                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0146p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                     X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 03-2493
          v.
                                                      ,
                                                       >
 JOHN ALLEN JACKSON,                                  -
                            Defendant-Appellant. -
                                                     N
                       Appeal from the United States District Court
                  for the Western District of Michigan at Grand Rapids.
                    No. 03-00198—Richard A. Enslen, District Judge.
                                          Argued: December 1, 2004
                                    Decided and Filed: March 24, 2005
         Before: NORRIS and COOK, Circuit Judges; BECKWITH, Chief District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT
OF MICHIGAN, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, ASSISTANT
UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L.
Nelson, FEDERAL PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT OF MICHIGAN,
Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        BECKWITH, Chief District Judge. Defendant-Appellant John Allen Jackson appeals a two-
level enhancement in his offense level, imposed at his sentencing under U.S.S.G. §2K2.1(b)(4).




         *
         The Honorable Sandra S. Beckwith, Chief United States District Judge for the Southern District of Ohio, sitting
by designation.


                                                           1
No. 03-2493           United States v. Jackson                                                 Page 2


I.     Background.
        Jackson was charged with, and pled guilty to, being a felon in possession of a firearm, in
violation of 18 U.S.C. §922(g)(1). At sentencing, Jackson objected to the assessment of a two-level
enhancement in his offense level under the United States Sentencing Guidelines Section
2K2.1(b)(4). That Section strictly enhances a sentence for possession of a “stolen” firearm. The
enhancement applies “whether or not the defendant knew or had reason to believe that the firearm
was stolen. . . .” Application Note 19 to Section 2K2.1. When Jackson was apprehended, he had
a gun in his car that belonged to his father and that Jackson had taken without permission. Jackson
claimed he had not “stolen” the gun, but had taken it with the intent to commit suicide. Jackson
assumed the gun would eventually be returned to his father, and thus it was not “stolen.”
       The district court rejected Jackson’s argument, noting that whether or not Jackson intended
to permanently deprive his father of his ownership of the gun was irrelevant to the imposition of the
Guideline enhancement, as the gun was intentionally taken without its owner’s permission.
Jackson was sentenced to 108 months.
II.    Standard of Review.
       The court reviews a district court’s interpretation of the Sentencing Guidelines de novo.
United States v. Corrado, 304 F.3d 593, 607 (6th Cir. 2002).
III.   Analysis.
        Jackson contends that the word “stolen” as used in the Guidelines should be interpreted to
be synonymous with common law larceny, a felonious taking with the intent to permanently deprive
the owner of his property. Under Michigan law, permanent deprivation is an element of the crime
of larceny or theft. See, e.g., People v. Goodchild, 68 Mich. App. 226, 232 (1976). Jackson argues
that since he had no intent to permanently keep the gun, the Guidelines enhancement should not
have been applied. He also argues that the word “stolen” is ambiguous, and asks that the rule of
lenity be applied to construe the purported ambiguity in his favor.
        Initially, we reject Jackson’s suggestion that Michigan law should determine the meaning
of “stolen” used in the Guidelines. “In the absence of a plain indication to the contrary, . . .
Congress, when it enacts a statute, is not making the application of the federal act dependent on state
law.” Jerome v. United States, 318 U.S. 101, 104 (1943). This Court has applied this presumption
to construction of terms in the Guidelines. See United States v. Jones, 107 F.3d 1147, 1163 (6th
Cir.), cert. denied, 521 U.S. 1127 (1997). So have our sister circuits. See, e.g., United States v.
Campbell, 167 F.3d 94, 98 (2d Cir. 1999) [question of whether a “vacated conviction” remains a
conviction for purposes of the Guidelines is a question of federal law]; United States v. Brown, 314
F.3d 1216 (10th Cir.), cert. denied 537 U.S. 1223 (2003) [federal law must apply to determine if jail
escape is a “continuing” offense]; and, United States v. Reed, 94 F.3d 341, 344 (7th Cir. 1996)
[meaning of “revocation of probation” must be determined under federal law].
         A paramount policy of the Guidelines is the promotion of “reasonable uniformity in
sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses
committed by similar offenders.” U.S.S.G. ch. 1, pt. A, §3 (2002). The objective of uniformity is
ill-served if Jackson could avoid the “stolen gun” enhancement, when a similarly-situated offender
in a different state could not. Moreover, nothing in the Guidelines suggests an intent to incorporate
state law variations in applying Section 2K2.1(b)(4).
        Thus we look to federal law to discern the meaning of “stolen.” The Guidelines do not
define the word. In United States v. Turley, 352 U.S. 407, 412-413 (1957), the Supreme Court noted
that “steal” (or “stolen”) has no accepted common law definition: “Furthermore, ‘stolen’ and ‘steal’
No. 03-2493            United States v. Jackson                                                    Page 3


