding that Apprendi claims raised in the district court are
reviewed de novo). In this case, Jones’s Sixth Amendment right was violated. The district court’s
factual finding as to the amount of drugs, resulting in an enhancement of Jones’s sentence under the
Guidelines, is the textbook example of a Sixth Amendment violation under Booker. See Booker, 125
S.Ct. at 746, 769 (affirming the reversal of respondent Booker’s sentence, since the district court
engaged in judicial fact-finding as to the amount of drugs, resulting in an enhanced sentence under
the Guidelines in violation of the Sixth Amendment). Furthermore, in supplemental briefing filed
shortly after the issuance of Booker, both Jones and the government agree that this case should be
remanded for resentencing. Accordingly, we vacate the sentence and remand for resentencing in
light of Booker.
D.     Other Sentencing Errors
       Finally, Jones claims that the district court erred in calculating his sentence or applying the
Sentencing Guidelines. Since Booker requires a district court to “consult the Guidelines and take
them into account when sentencing,” id. at 767 (Breyer. J, for the Court), we comment briefly on
Jones’s claims as a matter of Guideline interpretation. United States v. Oliver, — F.3d —, 2005 WL
233779, at *8-*9 (6th Cir. 2005).
        Acting through counsel, Jones argues that the district court erred by failing to depart
downward outside of the Sentencing Guidelines given the “outrageous conduct” of the Murfreesboro
Police Department, including the alleged race-based selective prosecution. Jones notes that this
Court previously concluded that the officers’ conduct was “outrageous,” Jones, 159 F.3d at 977, and
that the district court failed to consider this properly on a motion for downward departure.
        Prior to Booker, we could not disturb a district court’s denial of a downward departure for
“exceptional circumstances” unless the district court was unaware it had discretion to make such a
departure. United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002). Here, the district court
clearly noted that it had such discretion, but refused to depart downward.
        Booker however, makes clear that the Sentencing Guidelines are now advisory, giving the
sentencing judge substantially more discretion to sentence above and below the Guideline range.
Booker, 125 S.Ct. at 767 (Breyer, J., for the Court). Furthermore, the district court’s sentence, and
its exercise of discretion (if any), must be reviewed by an appellate court for “reasonableness.” Id.
at 766. (Breyer, J., for the Court). Accordingly, on remand, we encourage the sentencing judge to
No. 03-6016           United States v. Jones                                                     Page 9


explicitly state his reasons for applying particular Guidelines, and sentencing within the
recommended Guidelines range, or in the alternative, for choosing to sentence outside that range.
Such a statement will facilitate appellate review as to whether the sentence was “reasonable.”
However, we take no position as to the content or extent of such a statement.
       Acting pro se, Jones also filed briefs making numerous additional sentencing arguments.
Many, but not all of these arguments were previously raised and disposed of by the district court.
As these arguments have already been analyzed or are without merit, we will only summarily
address them here.
        Jones first argues that evidence of his prior felony conviction should have been presented
to the jury. However, the Supreme Court has previously noted that the fact of a prior felony
conviction need not be subject to a determination by the jury. See Apprendi, 530 U.S. at 490.
       Jones next argues that the district court incorrectly calculated the adjusted offense level by
adding certain enhancements to the base offense level for cocaine base. However, a review of the
Pre-Sentencing Investigation Report indicates that this argument is without merit.
         Jones additionally argues that the district court failed to afford an opportunity for allocution
pursuant to the former FED. R. CRIM. P. 32(c)(3)(C), and now as amended, found at FED. R. CRIM.
P. 32(i)(4)(A)(ii). However, during his second sentencing, Jones was afforded the opportunity for
allocution. Indeed, Jones expressed his deep remorse for the crimes he committed, his successful
effort to remain drug free, and his request to be sentenced at the low end of the range. Accordingly,
this claim is without merit.
        Finally, Jones argues that the inclusion of a simple assault charge in his Pre-Sentencing
Investigation Report investigation report was error since certain information regarding the crime was
inaccurate. However, Jones himself notes that he pleaded guilty to this crime at trial.
                                        III. CONCLUSION
       For the foregoing reasons, the judgment of the district court is AFFIRMED in most respects,
but we VACATE and REMAND for resentencing consistent with this opinion and United States
v. Booker, supra.
