                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0211p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                             X
                                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                  No. 04-5016
               v.
                                                              ,
                                                               >
 HAMPTON POOLE,                                               -
                                     Defendant-Appellant. -
                                                             N
                               Appeal from the United States District Court
                            for the Western District of Tennessee at Memphis.
                           No. 02-20026—Samuel H. Mays, Jr., District Judge.
                                            Argued: March 18, 2005
                                     Decided and Filed: May 10, 2005
         Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Needum L. Germany, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Stephen P. Hall,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF:
April R. Goode, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Stephen P. Hall, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        HOOD, Chief District Judge. Hampton Poole (“Poole”) was indicted on January 29, 2002,
for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). A trial was held
on January 8-10, 2003, but a mistrial was declared because jurors could not reach a unanimous
verdict. A superseding indictment, charging Poole with possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g), possession of a firearm during the commission of a drug
crime, in violation of 18 U.S.C. § 924(c), and possession of cocaine base with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1), was handed down on February 18, 2003. A second trial was


         *
         The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky, sitting
by designation.


                                                          1
No. 04-5016           United States v. Poole                                                   Page 2


held on September 10-12, 2003, at the conclusion of which Poole was found guilty of all three
offenses. On December 17, 2003, Poole was sentenced to a total of 322 months of imprisonment.
       On appeal, Poole argues that the district court erred in denying his motion to suppress
evidence and in denying his motion to dismiss the superseding indictment. Further, Poole seeks
vacation of his sentence under United States v. Booker, 125 S. Ct. 738 (2005). For the reasons stated
below, we AFFIRM Poole’s conviction, but VACATE and REMAND for resentencing consistent
with the Supreme Court’s decision in United States v. Booker.
                        I. FACTUAL AND PROCEDURAL HISTORY
         On the morning of April 7, 2001, while responding to a disturbance call, Officer Larry Dyer
(“Dyer”) of the Memphis, Tennessee Police Department, spoke with a known female drug addict.
This female advised Dyer that the streets needed cleaning up and volunteered to show him some
locations of ongoing drug sales in the area. One such location was the residence located at 695
Pearce. Officer Dyer testified that the Department had received numerous complaints about drug
sales at the rear of this residence, and that he had received similar information from his co-workers.
Officer Dyer also testified that, by means of personal observations of the location, he knew a high
volume of known drug addicts were “in and out of there.” Dyer stated that neither he nor his patrol
partner shared their information concerning 695 Pearce with the cooperating female prior to her
pointing out the residence as a location where she had previously purchased narcotics.
        After obtaining information from the cooperating female regarding the procedure of her past
drug buys at 695 Pearce, and a description of the individual who “served” her the drugs, Dyer and
his patrol partner set up a controlled buy. The cooperating individual indicated that she would assist
the officers in making the purchase, but informed the officers that she was going to need some
money to do so. Officer Dyer provided his own money, in the form of a ten dollar bill, to the
cooperating individual for the buy. Before giving it to her, Officer Dyer recorded the serial number
of the bill in his notebook. The apparent understanding between the officers and the cooperating
witness was that she would follow the routine she had described regarding prior purchases of
narcotics from that residence and, in order to ensure her safety, the officers would treat her in the
same fashion as any other suspect.
        After dropping the cooperating female off a few blocks away from 695 Pearce, Officer Dyer
and his partner took their positions in an alleyway behind the rear boundary of the backyard. While
their presence was hidden by some shrubbery, Officer Dyer testified that the officers had nothing
obstructing their view and that they could clearly observe the rear of 695 Pearce. As planned, the
female entered the yard and approached the back door, which was standing open. The officers
observed Poole step out onto the back step and speak with the cooperating female. Dyer testified
that he was too far away from the conversation to hear what was said; however, he illustrated what
he observed:
       The female handed Mr. Poole one bill, which was my ten dollar bill, because that’s
       all she had on her. And he exchanged - - dropped something in this fashion, like
       pitch fingers, into her hand, indicative of one rock or a one rock sale into her hand
       in that manner.