have been used in federal criminal statutes, and the courts interpreting those words have declared
that they do not have a necessary common-law meaning coterminous with larceny and exclusive of
other theft crimes. Freed from a common-law meaning, we should give ‘stolen’ the meaning
consistent with the context in which it appears.” The Court held that “stolen” as used in 18 U.S.C.
§2312 was not coterminous with the crime of common law larceny.
        Other federal criminal statutes using the word “stolen” have been similarly interpreted. In
United States v. Handler, 142 F.2d 351 (2nd Cir. 1944), the Second Circuit held that “steal” as used
in National Stolen Property Act, 18 U.S.C. §2314, was not synonymous with common law larceny.
The Court concluded that “the statute is applicable to any taking whereby a person dishonestly
obtains goods or securities belonging to another with the intent to deprive the owner of the rights
and benefits of ownership.” Id. at 353. In Bell v. United States, 462 U.S. 356 (1983), the Court held
that 18 U.S.C. §2113(b) [“Whoever takes and carries away, with intent to steal or purloin, any
property or money . . . of any bank . . .”] is not limited to common law larceny, but reflects
Congressional intent to broaden the types of offenses covered by the statute. The Third Circuit
reached the same conclusion about 18 U.S.C. §661, which uses the same language as §2113(b); see,
United States v. Henry, 447 F.2d 283, 284 (3rd Cir. 1971). And in United States v. Howey, 427 F.2d
1017 (9th Cir. 1970), addressing 18 U.S.C. §641, the Ninth Circuit observed that Congress intended
to codify not only common law larceny and embezzlement, but also other acts “which shade into
those common law offenses, yet fail to fit precisely within their definitions.” Id. at 1018. These
other wrongful acts include “to steal” and “to purloin.” And in United States v. Cruz-Santiago, 12
F.3d 1, 3 (1st Cir. 1993), addressing U.S.S.G. Section 2B3.1, the First Circuit noted that the
Guidelines focus on whether the offender’s behavior created a significant risk of loss, not on
whether the property owner actually suffered the permanent loss of his property.
       These results mirror the Oxford English Dictionary’s definition of “steal,” as “To take
dishonestly or secretly.” None of these formulations suggest that a permanent deprivation is
required in order to conclude that property is “stolen.”
       One other appellate court addressed the precise question before us, and rejected the same
argument Jackson presents here. In United States v. Herrman, 1996 U.S. App. LEXIS 27842, at *4
(10th Cir. Oct. 28, 1996), a panel of the Tenth Circuit held in an unpublished opinion that a
defendant’s intent to “permanently deprive” is not required in order for a firearm to be “stolen” for
purposes of U.S.S.G. §2K2.1. We agree.
       Jackson also asks us to apply the rule of lenity, and construe “stolen” to require a finding that
a defendant intend to permanently deprive the owner of his property. The rule of lenity applies
when a statutory term is ambiguous and cannot be clarified by the statute’s history or structure. See
United States v. Boucha, 236 F.3d 768, 774 (6th Cir. 2001). Because we find that “stolen” is not
ambiguous, we decline to apply the rule of lenity here.
        Though we conclude that the district court’s interpretation of “stolen” was correct, we
nonetheless vacate Jackson’s sentence in light of United States v. Booker, 125 S.Ct. 738 (2005).
After Booker, where a defendant did not raise a Sixth-Amendment challenge to a sentence
enhancement at the district court, we review for plain error. United States v. Oliver, __ F.3d __,
2005 WL 233779, *6 (6th Cir. 2005). To warrant correction under plain-error review, an error must
be plain, affect substantial rights, and substantially affect the fairness, integrity, or public reputation
of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466 (1997). A sentence
enhancement in violation of the Sixth Amendment is an error that is plain. Oliver, 2005 WL
233779, at *7. Here, the error affected substantial rights, because the judge, though sentencing
Jackson to the middle of the Guidelines range, stated that the Guidelines were a failure and that he
could not depart from them even if he wanted to. Thus we may infer the district court may have
otherwise imposed a different sentence had it not considered the Guidelines mandatory. Further,
No. 03-2493           United States v. Jackson                                                  Page 4


the unconstitutional judicial fact-finding supporting this enhancement violated the fairness, integrity,
and public reputation of judicial proceedings. See id. at *8. Therefore, we remand this case to
permit the district court to resentence Jackson in a manner consistent with Booker.
