                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0230n.06
                             Filed: March 31, 2006

                                               No. 04-1707

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
JASON EDWARD FRANKOVICH,                              )    WESTERN DISTRICT OF MICHIGAN
                                                      )
        Defendant-Appellant.                          )




        Before: DAUGHTREY and GILMAN, Circuit Judges, and RUSSELL,* District Judge.


        PER CURIAM. The defendant, Jason Frankovich, pleaded guilty to a charge of

conspiracy to manufacture more than 100 marijuana plants. He now appeals the 60-month

prison term imposed upon him for that offense, alleging that the district court improperly

increased his criminal history category by including in its sentencing determination under

the guidelines a juvenile conviction for “open intoxicants in motor vehicle – passenger.” We

find no reversible error in the calculation of the defendant’s sentence, and we therefore

affirm the judgment of the district court.




        *
        The Hon. Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting
by designation.
No. 04-1707
United States v. Frankovich

       At his guilty plea hearing, the defendant admitted – in his own words – that he

“knowingly and intentionally conspired with Brian Lee Casey to manufacture more than 140

marijuana plants in the Hiawatha National Forest on or about March of 2003; and in around

September of 2003, in the fall time, was apprehended for doing so.” In exchange for the

government’s promise to dismiss two other charges lodged against him, Frankovich

entered a plea of guilty to a charge of conspiracy to manufacture more than 100 marijuana

plants and agreed to waive “the right to appeal any sentence which is at or below the

maximum of the guidelines range as determined by the Court.”


       The United States Probation Office conducted a presentence investigation of

Frankovich and recommended, in light of the defendant’s prior criminal record, that he be

sentenced under the then-mandatory United States Sentencing Guidelines as an offense

level 17, criminal history category III offender. The defendant would thus presumptively

have been subject to a prison sentence of between 30-37 months. Because 21 U.S.C.

§841(b)(1)(B)(vii) imposes a mandatory minimum sentence of five years for a drug law

violation involving “100 or more marijuana plants regardless of weight,” however, the

probation officer recommended a 60-month prison sentence for Frankovich.             The

prosecution lodged an objection to Frankovich’s criminal history category, asserting that

the probation office should also have added an additional criminal history point to its

calculation because of the defendant’s juvenile conviction in Michigan state court for

possessing an open container of an intoxicant while a passenger in a motor vehicle. The

district court agreed with the government’s position and determined that the additional

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No. 04-1707
United States v. Frankovich

criminal history point would subject the defendant to sentencing as a criminal history

category IV offender, rather than as a criminal history III offender. Although such a

designation would ordinarily result in a prison sentence of 37-46 months, the mandatory

minimum sentence provisions of 21 U.S.C. § 841(b)(1)(B)(vii) nevertheless required the

district court to sentence the defendant to 60 months’ incarceration.


       On appeal, both the government and the defendant agree that the waiver contained

in the plea agreement they executed does not prevent the defendant from contesting the

imposition of the additional criminal history point to the criminal history category calculation,

given explicit language in the agreement permitting Frankovich to appeal any sentence

imposed above the applicable guideline range.           Because the defendant’s 60-month

sentence exceeded even the high end of the 37-46-month range found appropriate under

the guidelines by the district court, the terms of the plea agreement do not foreclose this

appeal.


       We nevertheless conclude that the question presented on appeal raises an issue

that Federal Rule of Criminal Procedure 52(a) renders moot. That rule provides that “[a]ny

error, defect, irregularity or variance which does not affect substantial rights shall be

disregarded.” As noted earlier, the applicable federal statute – 21 U.S.C. § 841(b)(1)(B)(vii)

– imposes a mandatory minimum sentence of 60 months upon an individual convicted of

the offense to which Frankovich pleaded guilty. Consequently, whether the district court

considered the defendant to be a category III offender subject to a range of 30-37 months


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No. 04-1707
United States v. Frankovich

or a category IV offender subject to a range of 37-46 months is irrelevant. Under the facts

of this case, the district judge was bound by statute to impose a sentence no lower than the

60-month sentence he ultimately imposed. Frankovich has thus failed to establish any

prejudice from the alleged error.1


        Because the sentencing error alleged by Frankovich could not have affected his

sentence, he is not entitled to relief. We therefore AFFIRM the judgment of the district

court in its entirety.




        1
          Frankovich has submitted to the court a citation to supplemental authority in accordance with the
provisions of Rule 28(j) of the Federal Rules of Appellate Procedure. In that submission, he directs our
attention to the decision in United States v. Cole, 418 F.3d 592 (6th Cir. 2005), and suggests that Cole
mandates that we find the challenged conviction for possessing an open container of an intoxicant to be
“similar” to a juvenile status offense that is never counted in determining a defendant’s criminal history
category score. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(c)(2). Cole, however, involved the offense
of possession of alcohol by a minor; in such a case, we held that it was only the age of the defendant that
converted an otherwise lawful act into a crime. Consequently, the offense was properly considered a “juvenile
status offense.” By contrast, Michigan’s prohibition on the possession of open containers of intoxicants by
either the operator or occupant of a motor vehicle applies to all individuals regardless of age. See M.C.L.A.
§ 257.624a(1). Cole is thus inapposite to the issue presented by Frankovich.

         The defendant also asserts, without citation, in his Rule 28(j) letter that “[t]he addition of one point by
the district court is res judicata in any future sentencing. For this reason, the issue [of] Mr. Frankovich’s
sentence calculation is not moot . . . .” But, in any subsequent federal prosecution of the defendant for an
additional crime, he may challenge any aspect of the presentence report prepared for that case that he deems
subject to legitimate dispute.

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