           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    United States v. Helton                      No. 02-5536
        ELECTRONIC CITATION: 2003 FED App. 0400P (6th Cir.)
                    File Name: 03a0400p.06                              Appellant. Kenneth R. Taylor, ASSISTANT UNITED
                                                                        STATES ATTORNEY, Lexington, Kentucky, for Appellee.
                                                                        ON BRIEF: Gerald D. DeRossett, PILLERSDORF,
UNITED STATES COURT OF APPEALS                                          DeROSSETT & LANE, Prestonsburg, Kentucky, for
                                                                        Appellant. Kenneth R. Taylor, Charles P. Wisdom, Jr.,
                  FOR THE SIXTH CIRCUIT                                 ASSISTANT UNITED STATES ATTORNEYS, Lexington,
                    _________________                                   Kentucky, for Appellee.

 UNITED STATES OF AMERICA , X                                                               _________________
             Plaintiff-Appellee, -
                                   -                                                            OPINION
                                   -   No. 02-5536                                          _________________
            v.                     -
                                    >                                     SUTTON, Circuit Judge. In this, his second appeal from
                                   ,                                    the same conviction, Joe Douglas Helton challenges the
 JOE DOUGLA S HELTON,              -
          Defendant-Appellant. -                                        consecutive sentences he received for: (1) possession of ten
                                                                        grams of cocaine with intent to distribute in violation of
                                  N                                     21 U.S.C. § 841(a)(1); (2) use of a firearm during and in
       Appeal from the United States District Court                     relation to a drug-trafficking offense in violation of 18 U.S.C.
     for the Eastern District of Kentucky at Pikeville.                 § 924(c); and (3) possession of a firearm in violation of
     No. 99-00022—Joseph M. Hood, District Judge.                       18 U.S.C. § 922(g)(1). For the reasons that follow, we
                                                                        AFFIRM.
                  Argued: September 10, 2003
                                                                        I. BACKGROUND
            Decided and Filed: November 12, 2003
                                                                          In 1999, from June 2 to June 3, Helton and three others
        Before: GIBBONS and SUTTON, Circuit Judges;                     (Harold Dean McCarty (“McCarty”), Mildred Stanley Slusher
                  TARNOW, District Judge.*                              (“Stanley”) and Molly Minix Shepherd (“Minix”)) used
                                                                        cocaine at Helton’s residence while Helton and McCarty
                      _________________                                 prepared half-gram packages of cocaine for sale. Realizing
                                                                        that they needed to restock their supply of cocaine (in view of
                           COUNSEL                                      the amount they had consumed), Helton and McCarty decided
                                                                        to exchange Helton’s television for a half-gram of cocaine
ARGUED:   Gerald D. DeRossett, PILLERSDORF,                             and $400. Stanley drove McCarty to a prospective seller. On
DeROSSETT & LANE, Prestonsburg, Kentucky, for                           the way, Stanley watched McCarty hide nineteen cocaine
                                                                        packages behind a traffic sign.
                                                                          After agreeing to terms with the cocaine seller and after
    *
     The Honorable Arthur J. Tarnow, United States District Judge for   returning to Helton’s residence to load the television onto his
the Eastern District of Michigan, sitting by designation.

                                 1
No. 02-5536                    United States v. Helton     3    4     United States v. Helton                      No. 02-5536