        Based on the information that he possessed, combined with his training and experience with
such transactions, Officer Dyer testified that he believed he had witnessed a one rock crack cocaine
sale. As a result, Officer Dyer and his partner began to approach Poole in order to take him into
custody. Officer Dyer described his approach:
       Well, again, we just - - you know, I was trying to get to him as quickly as possible
       mainly initially, anyway, because of the, you know, crack cocaine and just really any
No. 04-5016           United States v. Poole                                                   Page 3


       drugs so easily disposed of and destroyed, that in an arrest situation like that,
       especially based on my experience, you’ve got to, you know, detain the individual
       quickly as possible because they can destroy the evidence and whatnot.
        Dyer testified that as he approached, in uniform with pistol drawn, he advised the Defendant,
“police, halt, stop.” According to Officer Dyer, upon seeing him coming, Poole immediately turned
to go into the house. When Poole turned, Officer Dyer saw a black pistol in Poole’s front waistband.
The pistol’s presence intensified the situation such that Officer Dyer increased his pace to a “full
run” and was “just feet behind [Poole].” Poole ran into the residence with Officer Dyer following
close behind. As Officer Dyer pursued Poole into a bedroom, Poole grabbed the pistol and jumped
onto a bed. Officer Dyer testified that he commanded Poole to “let me see his hands,” however,
Poole did not do so, and kept one hand underneath his body. After securing Poole, Officer Dyer
rolled him over and found the loaded pistol lying underneath him. Testimony established that,
during the encounter, there were approximately four other individuals present in the bedroom, along
with a number of people in an adjoining kitchen; everyone present was secured.
        Officer Dyer testified that while doing a protective sweep of the bedroom, he recovered crack
cocaine and razors from a plate located on top of a dresser. The ten dollar bill was recovered from
Poole’s front pocket, and the officers recovered a rock of crack cocaine from the cooperating female.
At this point, Officer Dyer and his partner cleared all the occupants from the house into the
backyard. Officer Dyer took Poole to a squad car where officers asked him to sign a consent to
search form; Poole signed. After the consent to search form was executed, the officers re-entered
the home and conducted a search, discovering an unlabeled bottle containing what was determined
to be Tylenol-3. There was no prescription for the Tylenol-3; however, Poole was not charged in
relation to it.
        At the hearing regarding Poole’s motion to suppress, and in addition to the above testimony
by Officer Dyer, Magistrate Judge Allen heard from the defendant’s brother, Joe Poole, and the
defendant’s friend, Andre Patton. The argument that Poole submitted to the magistrate judge in
support of his motion to suppress was that the police officers entered his home without a warrant,
permission, or lawful authority, seized him, and searched the home in violation of defendant’s
Fourth Amendment right to the privacy and security of his abode. Following the suppression
hearing, Magistrate Judge Allen, in his proposed findings of fact, proposed conclusion of law, and
recommended disposition, found that Officer Dyer had probable cause to arrest the defendant and
that Officer Dyer followed a reasonable course of action in effectuating that arrest. Specifically, the
magistrate judge found that exigent circumstances justified Dyer’s search of Poole for the pistol and
that, while Dyer did not have probable cause to search the top of the dresser, Poole’s voluntary
consent to search the premises would have inevitably led to the discovery of the drugs on the
dresser.
        After reviewing the defendant’s objections and the record as a whole, the district court
adopted all of Magistrate Judge Allen’s findings, with the exception of the finding that the officers
did not have probable cause to search the top of the dresser. In concluding that the search of the
dresser was justified, the district court held:
       Officer Dyer found himself in a potentially hostile situation in which he reasonably
       concluded and ultimately discovered that the defendant was armed and in which
       other weapons might easily be available. Thus, exigent circumstances continued to
       exist and the top of the dresser was a logical place to seek additional weapons.
Accordingly, by order dated October 31, 2002, the district court denied Poole’s motion to suppress
in its entirety.
No. 04-5016           United States v. Poole                                                   Page 4


        On January 8, 2003, Poole proceeded to trial. On the first day of trial, the defense orally
moved the court to preclude the government from offering any evidence about the crack cocaine
recovered by Officer Dyer. The court granted this oral motion. During the trial, the defense
objected to the government’s attempts to adduce testimony from Officer Dyer as to the reason for
his surveillance of 695 Pearce. The court sustained the objections, thereby limiting the
government’s efforts to lay a foundation for the officers’ actions at 695 Pearce. At the trial, defense
presented witnesses that disputed the fact that the bedroom where the pistol was found was Poole’s.
