                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 06a0069n.06
                             Filed: January 24, 2006

                                               Case No. 04-2491

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                                    )
                                                              )
            Plaintiff-Appellee,                               )
                                                              )        ON APPEAL FROM THE
                   v.                                         )        UNITED STATES DISTRICT
                                                              )        COURT FOR THE WESTERN
 LARON ADAMS LEE HORTON,                                      )        DISTRICT OF MICHIGAN
                                                              )
            Defendant-Appellant.                              )
                                                              )
 _______________________________________                      )

BEFORE: BOGGS, Chief Judge; and BATCHELDER, Circuit Judges; KATZ*, District
Judge.

        ALICE M. BATCHELDER, Circuit Judge. Laron Adams Lee Horton (“Horton”) appeals

the sentence imposed after he pleaded guilty to one count of felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). The Pre-Sentence Investigation Report calculated Horton’s

guideline range to be 57-71 months and the district court adopted its findings, sentencing him to 71

months in prison. Horton filed this timely appeal and asserts that the district court erred in treating

the sentencing guidelines as mandatory and in finding that his prior state-court conviction for third-

degree home invasion constituted a crime of violence, which required that his base offense level

under the United States Sentencing Guidelines be set at 20. Though we find no error in the way the




        *
         The Honorable David A. Katz, Senior United States District Judge for the Northern District of Ohio, sitting
by designation.
district court calculated Horton’s sentence, this case must be remanded for re-sentencing under

United States v. Oliver, 397 F.3d 369 (6th Cir. 2005).

                               I. Procedural and Factual History

       Two Lansing, Michigan, police officers on routine patrol in the parking lot of a hotel saw

in that lot a vehicle with its motor running. A woman was sitting in the passenger seat. As the

officers approached the vehicle in their patrol car, two men came out of a nearby hotel room and

walked toward the vehicle. Horton was one of those men; he was carrying a white plastic bag and

got into the vehicle. The other man walked off in another direction. When the officers pulled their

patrol car behind the vehicle, Horton quickly exited, but one officer got out of the patrol car and

stopped him. The other officer also exited the patrol car and, approaching Horton’s car, noticed a

clear plastic bag containing what the officer believed to be marijuana between the driver and

passenger seats of the car. The officers took Horton into custody and searched his vehicle, finding

the white plastic bag, which contained 1.9 kilograms of marijuana, an electric scale, and a loaded

Bryco .380 semiautomatic handgun.

       Horton was charged with possession of marijuana with intent to distribute and possession

of a firearm by a felon; he entered a guilty plea to the firearms charge pursuant to a plea agreement.

At sentencing, Horton objected to the application of the U.S. Sentencing Guidelines to his case

based on Blakely v. Washington, 542 U.S. 296 (2004), but the district court, following our opinion

in United States v. Koch, 383 F.3d 436, 443 (6th Cir. 2004) (en banc), treated the guidelines as

mandatory in calculating Horton’s sentence.

       Horton objected to the application of U.S.S.G. § 2K2.1(a)(4)(A), which required that his

initial base offense level be set at 20, because he had not admitted that his Michigan conviction for


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third-degree home invasion was a “crime of violence.” Horton also objected to a four-point increase

in the total offense level pursuant to U.S.S.G. § 2K2.1(b)(5) for possessing the firearm in connection

with another felony offense, because the facts on which the increase was based had not been charged

in the indictment, found by a jury beyond a reasonable doubt, or admitted. The district court

overruled the objections, holding that United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), allowed

the sentencing court to find both the fact and the character of a prior conviction by a preponderance

of the evidence. Horton filed this timely appeal, challenging the district court’s treatment of the

sentencing guidelines as mandatory, its finding by a preponderance of the evidence that he possessed

a firearm in connection with another felony, and its finding that Horton had been convicted of third-

degree home invasion, which is a “crime of violence” for sentencing guidelines purposes.

                                 II. Remand for Re-Sentencing

       The parties agree that this case must be remanded to the district court for re-sentencing in

light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and United States v. Barnett,

398 F.3d 516 (6th Cir. 2005), because the district court improperly treated the sentencing guidelines

as mandatory and improperly increased the sentence on the basis of the court’s own factual findings.

We note for the record that because the district judge found by a preponderance of the evidence that

Horton possessed a firearm in connection with another felony and increased Horton’s sentence based

on this finding, the sentence was imposed in violation of the Sixth Amendment and remand is proper

under United States v. Oliver, 397 F.3d 369 (6th Cir. 2005), rather than under Barnett, which held

that, under plain error analysis, remand is proper—even in the absence of a Sixth Amendment

violation—where the sentencing court believed that the guidelines were mandatory. Barnett, 398

F.3d at 526-30.


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                            III. Calculation of the Guideline Range

       Horton also challenges the district court’s classification of a prior conviction for third-degree

home invasion under Michigan law as a “crime of violence” for guidelines calculation purposes.

Although the case must be remanded under Oliver, in the interests of judicial economy, we will

review Horton’s claims of error in the calculation of his guidelines sentence, because Booker

instructed sentencing courts to take the guidelines into account when determining a defendant’s

sentence. Booker, 543 U.S. at __; 125 S. Ct. at 764.