truck, McCarty left to make the exchange. While he was             The United States District Court for the Eastern District of
gone, Stanley retrieved five or six of the recently-hidden      Kentucky severed the trials of McCarty and Helton. In
packages for Helton, Minix and herself—all of whom were         Helton’s trial, a jury found him guilty on all three counts in
suffering from cocaine withdrawal—to consume. When              the indictment: (1) possession of ten grams of cocaine with
McCarty learned that no cocaine remained at the hiding place,   intent to distribute in violation of 21 U.S.C. § 841(a)(1)
he accused Stanley of stealing the packages. She denied any     (Count I); (2) use of a firearm during and in relation to a drug-
knowledge of their whereabouts, but McCarty did not believe     trafficking offense in violation of 18 U.S.C. § 924(c) (Count
her and proceeded to shoot her. The bullet passed through       II); and (3) possession of a firearm in violation of 18 U.S.C.
Stanley’s shoulder and exited out her lower back, but did not   § 922(g)(1) (Count III).
kill her.
                                                                   In sentencing Helton, the district court cross-referenced his
  At this point, Helton and McCarty drove Stanley to the        § 922(g) conviction for possession of a firearm in accordance
hiding place behind the traffic sign where McCarty threatened   with U.S.S.G. § 2K2.1(c)(1)(A), concluding that he had used
her with the gun, again demanding that she tell them where      the firearm in connection with an attempt to commit another
the cocaine was. She again disclaimed any knowledge about       offense. Under U.S.S.G. § 2X1.1(c), the district court
the location of the cocaine, and McCarty fired at her head,     determined that the attempt was expressly covered by the
missing her.                                                    Guidelines’ provision for attempted murder, see U.S.S.G.
                                                                § 2A2.1(a)(1), which creates a base-offense level of twenty-
  Helton and McCarty then drove Stanley to a strip mine         eight. With a three-point enhancement for Stanley’s “serious
where they tied cement blocks to her body and threw her into    bodily injury,” Helton’s base-offense level for Counts I and
a nearby pond. In a fortuitous application of Murphy’s Law,     III (grouped under U.S.S.G. § 3D1.2) became thirty-one. Past
the pond turned out to be waist deep. Stanley did not drown.    criminal convictions placed Helton in a level II criminal
                                                                history category, giving him a sentencing range on Counts I
  In one last effort to “put her under,” Helton took aim at     and III of 121–151 months. The district court sentenced him
Stanley three times and tried to shoot her three times. Each    to 131 months on both counts. The court also sentenced
time, he missed the cement-laden Stanley. Apparently            Helton to a sixty-month consecutive sentence under 18 U.S.C.
stymied, Helton and McCarty dragged Stanley from the pond       § 924(c)(1)(A)(ii) (use of a firearm during a drug-trafficking
and moved her to a nearby woods. In a conversation that         offense). All sentences considered, Helton received a total
history regrettably does not fully record, Helton and McCarty   sentence of 191 months.
discussed what to do with Stanley next.
                                                                  Helton appealed his convictions and sentences on a number
  Happily for Stanley, they did not have a chance to follow     of issues, including inappropriate cross-referencing. He
through on their next plan. Helton left the scene and sleep     claimed the district court should have used U.S.S.G.
overcame McCarty, allowing Stanley to escape to a nearby        § 2X1.1(a) as its cross-referencing guideline and should have
residence where she was airlifted to the University of          applied U.S.S.G. § 2A2.2 for aggravated assault (for a base-
Kentucky Medical Center. There, she underwent surgery and       offense level of fifteen), because (1) he did not have the
eventually recovered.                                           requisite intent for murder, and (2) he acted under duress in
                                                                view of several threats by McCarty. The Government cross-
                                                                appealed, seeking a four-point (rather than three-point)
No. 02-5536                      United States v. Helton      5    6     United States v. Helton                     No. 02-5536

enhancement of Helton’s base offense level, due to the extent      been indicted and convicted by a jury, which would not
of Stanley’s injury.                                               include attempted murder. The district court disagreed. It
                                                                   instead sentenced Helton in accordance with the four-point
  We affirmed Helton’s convictions and agreed that the             enhanced base-offense level for attempted murder and for a
district court appropriately applied the attempted-murder          “permanent or life-threatening bodily injury.” Helton thus
cross reference. See United States v. Helton, 32 Fed. Appx.        received 120 months on Count III, sixty months on Count II,
707 (6th Cir. 2002) (“Helton I”). At the same time, we agreed      and an additional eighteen months on Count I, all to be served
with the Government that Stanley had sustained a “permanent        consecutively, for a total sentence of 198 months. The court
or life-threatening bodily injury,” which warranted a four-        entered judgment on April 16, 2002, and Helton filed this
point rather than a three-point enhancement of Helton’s base       appeal one week later.
offense level.        See id. at 716 (citing U.S.S.G.
§ 2A2.1(b)(1)(A)); U.S.S.G. § 1B1.1 cmt. n.1(h). In view of        II. DISCUSSION
this conclusion, we remanded the case for resentencing. See
Helton I, 32 Fed. Appx. at 709.                                      The legal issues raised in this case do not contain the same
                                                                   suspense as the facts. We review the district court’s legal
   In the same week that we ruled on Helton’s original appeal,     conclusions de novo and its fact-findings for clear error. See
we released United States v. Stubbs, 279 F.3d 402 (6th Cir.        United States v. Griffis, 282 F.3d 443, 446 (6th Cir. 2002).
2002). In Stubbs, we reversed a mandatory sixty-month
sentence—resulting from cross-referencing under U.S.S.G.               A. The Scope of the Remand.
§ 2K2.1(c)(1)(A)—imposed on a defendant convicted
of violating 18 U.S.C. § 924(o). We concluded that this               The Government initially challenges our authority to reach
increase in the minimum sentence of the defendant was “more        Helton’s claim that Stubbs prohibits the attempted-murder
fundamental [than sentencing in excess of the statutory            cross referencing. In its view, this Court’s limited remand in
maximum, prohibited by Apprendi v. New Jersey, 530 U.S.            Helton I did not authorize the district court to do anything but
466 (2000)] because Defendant was indicted for one offense         apply the four-point enhancement prompted by the fact that
and sentenced under another simply by operation of a cross-        Stanley suffered a “permanent or life-threatening bodily
reference in the sentencing guidelines . . . .” Stubbs, 279 F.3d   injury.” In one sense, the Government is correct. When we
at 409. Unlike “relevant conduct” guidelines calling for a         issue a remand order that is limited by its terms to a discrete
determinate increase in a sentencing base-offense level,           issue, the district court obtains jurisdiction to address only
Stubbs reasoned, the cross-referencing provision “required the     that issue. See United States v. Campbell, 168 F.3d 263, 265
district court to calculate [the defendant’s base-offense level]   (6th Cir. 1999). Where, however, “an appellate court simply
as if his offense of conviction had been murder,” a charge not     vacates a sentence and remands to the district court for
in the indictment. Id. at 408 (emphasis in original). Relying      ‘resentencing,’ that order is considered a general one that
on several post-Apprendi decisions, we concluded that cross-       allows the district court to resentence the defendant de novo.”
referencing under these circumstances violated the                 United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997);
defendant’s Fifth and Sixth Amendment rights.                      see also United States v. Hebeka, 89 F.3d 279, 284–85 (6th
                                                                   Cir. 1996). Unless otherwise specified, a remand order is
  Invoking Stubbs (and Apprendi), Helton claimed on remand         presumed to be general in nature. See Moore, 131 F.3d at
that he could be sentenced only for offenses for which he had      598.
No. 02-5536                      United States v. Helton      7    8     United States v. Helton                       No. 02-5536