The defense attempted to show that Poole never went outside to sell crack, and that it was his brother
who was outside when the officers approached. Defense witnesses also indicated that the officers
did not find the gun under Poole. On January 10, 2003, after the court found the jury to be
deadlocked, the case was declared a mistrial. Both parties agreed to the mistrial. The court allowed
both sides to discuss the trial with the jury members.
        On February 18, 2003, a superseding indictment was returned against Poole. The additional
charges consisted of one count of possessing cocaine base with intent to distribute, in violation of
21 U.S.C. § 841(a)(1), and one count of possessing a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c).
        On March 18, 2003, Poole filed a motion to dismiss the superseding indictment for vindictive
prosecution. The court denied Poole’s motion to dismiss, specifically finding that there was “no
evidence of actual vindictiveness” by the government, and went on to hold that, based upon an
objective review of the facts, “no ‘realistic likelihood of vindictiveness’” was present.
       During a second trial in September 2003, Poole was convicted on all three counts and
sentenced to three hundred twenty-two (322) months of imprisonment. Poole filed a timely notice
of appeal.
                                  II. STANDARD OF REVIEW
        Factual findings supporting a district court’s ruling on a motion to suppress are upheld unless
clearly erroneous, but “[t]he court’s final determination as to the reasonableness of the search is a
question of law reviewed de novo.” United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003)
(upholding the district court’s denial of a motion to suppress evidence that was found during a
customs inspection). Where the district court has denied the motion to suppress, “the appellate court
must consider the evidence in the light most favorable to the government.” United States v. Erwin,
155 F.3d 818, 822 (6th Cir. 1998) (en banc decision upholding the district court’s denial of a motion
to suppress evidence that was found during a search of the defendant’s vehicle).
       The district court’s denial of a motion to dismiss based upon allegations of vindictive
prosecution is reviewed under an abuse of discretion standard. United States v. Suarez, 263 F.3d
468, 476 (6th Cir. 2001). The Court has, in the past, also cited the "clearly erroneous" standard in
evaluating a district court’s finding of no vindictiveness. See United States v. Sammons, 918 F.2d
592, 601 (6th Cir. 1990) ("defendant has not directed our attention to anything on the record that
would cause us to question the district court’s findings, much less find them clearly erroneous").
                                          III. ANALYSIS
A.     Motion to Suppress
        Poole claims that the district court erred in failing to suppress any and all evidence found by
the officers inside 695 Pearce as the incursion onto the curtilage of his home was in violation of the
Fourth Amendment. It does not appear, however, that the curtilage issue was raised in the district
court. Appellant’s suppression motion was based on the premise that the police officers entered his
home without a warrant, permission, or lawful authority, seized him, and searched the home, in
No. 04-5016           United States v. Poole                                                     Page 5


violation of his Fourth Amendment right to the privacy and security of his abode. In fact, a review
of Appellant’s motion to suppress, Appellant’s post-hearing memorandum in support of his motion
to suppress, and Appellant’s objections to the Report and Recommendation of the U.S. Magistrate
Judge regarding the suppression issue demonstrates that curtilage was never mentioned at the district
court level.
         As a general rule, this Court does not address on appeal issues that were not raised and ruled
upon in the district court, but may address such issues “in exceptional circumstances” or where
application of the rule would result in a “plain miscarriage of justice.” United States v. $100,375.00
in United States Currency, 70 F.3d 438, 441 (6th Cir. 1995); United States v. Pickett, 941 F.2d 411,
415 (6th Cir. 1991); see also, United States v. Wright, 343 F.3d 849, 867 (6th Cir. 2003), cert.
denied, 124 S. Ct. 2016 (2004). Upon review of the record, it is clear that no “exceptional
circumstances” exist. It is also clear that application of the general rule, in this instance, would not
result in a “plain miscarriage of justice.” Even if we were to consider the curtilage issue, the officers
here merely looked into Appellant’s back yard from their position in the public alley. No violation
of the Fourth Amendment occurred. See, e.g., California v. Ciraola, 476 U.S. 207, 213 (1986).
        Second, Poole asserts that the district court erred in holding that “any Fourth Amendment
violation was cured by the defendant signing the consent form following his arrest.” Appellant’s
Br. at 22. This, however, was not the district court’s holding. The district court did not accept the
magistrate’s finding that consent cured any Fourth Amendment violation; instead, it held, Officer
Dyer’s seizure of crack cocaine and razors in Poole’s house immediately following Poole’s arrest
was justified by the exigent circumstance of pursuing a feeling felon. This finding was proper.
