                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0518n.06
                                Filed: June 17, 2005

                                                   No. 04-1685

                               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 MICHIGAN

QUINCY ARMAND WRIGHT,                                                                    OPINION

         Defendant-Appellant.




BEFORE:         NORRIS and DAUGHTREY, Circuit Judges; JORDAN, District Judge.*

         PER CURIAM. Defendant Quincy Armand Wright appeals from the sentence that he

received after entering a guilty plea to a single count of drug trafficking, 21 U.S.C. § 841(a)(1).

Specifically, he contends that the district court erred when it enhanced his Guidelines offense level

based upon factual determinations that were neither admitted by defendant nor found by a jury

beyond a reasonable doubt. In light of United States v. Booker, 125 S.Ct. 738 (2005), and the cases

of this circuit applying it, see, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir. 2005); United

States v. Oliver, 397 F.3d 369 (6th Cir. 2005), we vacate the judgment and remand the matter to

the district court for re-sentencing.

                                                         I.


         *
          The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 04-1685
United States v. Wright

       On September 4, 2002, a grand jury returned a one-count indictment charging defendant

with trafficking in more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Trial

was scheduled for Monday, November 18, 2002. Defendant failed to appear. According to his

attorney, he had fallen off a ladder while at work the preceding weekend and had been prescribed

pain medication. The district court rescheduled the trial for Wednesday. When defendant failed

to appear for a second time, the district court issued a bench warrant for his arrest. He was taken

into custody on unrelated drug charges in Illinois on June 6, 2003, and returned to the Western

District of Michigan in December.

       Represented by new counsel, defendant entered a guilty plea on February 6, 2004 without

the benefit of a written plea agreement. In the course of the change of plea hearing, the following

exchange occurred:

       THE COURT:             How much [crack cocaine] did you have with you?

       DEFENDANT:             Over 50 grams.

       THE COURT:             Have you ever seen any report or has anyone ever told you
                              exactly how much you had?

       DEFENDANT:             Yes, Sir.

       THE COURT:             How much did they tell you you had or did you believe you had?

       DEFENDANT:             151 grams.

       THE COURT:             That’s what you believe you had?

       DEFENDANT:             I’m not sure. That’s what I was told.




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United States v. Wright

After this colloquy, the AUSA interjected that “for the record . . . the crack that Mr. Wright had

on August 28, 2002, has been analyzed by the laboratory and determined to be 151.5 grams of

cocaine base, also known as crack.”

       The final pre-sentence investigation report (“PSR”) noted that the laboratory test results

determined the weight of the crack cocaine to be 151.16 grams, which resulted in a base offense

level of 34. U.S.S.G. § 2D1.1(c)(3) (Nov. 2003) (level 34 if at least 150 grams but less than 500

grams of cocaine base). Had the amount of cocaine base charged in the indictment been attributed

to defendant, his base offense level would have been only 32. U.S.S.G. § 2D1.1(c)(4) (for at least

50 but less than 150 grams of cocaine base). Defendant objected to this calculation, arguing that

the weight calculated by police laboratory may have included a “knotted sandwich type bag” that

contained the crack, thereby potentially pushing the weight above the critical 150 gram level.

       The PSR also recommended that the base offense level be increased for possession of a

firearm, U.S.S.G. § 2D1.1(b)(1), and for obstruction of justice, U.S.S.G. § 3C1.1, resulting in an

adjusted base offense level of 38. However, the PSR went on to suggest that defendant receive

the benefit of a two-level decrease for acceptance of responsibility, U.S.S.G. § 3E1.1(a), because

he had entered a guilty plea without the benefit of a written agreement and had been “candid and

forthright” during the pre-sentence investigation. Thus, the total recommended offense level was

36. When coupled with a criminal history category of IV, defendant’s sentencing range was

between 262 and 327 months of imprisonment.

       After the government lodged an objection to the two-level decrease for acceptance of

responsibility, the probation officer issued a supplemental addendum to the PSR that reversed

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United States v. Wright

course on this issue because “the defendant’s arrest for Unlawful Possession of a Controlled

Substance and Unlawful Possession of Marijuana [in Illinois] demonstrates he has not shown a

voluntary termination or withdrawal from criminal conduct or associations.” Thus, the adjusted

base offense level was revised to 38, resulting in a sentencing range of between 324 and 405

months of imprisonment.

       On May 20, 2004, the district court conducted a sentencing hearing. At this time, defense

counsel continued to argue for a two-level decrease for acceptance of responsibility but conceded

that the drug quantity at issue involved more than 150 grams. The district court rejected his

contention in these terms:

               Here, while being on an absconding status, two really unusual things
       occurred. One is the defendant was arrested in a drug house or in a place where
       drugs were being used, possessed, sold or whatever, and therefore, presumably in
       a continuation of criminal behavior. Secondly, he gave an incorrect name, again
       continuing of [sic] behavior that would be in violation of certainly the conditions
       of bond and certainly potentially violation of law. So therefore, this Court believes
       that an acceptance of responsibility should not be given in this matter.