   In this instance, Helton I remanded the case to the district    the district court may sentence the defendant to the statutory
court “for resentencing consistent with this opinion.” Helton      minimum, the statutory maximum, or anything in between,
I, 32 Fed. Appx. at 716. In view of this general language and      based on its (proper) application of the Guidelines and based
in view of the presumption in favor of a general remand, we        on its (permissible) preponderance-of-the-evidence findings
conclude that the district court had authority to review           under the Guidelines. So long as the judge does not sentence
Helton’s argument under Stubbs. So, accordingly, do we.            the defendant beyond the maximum levels authorized by the
                                                                   statute under which the defendant was convicted, Harris
  B. The Cross-Referencing Challenge.                              makes clear that the district court does not run afoul of
                                                                   Apprendi or the constitutional rights that it protects.
   Like the defendant in Stubbs, Helton claims that the district
court sentenced him as if he had committed a crime                   Recent precedent from this Court confirms this conclusion.
(attempted murder) for which he was never charged and for          As we recently have said, “a fact that merely activates or
which no jury found him guilty beyond a reasonable doubt.          increases a statutorily mandated minimum sentence may, at
Like the defendant in Stubbs, he claims that the Guidelines        the legislature’s discretion, be submitted to a judge and
may not be applied to increase his mandatory minimum               proved only by a preponderance of the evidence.” United
sentence in this manner, unless a jury first finds beyond a        States v. Chapman, 305 F.3d 530, 536 (6th Cir. 2002). See
reasonable doubt that he engaged in the alleged conduct. And       also United States v. Copeland, 321 F.3d 582, 603 (6th Cir.
like the defendant in Stubbs, he claims that any such              2003) (holding that under Harris “a defendant cannot
sentencing violates his Fifth and Sixth Amendment rights.          demonstrate an Apprendi violation where he has been
                                                                   sentenced to a term of years encompassed by [the statute
  Stubbs, however, is no longer good law. Neither that             under which he is charged]”) (emphasis in original); United
decision nor the precedents upon which it relied, see United       States v. Lawrence, 308 F.3d 623, 635 (6th Cir. 2002) (noting
States v. Ramirez, 242 F.3d 348 (6th Cir. 2001) and United         that while this Court had held in several opinions that
States v. Flowal, 234 F.3d 932 (6th Cir. 2000), have survived      Apprendi applied to statutory minimums, Harris overruled
a recent Supreme Court decision delineating the scope of           that conclusion). In the aftermath of Harris, we also have
Apprendi. In Harris v. United States, 536 U.S. 545 (2002),         specifically concluded that “Flowal, Ramirez . . . and all other
decided after Stubbs, the Supreme Court held that the              cases before this Circuit in which we have held that Apprendi
constitutional mandates of Apprendi do not apply to the            applies to mandatory minimum sentences, are overruled to the
Sentencing Guidelines when the defendant’s sentence remains        extent they conflict with Harris . . . .” United States v.
below the maximum sentence authorized by statute. In that          Leachman, 309 F.3d 377, 383 (6th Cir. 2002). The decisions
setting, the Court concluded, the Constitution permits a judge     upon which Stubbs relied did not survive Harris. It follows
to make factual findings that increase a defendant’s               that the same is true of Stubbs.
mandatory minimum sentence under the preponderance-of-
the-evidence standard. Id. at 568–69. “Within the range              Applied here, Harris and our recent precedents establish
authorized by the jury’s verdict,” the Court reasoned, “the        that the district court’s sentence fell well within constitutional
political system may channel judicial discretion—and rely          limits. In this instance, the district court on remand sentenced
upon judicial expertise—by requiring defendants to serve           Helton to consecutive sentences totaling 198 months. As no
minimum terms after judges make certain factual findings.”         single sentence exceeded the maximum permitted by statute
Id. at 567. Under Harris, once the jury has determined guilt,
No. 02-5536                  United States v. Helton   9

under any of the three counts on which the jury convicted
him, Helton’s constitutional challenge cannot succeed.
III. CONCLUSION
  For the foregoing reasons, we AFFIRM.