Exigent circumstances justified Officer Dyer’s original warrantless entry into the house. After Dyer
had handcuffed Poole and secured the four other people in the room, his seizure of the crack cocaine
and razors found on the dresser near Poole was the product of a permissible search incident to arrest,
because the dresser would have been within Poole’s reach had he not been handcuffed. A search
incident to arrest may encompass the areas that would be within the defendant’s reach, even when
the defendant is restrained. See Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001). Further,
Dyer’s seizure of the crack cocaine from the top of the dresser arguably fell within the “plain view”
doctrine.
B.      Motion to Dismiss for Vindictive Prosecution
        Appellant claims that the district court erred in denying his motion to dismiss the superseding
indictment as the additional charges - possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1), and carrying a firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) - are the result of vindictive prosecution and therefore violate the
Due Process Clause. Both of these charges grew out of the same occurrence as the original offense
and could have been brought in the initial indictment. The charges, however, were brought
following a mistrial on the initial indictment.
        It is undeniable that due process prohibits an individual from being punished for exercising
a protected statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372 (1982).
However, as the United States Supreme Court has made clear, “the Due Process Clause is not
offended by all possibilities of increased punishment...but only by those that pose a realistic
likelihood of ‘vindictiveness.’” Blackledge v. Perry, 417 U.S. 21, 27 (1974). There are two
approaches to showing prosecutorial vindictiveness: A defendant can show "actual vindictiveness,"
by producing "objective evidence that a prosecutor acted in order to punish the defendant for
standing on his legal rights," or the Court can find a presumption of vindictiveness by applying the
“realistic likelihood of vindictiveness," standard which focuses on the prosecutor’s "stake" in
deterring the exercise of a protected right and the unreasonableness of his actions. United States v.
No. 04-5016           United States v. Poole                                                    Page 6


Dupree, 323 F.3d 480, 489 (6th Cir. 2003), citing Bragan v. Poindexter, 249 F.3d 476, 481-82 (6th
Cir. 2001).
        While the United States Supreme Court has addressed the issue of prosecutorial
vindictiveness, it has not examined the factual scenario present in this case, i.e., when the
defendant’s allegation of prosecutorial vindictiveness arises out of a superseding indictment sought
after an initial mistrial. Of the four Supreme Court cases dealing with prosecutorial vindictiveness
and relevant to our inquiry, two focus on vindictiveness as it applies to the enhancement of penalties
and charges after a successful appeal. North Carolina v. Pearce, 395 U.S. 711 (1969), overruled
on other grounds by Alabama v. Smith, 490 U.S. 794 (1989), and Blackledge v. Perry, 417 U.S. 21
(1974). The other two address prosecutorial enhancement of charges in a pre-trial setting.
Bordenkircher v. Hayes, 434 U.S. 357 (1978), and United States v. Goodwin, 457 U.S. 368 (1982).
        In North Carolina v. Pearce, the Supreme Court held that a presumption of vindictiveness
arises when a state trial judge increases the punishment imposed at the first trial after the defendant
is re-convicted of the same offense following a successful appeal and new trial. Pearce, 395 U.S.
at 723-725. The Court stated that this presumption may be overcome only by objective information
in the record justifying the increased sentence. Id. at 726.
        Years later, the Court applied the reasoning of Pearce to confront the problem found in
Blackledge v. Perry. In Blackledge, a prison inmate was charged and convicted in a state district
court of a misdemeanor offense and, after he exercised his right to appeal and obtain a trial de novo
in the superior court, the prosecutor obtained an indictment for a felony offense based on the same
conduct. Blackledge v. Perry, 417 U.S. 21 (1974). The Supreme Court held that this conduct
violated due process and explained,
       A prosecutor clearly has a considerable stake in discouraging convicted
       misdemeanants from appealing and thus obtaining a trial de novo in the Superior
       Court, since such an appeal will clearly require increased expenditures of
       prosecutorial resources before the defendant’s conviction becomes final, and may
       even result in a formerly convicted defendant’s going free. And, if the prosecutor has
       the means readily at hand to discourage such appeals -- by “upping the ante” through
       a felony indictment whenever a convicted misdemeanant pursues his statutory
       appellate remedy -- the State can insure that only the most hardy defendants will
       brave the hazards of a de novo trial.
