                            NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 05a0182n.06
                                     Filed: March 10, 2005

                                                   No. 04-5401

                               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
ROBERT GARY RYAN,                                            )    WESTERN DISTRICT OF KENTUCKY
                                                             )
         Defendant-Appellant                                 )
                                                             )
                                                             )



BEFORE:           MERRITT and ROGERS, Circuit Judges; and DUPLANTIER,* District Judge


         MERRITT, Circuit Judge. In this direct criminal appeal, the defendant Ryan raises two

inter-related sentencing issues: (1) that the District Court factually erred in making a four-level

upward adjustment when it found at sentencing that Ryan perpetrated a felony assault with a firearm

and that the assault was not justified by self-defense, and (2) that the case should be remanded for

re-sentencing under United States v. Booker, 125 S. Ct. 738 (2005), which holds (a) that the Sixth

Amendment prohibits judicial findings of fact (other than with respect to prior convictions) that

necessarily result in an upward adjustment to the sentence, and (b) that the Federal Sentencing

Guidelines must be regarded as creating an “indeterminate” sentencing system in which the


         *
         The Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of Louisiana, sitting
by designation.
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United States v. Ryan

Guidelines are only advisory. We conclude that the case must be remanded for re-sentencing under

the rule established in the Booker case because the mandatory upward adjustment imposed by the

District Court was “plain error.”

                                                   I.

       Ryan was indicted for violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (criminalizing

possession of a firearm by a felon and establishing a ten year maximum sentence for violations) by

being a felon in possession of a firearm (a .357 revolver) after committing the three felonies listed

in the indictment. Ryan entered a plea of guilty and received a sentence of 64 months imprisonment

after receiving a four-level relevant conduct enhancement under Guidelines § 2K2.1(b)(5) (“if the

defendant used or possessed any firearm . . . in connection with another felony offense . . . increase

by four levels”). The enhancement resulted from Ryan’s use of a firearm in connection with a fourth

felony assault offense, which was pending in the Jefferson County Circuit Court in Louisville,

Kentucky, at the time of the federal sentencing hearing in this case on March 18, 2004. At the

sentencing hearing, Ryan’s counsel did not admit the fourth assault offense but said that “he [Ryan]

is going to claim as a defense in the state court [self-defense] and that is why we are saying that this

wasn’t a felony . . . and he has not committed a felony with respect to the firearm.”

       The clerk’s office for the State Circuit Court in Louisville now advises that Ryan pled nolo

contendere on September 29, 2004, to the assault charge and received a sentence of eight years

imprisonment. He entered this nolo plea apparently in order not to admit the assault and to preserve

his claim in federal court that the upward adjustment should be set aside. Therefore, he did not in




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United States v. Ryan

fact make a claim of self-defense in the state court but simply entered a nolo plea neither admitting

nor denying the offense.

       Section 2K2.1, application note 4, states that “felony offense . . . means any offense (federal,

state or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal

charge was brought, or a conviction obtained.” Without taking evidence from witnesses, the District

Court (based on statements of counsel and information contained in the pre-sentence report) found

by a preponderance of the evidence that the facts proved the assault case pending in state court and

did not prove self-defense. The District Court, to that extent, decided the state criminal case as

relevant conduct under § 2K2.1(b)(5). Believing itself bound to do so, the Court increased the

offense level by four levels, which had the effect of increasing the permissible range of sentencing

by approximately 18 months.

                                                  II.

       The first claim is that the District Court erred factually in rejecting the self-defense claim.

This pre-Booker claim contests the findings of fact leading to the four-level enhancement under §

2K2.1(b)(5). The second claim is that Booker prohibits such factfinding and requires that the case

be remanded for re-sentencing. The government concedes that the District Court’s treatment of the

guidelines as mandatory violated the rule of Booker, but argues that there is not “plain error” in this

case because “the evidence is ‘overwhelming’ that Ryan possessed and used a firearm in connection

with another felony” and that, therefore, a “remand for re-sentencing is unnecessary.” The

government argues that Ryan has not carried his burden of showing that the Sixth Amendment error

establishes “prejudice” and hence “plain error.”

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United States v. Ryan

       In the first few days after the Supreme Court handed down the Booker opinion, two different

panels of our Court reached conflicting conclusions on the question of when the Court should

remand pending cases for re-sentencing once it is clear that a Sixth Amendment Booker violation

has occurred. The two panels placed different interpretations on the “plain error” standards

established by the Supreme Court in Johnson v. United States, 520 U.S. 625 (1997). In United

States v. Oliver, No. 03-2126, 2005 WL 233779 (6th Cir. Feb. 2, 2005), the Court concluded that

a case should be remanded if it is “arguable” that the defendant received a longer sentence than

would be the case if the sentencing court exercised the broader discretion that Booker requires. The

Oliver court said that “we would be usurping the discretionary power granted to the District Courts

in Booker if we were to assume that the District Court would have given [a defendant] the same

sentence post-Booker . . . .” On the other hand, in United States v. Bruce, 396 F.3d 697 (6th Cir.

2005), a different panel of our Court refused to remand for re-sentencing. It concluded that a

defendant must carry the burden of proving prejudice in order to show that the error seriously affects

the “integrity of the judicial proceedings” or affects “substantial rights.” If the invalid upward

adjustment was based on “uncontroverted” or “overwhelming” facts, the required showing would

be absent.

       Subsequent cases have followed the principles of the Oliver case rather than shifting the

burden of proof to the defendant, as in the Bruce case. See United States v. McDaniel, Nos. 03-

1940, 03-2073, 2005 WL 366899 (6th Cir. Feb. 17, 2005); United States v. Milan, Nos. 02-6245,

02-6302, 2005 WL 309934 (6th Cir. Feb. 10, 2005); United States v. Barnett, No. 04-5252, 2005

WL 357015 (6th Cir. Feb. 16, 2005). Moreover, § 3742(f)(1), Title 18, states: “If the Court of

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United States v. Ryan

Appeals determines that . . . the sentence was imposed in violation of law or imposed as a result of

an incorrect application of the Sentencing Guidelines, the Court shall remand the case for further

sentencing proceedings with such instructions as the Court considers appropriate” (emphasis added).

       Under our Court’s current precedents, the mandatory upward adjustment imposed by the

District Court was “plain error.” Accordingly, we reverse the sentence imposed pre-Booker and

remand for re-sentencing in light of the Booker opinion.




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