                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0831n.06
                            Filed: December 10, 2007

                                          Nos. 06-6485/6487

                            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
BRYANT EDWARDS,                                       )    WESTERN DISTRICT OF TENNESSEE
                                                      )
        Defendant-Appellant.                          )



        Before: DAUGHTREY and COOK, Circuit Judges; and VINSON,* District Judge.


                PER CURIAM. Defendant Bryant Edwards appeals the 121-month prison

sentence imposed following his guilty pleas to charges of conspiring to manufacture

methamphetamine and conspiring to possess with intent to distribute more than 50 grams

of methamphetamine.           Edwards does not now challenge the factual bases for his

convictions or his sentence.             Instead, he argues only that the presumption of

reasonableness accorded by appellate courts to sentences within the applicable ranges

of the United States Sentencing Guidelines, in conjunction with the ability of judges – rather

than juries – to determine facts necessary to increase those sentences, violates the jury

trial guarantee of the Sixth Amendment to the United States Constitution. Bound, as we



        *
         The Hon. C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting
by designation.
Nos. 06-6485/6487
United States v. Edwards

are, by precedent from this court and by the recent holdings of Rita v. United States, 127

S.Ct. 2456 (2007), we disagree and thus affirm.


        Following Edwards’s guilty pleas to the two conspiracy charges, the district judge

initially determined that the defendant’s guidelines offense level should be 28, based solely

upon the quantity of illegal drugs involved in the crimes. The court then added six more

levels to its calculation after finding, without the intervention of a jury, that one of the crimes

both involved the manufacture of methamphetamine and “created a substantial risk of

harm to the life of a minor or an incompetent.”                U .S . SENTENCING GUIDELINES MANUAL


§ 2D 1.1(b)(8)(C) (2006).1 Even after granting Edwards a three-level downward adjustment

for acceptance of responsibility, the district court concluded that the defendant’s guidelines

sentencing range as a criminal history category II, offense level 31 offender would be 121-

151 months. The district judge also carefully considered the other sentencing factors listed

in 18 U.S.C. § 3553(a), but ultimately determined that a 121-month guidelines sentence

would indeed be appropriate in light of the statutory considerations.


        On appeal, Edwards readily “concedes that the current law in this Circuit is that the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005)[,] did not

eliminate judicial fact-finding by district court judges in determining whether sentencing



        1
         The district judge, the governm ent, and the defendant’s counsel all m istakenly refer to
§ 2D1.1(b)(6)(C) when discussing this offense level increase. Section 2D1.1 of the sentencing guidelines was
am ended, however, effective Novem ber 1, 2006, eight days prior to Edwards’s sentencing hearing. The
applicable language of § 2D1.1(b)(6)(C) of the 2005 version of the guidelines was renum bered and included
in § 2D1.1(b)(8)(C) of the 2006 version that was in effect on the date of the defendant’s sentencing.

                                                   -2-
Nos. 06-6485/6487
United States v. Edwards

guideline enhancements are appropriate. See, e.g.[,] United States v. Stone, 432 F.3d

651, 654-55 (6th Cir. 2005)[, cert. denied, 127 S.Ct. 129 (2006)].” As recognized by the

defendant, however, such judicial fact-finding, an apparent violation of the Sixth

Amendment principles elucidated in Blakely v. Washington, 542 U.S. 296, 303-04 (2004),

is permissible only because Booker mandates that any guidelines sentencing range

resulting from the fact-finding be considered advisory only. See Booker, 543 U.S. at 233.


       According to Edwards, our recognition of a rebuttable presumption of

reasonableness of any within-guidelines sentence, see, e.g., United States v. Davis, 458

F.3d 491, 496 (6th Cir.), petition for cert. filed, (U.S. Nov. 13, 2006) (No. 06-7784), has

once again “resulted in a de facto mandatory sentencing scheme.”            Consequently,

contends the defendant, judicial fact-finding conducted without the safeguards of a jury and

the beyond-a-reasonable-doubt evidentiary standard would, as under pre-Booker

mandatory guidelines sentencing, eviscerate the protections of the Sixth Amendment.


       Unfortunately for Edwards, an identical argument was rejected by the Supreme

Court in Rita. In that decision, the Court admitted that “Rita may be correct that the

presumption [of reasonableness] will encourage sentencing judges to impose Guidelines

sentences.” Rita, 127 S.Ct. at 2467 (emphasis added). Nevertheless, “[a] nonbinding

appellate presumption that a Guidelines sentence is reasonable does not require the

sentencing judge to impose that sentence.” Id. at 2466 (emphasis in original). Thus,

utilization by an appellate court of the presumption of reasonableness does not reinstate


                                           -3-
Nos. 06-6485/6487
United States v. Edwards

a mandatory guidelines sentencing scheme and does not violate Sixth Amendment

principles.


       The Supreme Court’s decision in Rita forecloses any opportunity by this court to

consider further the only argument advanced by Edwards on this appeal. We therefore

AFFIRM the judgment of the district court.




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