       In United States v. Davidson, 409 F.3d 304 (6th Cir. 2005), we determined that, based on

Booker’s instructions, we must review a district court’s application of the guidelines in the same way

that we did before Booker because, although the guidelines are no longer mandatory, they do form

a starting point for the district court’s determination of the defendant’s sentence. Id. at 310. We

review de novo the district court’s interpretations of the sentencing guidelines, and we review its

factual findings for clear error. United States v. Williams, 411 F.3d 675, 677 (6th Cir. 2005); United

States v. Chriswell, 401 F.3d 459, 463 (6th Cir. 2003).

       The sentencing court must first determine whether there has been a prior conviction at all,

a finding that may be made by a preponderance of the evidence. See Almendarez-Torres v. United

States, 523 U.S. 224, 230 (1998); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Blakely, 542

U.S. at 301; Booker, 530 U.S. at __; 125 S. Ct. at 756. Though Horton argues that Justice Thomas

probably now agrees with four other justices who would overturn Almendarez-Torres, see Shepard

v. United States, 544 U.S. 13, __, 125 S. Ct. 1254, 1263-64 (2005) (Thomas, J., concurring), the

Supreme Court has not done so and, unless and until it does, we are required to follow that case.

At his plea hearing, Horton admitted the fact of his third-degree home invasion conviction, and he


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did not object to the Pre-Sentence Investigation Report’s finding that he had been convicted of third-

degree home invasion on February 3, 2003. The district court’s finding was not erroneous.

       At sentencing, Horton objected to the process by which the district court determined that

Horton had a prior conviction for third-degree home invasion, but not to the court’s legal conclusion

that third-degree home invasion is a crime of violence. The latter issue therefore was not properly

preserved below, and our review is for plain error. See United States v. Hazelwood, 398 F.3d 792,

798 (6th Cir. 2005). Under that test, there must be (1) error, (2) that is plain, (3) that affects

substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Oliver, 397 F.3d at 378.

       In evaluating whether a particular offense is a “crime of violence,” we must employ the

“categorical” approach, which requires courts to base their determinations on the statutory definition

of the crime, though the court may review the indictment, plea agreement, plea colloquy, or factual

finding to which the defendant assented if it finds that certain conduct falling within the statute’s

coverage is properly considered non-violent. United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.

1999); Shepard, 544 U.S. at __, 125 S. Ct. at 1257.

       The government argues that the sentencing guidelines specifically define a crime of violence

to include “burglary of a dwelling,” see U.S.S.G. § 4B1.2(a)(2), and that because we have held

previously that, in Michigan, home invasion of the first and second degrees are functional

equivalents of common-law burglary and fall within the definition of a “crime of violence,” third-

degree home invasion should be treated similarly. See United States v. Garcia-Serrano, 107 F.

App’x 495 (6th Cir. 2004); United States v. Hart, 104 F. App’x 469 (6th Cir. 2004). The statute




                                                   5
defining the offense states that a person is guilty of third-degree home invasion if he does either of

the following:

       (a) Breaks and enters a dwelling with intent to commit a misdemeanor in the
       dwelling, enters a dwelling without permission with intent to commit a misdemeanor
       in the dwelling, or breaks and enters a dwelling or enters a dwelling without
       permission and, at any time while he or she is entering, present in, or exiting the
       dwelling, commits a misdemeanor.

       (b) Breaks and enters a dwelling or enters a dwelling without permission and, at any
       time while the person is entering, present in, or exiting the dwelling, violates any of
       the following ordered to protect a named person or persons:

                 (I) A probation term or condition.

                 (ii) A parole term or condition.

                 (iii) A personal protection order term or condition.

                 (iv) A bond or bail condition or any condition of pretrial release.

MICH. COMP. LAWS § 750.110a(4).

       Horton argues that this definition is broader than the burglary definition the Supreme Court

adopted in Taylor v. United States, 495 U.S. 575, 599 (1990), in which the Court found that the

underlying intended “crime” does not have to be a felony in order to support a finding that the

burglary was a crime of violence for purposes of the Armed Career Criminal Act. He argues that

the Michigan statute allows a third-degree home invasion conviction for simply “being in the wrong

place at the wrong time.”

       This argument is belied by the text of the statute itself. Part (a) specifically requires the

intent to commit a misdemeanor or the actual commission of a misdemeanor within the dwelling,

which is a “crime” sufficient to make the burglary a “crime of violence.” See Taylor, 495 U.S. at

598. Part (b) of the Michigan statute does not require that a misdemeanor be committed or intended,


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but requires that during the commission of the home invasion, the offender violate an order intended

for the protection of a named individual. As the Taylor Court explained, “[t]he fact that an offender

enters a building to commit a crime often creates the possibility of a violent confrontation between

the offender and an occupant, caretaker, or some other person who comes to investigate.” Id. at 588.

This is as true in the M.C.L. § 750.110a(4)(b) context as it is in any other context. No section of this

statute, therefore, proscribes conduct that could not be considered a “crime of violence.”

       Moreover, third-degree home invasion is a crime of violence even if it cannot be pigeonholed

neatly into the definition of burglary. The sentencing guidelines provide that a crime of violence

includes an unenumerated offense that, “by its nature, present[s] a serious potential risk of physical

injury to another.” U.S.S.G. § 4B1.2 cmt. n.1; see also U.S.S.G. § 4B1.2(a)(1). All of the conduct

in M.C.L. § 750.110a(4)(b) presents as serious a potential risk of physical injury as any burglary

crime. The district court therefore did not err, plainly or otherwise, in finding that third-degree

home invasion is a crime of violence for sentence enhancement purposes.

                                           IV. Conclusion

       For the foregoing reasons, we VACATE Horton’s sentence and REMAND to the district

court for re-sentencing.




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