Id., at 27-28. Thus, “[b]oth Pearce and Blackledge involved the defendant’s exercise of a procedural
right that caused a complete retrial after he had been once tried and convicted.” United States v.
Goodwin, 457 U.S. 368, 376 (1982).
        In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court considered an allegation
of vindictiveness arising in a pretrial setting. During plea negotiations, the state prosecutor in
Bordenkircher threatened the defendant that if he refused to plead guilty to forgery, the offense with
which he was originally charged, the prosecutor would bring habitual criminal offender charges as
well. Bordenkircher, 434 U.S. at 358-359. When the defendant chose not to accept the plea and
instead go forth with trial, the prosecutor made good on his threat. Id. The defendant was convicted
of the more severe charges. Id. In finding no due process violation, the Supreme Court stated that,
       the due process violation in Pearce and Blackledge “lay not in the possibility that a
       defendant might be deterred from the exercise of a legal right ... but rather in the
       danger that the State might be retaliating against the accused for lawfully attacking
       his conviction.”
No. 04-5016           United States v. Poole                                                      Page 7


Goodwin, 457 U.S. at 378, quoting Bordenkircher, 434 U.S. at 363. In declining to apply a
presumption of vindictiveness, the Bordenkircher Court stated that the element of punishment,
present in both Pearce and Blackledge, was not present in the “give-and-take” of plea negotiation,
so long as the accused is “free to accept or reject the prosecution’s offer.” Bordenkircher, 434 U.S.
at 363.
       Similarly, in United States v. Goodwin, 457 U.S. 368 (1982), the Court looked at a
prosecutor’s pretrial decision to modify charges against the defendant. In Goodwin, however, there
was no evidence that could give rise to an allegation of actual vindictiveness; there was no
prosecutorial threat present that could influence defendant’s conduct. The defendant in Goodwin
claimed that an impermissible appearance of retaliation arose when the prosecutor obtained a four-
count felony indictment after the defendant requested a jury trial on misdemeanor charges arising
from the same incident. Goodwin, 457 U.S. at 370-371. The Supreme Court held that no due
process violation was established by the facts, explaining,
       [t]he possibility that a prosecutor would respond to a defendant’s pretrial demand for
       a jury trial by bringing charges not in the public interest that could be explained only
       as a penalty imposed on the defendant is so unlikely that a presumption of
       vindictiveness certainly is not warranted.
Id. at 384 (emphasis in original).
       There has been no allegation of actual vindictiveness in the case sub judice; thus, the proper
standard is whether there exists a “‘realistic likelihood of vindictiveness.’” United States v.
Andrews, 633 F.2d 449, 453 (6th Cir. 1980). In assessing the current fact situation to see if it meets
the above-stated standard, the Court must weigh two factors: (1) the prosecutor’s “stake” in
preventing assertion of the protected right and (2) the reasonableness of the prosecutor’s actions.
Andrews, 633 F.2d at 454. The Court looks to the four cases discussed above for guidance.
        In this case, the government sought the superseding indictment after the first trial ended in
mistrial due to the jurors’ inability to reach a unanimous verdict. In Goodwin, the Court reasoned
that while preparing for trial a prosecutor might uncover additional information that suggests a basis
for further prosecution. Goodwin, 457 U.S. at 381. However, once trial has begun - and certainly
after conviction - it is more likely that the government has uncovered and assessed all the
information available, and has determined the extent to which the defendant should be prosecuted.
Id. This case falls somewhere in between; while the timing certainly does not compel the conclusion
that a change in the indictment was a product of vindictiveness, it does make the possibility more
likely than would a change at a pretrial stage.
          The Court also distinguished Goodwin from Blackledge and Pearce on the basis of
duplicative trials. Id. at 382-383. The Court reasoned that the prosecution’s “stake” is greater when
it is forced to endure a complete new trial, or “do over what it thought it had already done correctly.”
Id. at 383. Such would seem to be the case here. The government, however, argues that it did not
object to the mistrial and, due to the mistrial, it was given the opportunity to reassess its manner of
presenting evidence. Thus, it seems not only that the prosecution welcomed the new trial, it also
realized that there was a better way to conduct it. It is difficult to see how this would prompt a
prosecutor to act vindictively towards a defendant. The government’s response to the mistrial -
seeking a superseding indictment - was reasonable under the circumstances presented here.
