                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0357n.06
                             Filed: June 20, 2008

                                      Nos. 06-6158/06-6387

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )
                                                )
TROY KIRBY                                      )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
and                                             )    EASTERN DISTRICT OF KENTUCKY
                                                )
JOHNNY LEE BULLOCK,                             )
                                                )
       Defendants-Appellants.                   )
                                                )
                                                )

Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. In 2002, a jury convicted Troy Kirby and

Johnny Lee Bullock of a number of charges involving the manufacture and distribution of

methamphetamine. Kirby was also found guilty of two firearms-possession charges. This court

affirmed Kirby’s and Bullock’s sentences in all respects but remanded for resentencing in light of

United States v. Booker, 543 U.S. 220 (2005). Following resentencing, Kirby and Bullock challenge

their sentences once again, and Kirby presents an ineffective assistance of counsel claim. For the

following reasons, we affirm the sentences of the district court and decline to review Kirby’s

ineffective assistance of counsel claim.


                                                1
                                                 I.

       In 2001, a grand jury indicted Troy Kirby and Johnny Lee Bullock, along with eight other

individuals, on a number of charges stemming from a conspiracy to manufacture and distribute

methamphetamine. Kirby and Bullock were tried jointly in early 2002.

       The jury found Kirby guilty of the following offenses: (1) conspiracy to manufacture 50

grams or more of methamphetamine or 500 grams or more of a mixture containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 846; (2) conspiracy to possess with intent

to distribute 50 grams or more of methamphetamine or 500 grams or more of a mixture containing

a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846; (3) two counts of aiding

and abetting another in an attempt to manufacture 50 grams or more of methamphetamine or 500

grams or more of a mixture containing a detectable amount of methamphetamine, in violation of 21

U.S.C. § 846; (4) being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and

(5) possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). Bullock was found

guilty of conspiracy to possess with intent to distribute 5 to 50 grams of methamphetamine or 50 to

500 grams of a mixture containing a detectable amount of methamphetamine, in violation of 21

U.S.C. § 846, as well as three counts of possession with intent to distribute 5 to 50 grams of

methamphetamine or 50 to 500 grams of a mixture containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

       Kirby’s Presentence Investigation Report (“PSR”) recommended a Sentencing Guidelines

range of 360 months to life imprisonment. At Kirby’s first sentencing hearing, the district court

sentenced Kirby to 360 months imprisonment on the charges related to methamphetamine


                                                 2
manufacture and distribution and 120 months imprisonment on the firearms-possession charges. The

district court determined that the sentences should run concurrently, resulting in a term of 360

months imprisonment. This court affirmed the district court in all respects but remanded Kirby’s

case for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v.

Bullock, 130 F. App’x 706, 727-28 (6th Cir. 2005). Upon remand, Kirby objected to, inter alia, the

PSR’s drug quantity calculation and its recommendation of an enhancement for Kirby’s role as a

leader and organizer; Kirby argued that the facts necessary to support the calculation and the

enhancement were not found by the jury beyond a reasonable doubt. At Kirby’s resentencing

hearing, the district court overruled Kirby’s objections to the PSR and found, by a preponderance

of the evidence, that Kirby was accountable for 759.8 grams of actual methamphetamine and that

he was a leader and organizer of the methamphetamine conspiracy. After a lengthy articulation of

the 18 U.S.C. § 3553(a) factors, the district court imposed the same sentence as it had at Kirby’s first

sentencing hearing.

        Bullock’s PSR recommended a Guidelines range of 168 to 210 months imprisonment, based

on a total offense level of 32 and a criminal history category of IV. Prior to his first sentencing

hearing, Bullock lodged an objection to, inter alia, the amount of methamphetamine for which he

was deemed accountable; Bullock argued that this amount had not been found by a jury. At the first

sentencing hearing, the district court overruled this objection and found that Bullock was responsible

for 795.6 grams to 1.30 kilograms of a methamphetamine mixture. Granting the government’s

motion for an upward departure based on an under-representation of Bullock’s criminal history, the

district court placed Bullock in criminal history category V. Bullock’s resulting Guidelines range

was 188 to 235 months imprisonment, and the district court sentenced Bullock to the high end of the


                                                   3
range—235 months imprisonment. This court affirmed Bullock’s sentence and conviction in all

respects but remanded for resentencing in light of United States v. Booker. On remand, the district

court examined the 18 U.S.C. § 3553(a) factors and sentenced Bullock at the low end of the

Guidelines range—188 months imprisonment.