The district court concluded by sentencing defendant to 324 months of imprisonment and five

years of supervised release.

                                                II.

       After judgment had been entered, the Supreme Court decided Blakely v. Washington, 124

S.Ct. 2531 (2004), and United States v. Booker,125 S.Ct. 738 (2005). In his brief to this court,

defendant contends that re-sentencing is required because the district court calculated his offense

level based upon a number of facts neither admitted by him nor found beyond a reasonable doubt




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No. 04-1685
United States v. Wright

in violation of the Sixth Amendment.1 These facts include the drug quantity determination,

obstruction of justice, and possession of a firearm during the offense.

         As we recently explained, Booker applies to all criminal cases on direct review. Barnett,

398 F.3d at 524 (citing Booker, 125 S.Ct. at 769). However, because defendant did not raise a

Sixth Amendment challenge in the district court, we review for plain error. Oliver, 397 F.3d at

377-78; Fed. R. Crim. P. 52(b). This court has already applied plain error analysis to dozens of

Booker claims. In the vast majority of these cases, we have elected to remand to the district court

for re-sentencing. See, e.g., United States v. Hudson, 405 F.3d 425, 444 (6th Cir. 2005); Barnett,

supra; Oliver, supra; United States v. McDaniel, 398 F.3d 540, 547-50 (6th Cir. 2005). Moreover,

we have recently concluded that plain error occurs where, as here, the district court sentenced

defendant under what it perceived to be a mandatory, rather than advisory, Guidelines scheme

unless “the trial record contains clear and specific evidence that the district court would not have,

in any event, sentenced the defendant to a lower sentence under an advisory Guidelines scheme.”

Barnett, 398 F.3d at 529.

         That said, Booker and its progeny do not require that this court remand for re-sentencing

whenever a defendant challenges a sentencing decision. It goes without saying that “[t]he Sixth

Amendment does not apply to agreed-upon facts; it regulates the decisionmaker of disputed facts.”

United States v. Bradley, 400 F.3d 459, 462 (6th Cir. 2005). In the instant case, defendant

contends that the district court’s finding that he possessed more than 150 grams of cocaine base



         1
         Although defendant’s brief relies upon Blakely, he since has submitted a letter to this court pursuant to Fed.
R. App. P. 28(j) calling Booker and Oliver, supra, to our attention.

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United States v. Wright

for sentencing purposes should have been determined beyond a reasonable doubt. However,

defense counsel conceded at the sentencing hearing that his client possessed 151.16 grams of

cocaine base, rendering it an “agreed-upon fact” outside the purview of Booker.

       Defendant did preserve his challenge to the district court’s decision not to grant him a two-

level downward adjustment for acceptance of responsibility. However, Booker applies to those

facts that potentially increase a sentence beyond those established by a plea of guilty or a jury

verdict. See Booker, 125 S.Ct. at 756; Blakely, 124 S.Ct. at 2536. A downward adjustment does

not fall into that category. While it remains subject to appellate review when, as here, it has been

properly preserved, our analysis remains unaffected by Booker except to the extent that the

Guidelines are now advisory rather than mandatory.

       We accord due deference to the district court’s denial of acceptance of responsibility,

keeping in mind that its “factual determination of whether a defendant has accepted responsibility

for his crime enjoys the protection of the clearly erroneous standard.” United States v. Robinson,

152 F.3d 507, 512 (6th Cir. 1998) (citing United States v. Downs, 955 F.2d 397, 400 (6th Cir.

1992)). In the instant case, defendant failed to appear for trial and was charged with drug

trafficking while on the lam. Defendant contends that this behavior does not preclude a finding

that he accepted responsibility for his crime of conviction. We agree. However, it is equally true

that the district court could take that behavior into consideration and conclude that, under the

particular facts of this case, a two-level downward adjustment was not warranted. At the very

least, the district court did not commit clear error in reaching its decision.




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United States v. Wright

       Finally, we turn to two sentencing enhancements that do implicate Booker: possession of

a firearm and obstruction of justice. Each of these enhancements, which were found by the district

court by a preponderance of the evidence, resulted in a two-level increase to defendant’s base

offense level. Had they not been imposed, his sentencing range would have been based upon an

adjusted offense level of 34 instead of 38. Rather than a sentencing range of between 324 and 405

months of imprisonment, defendant would have faced a Guidelines range of between 210 and 262

months. Because the Guidelines were mandatory at the time that the district court sentenced

defendant and the maximum sentence established beyond a reasonable doubt – in this case by

admitted facts – supports a maximum sentence of only 262 months, the sentence imposed violated

the Sixth Amendment. Oliver, 397 F.3d at 378. Accordingly, we must remand for the district

court to revisit these enhancements in light of Booker and our cases construing it.

                                               III.

       The judgment of the district court is vacated and the cause remanded for re-sentencing

consistent with this opinion.




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