Accordingly, the facts presented do not establish a due process violation as they pose no “realistic
likelihood of vindictiveness.”
       Finally, although we conclude that no presumption of vindictiveness arose here, even if the
Court assumed Poole made a prima facie showing of vindictive prosecution, the government has
No. 04-5016           United States v. Poole                                                   Page 8


adequately rebutted any presumption of vindictiveness. In determining whether the government has
rebutted a presumption of vindictiveness the relevant inquiry is whether there exists objective
information in the record to justify the increased sentence or additional charges. Goodwin, 457 U.S.
at 374.
        Here, the government fully explains the increased charge by pointing to objective
information relating to the mistrial. Immediately prior to jury selection, the defendant moved the
court in limine to preclude the government from offering any evidence at trial about the alleged
crack cocaine sale or the money recovered from Officer Dyer. In granting this motion, the Court
severely inhibited the prosecution’s production of evidence. This restriction allowed the defendant
to attempt to discredit Officer Dyer’s presence at 695 Pearce. It also enabled the defense to theorize
that the defendant was not the one on the back steps and, therefore, he was not the owner of the
seized firearm. The government stated that, based on post-trial jury discussion, it appeared that
some jury members were confused and distracted by the lack of development in testimony regarding
the entirety of the activities observed by the officers. As the district court stated, “reindictment
relevant to the underlying drug trafficking offense would conceivably permit the introduction of
evidence in connection with the drug transaction which was lacking in the initial trial.”
        Accordingly, although the Court finds that the Appellant failed to make a prima facie
showing of vindictive prosecution, it is clear that the government has adequately rebutted any
presumption of vindictiveness by showing that its decision to re-indict was not motivated by a
vindictive desire to punish the defendant for exercising his right to trial, but rather a re-evaluation
of the case, in light of all the evidence elicited during trial, subsequent jury discussions, and
evidentiary rules affecting the admissibility of relevant evidence.
C.     Booker Issue
        In August 2004, two months after Blakely v. Washington, 124 S.Ct. 2531 (2004) was
decided, Poole wrote a letter to the clerk’s office requesting to preserve on appeal any Blakely issues
relating to the sentencing enhancements he received. Poole’s letter was followed by a Fed. R. App.
P. 28(j) letter from Poole’s appellate attorney, Federal Public Defender, Stephen B. Shankman.
Shankman’s letter proposed that the district court was not permitted to make the factual findings
necessary to enhance Poole’s sentence and, given that the district court sentenced Poole under a
mandatory scheme, this Court should remand for resentencing under Booker.
       From the Presentence Investigation Report and the Addendum thereto, it appears that the
recommended sentence enhancements were based solely on Poole’s criminal history. Booker’s
holding, that the Sixth Amendment bars mandatory enhancements based on judicial fact-finding,
does not apply to the “fact of a prior conviction.” United States v. Booker, 125 S.Ct. 738, 746
(2005). This Circuit has held that this also means that criminal history enhancements do not
implicate the Sixth Amendment. United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005).
Accordingly, there was no Sixth Amendment violation in the present case; the district court was
permitted to make the factual findings necessary to enhance Poole’s sentence.
        Poole, however, was sentenced under a mandatory sentencing scheme. Barnett held that
there is a presumption, under the plain error analysis, that substantial rights are affected by a
sentence imposed under an impermissible mandatory sentencing scheme, even where the defendant
is sentenced in the middle of the Guidelines range. Barnett, 398 F.3d at 525-531. Here, because
Poole was sentenced under a mandatory sentencing scheme, and because the trial record does not
contain “clear and specific evidence” that the sentencing court would not have sentenced Poole to
a lower sentence under an advisory sentencing scheme, Poole’s case appears to fall within Barnett.
Thus, Poole enjoys a presumption that the mandatory nature of the Guidelines affected his sentence.
No. 04-5016         United States v. Poole                                             Page 9


Accordingly, we vacate Poole’s sentence and remand for resentencing consistent with Booker and
the advisory Guidelines system.
                                    IV. CONCLUSION
       For the reasons stated herein, we AFFIRM Poole’s conviction, but VACATE Poole’s
sentence and REMAND for sentencing consistent with the Supreme Court’s decision in Booker.