       Kirby and Bullock each filed a timely notice of appeal.

                                                  II.

       Citing United States v. Booker, 543 U.S. 220 (2005), Kirby argues that his Fifth and Sixth

Amendment rights were violated when the district court sentenced him on the basis of facts not

found by the jury beyond a reasonable doubt. In particular, Kirby takes issue with the district court’s

decision to hold him responsible for 759.8 grams of actual methamphetamine, as well as the district

court’s determination that Kirby was a leader and organizer of the criminal activity. This court

reviews de novo constitutional challenges to a sentence. United States v. Gates, 461 F.3d 703, 708

(6th Cir. 2006).

       Kirby’s arguments are without merit. While Booker rendered the Sentencing Guidelines

mandatory, it did not eliminate judicial fact-finding. United States v. Kosinski, 480 F.3d 769, 776

(6th Cir. 2007). “[T]his court and others have repeatedly held since Booker that district judges can

find the facts necessary to calculate the appropriate Guidelines range using the same

preponderance-of-the-evidence standard that governed prior to Booker.” United States v. Ferguson,

456 F.3d 660, 665 (6th Cir. 2006); see also United States v. Cook, 453 F.3d 775, 777 (6th Cir. 2006)

(noting that the now-advisory nature of the Guidelines permits a district court to “rely on

extra-verdict facts or on those other than which the defendant has specifically admitted when it

calculates [the defendant’s] sentence.”) At Kirby’s resentencing hearing, the district court properly


                                                  4
found, by a preponderance of the evidence, that Kirby should be held accountable for 759.8 grams

of actual methamphetamine and that Kirby was a leader and organizer of the methamphetamine

conspiracy. The district court also acknowledged the advisory nature of the Guidelines and

sentenced Kirby only after a thorough examination of the 18 U.S.C. § 3553(a) factors. Accordingly,

the district court committed no Fifth or Sixth Amendment violation in sentencing Kirby. See Gates,

461 F.3d at 708 (holding judicial fact-finding post-Booker violates neither Fifth Amendment due

process rights nor the Sixth Amendment right to trial by jury).1

       In a pro se supplemental brief, Kirby further argues that Cunningham v. California, 127 S.

Ct. 856 (2007), has overruled this court’s precedent permitting the use of judicial fact-finding in

sentencing post-Booker. However, Kirby’s reliance on Cunningham is misplaced. In Cunningham,

the Supreme Court invalidated a mandatory state sentencing system, which, the Court noted,

resembled the pre-Booker federal sentencing regime. Cunningham, 127 S. Ct. at 866 n.10. In fact,

the Court emphasized that, in Booker, it unanimously agreed “that the Federal Guidelines would not

implicate the Sixth Amendment were they advisory.” Cunningham, 127 S. Ct. at 866. As this court

has noted, “Cunningham makes clear that an advisory system of guidelines and a preponderance

standard do not implicate the Sixth Amendment.” United States v. Schoeninger, No. 06-2218, 2007

WL 3390952, at *4 (6th Cir. Nov. 14, 2007).

       To the extent that Kirby takes issue with the district court’s methamphetamine purity

determination, this argument has been waived. The district court found that the 759.8 grams of



       1
        Kirby’s sentence also presents no problem under Apprendi v. New Jersey, 530 U.S. 466
(2000), as it does not exceed the statutory maximum—life imprisonment. See 21 U.S.C. §
841(b)(1)(A)(viii) (stating statutory maximum for offenses involving 50 grams or more of
methamphetamine); see also United States v. Flores, 477 F.3d 431, 438 (6th Cir. 2007).

                                                 5
methamphetamine attributable to Kirby consisted of 100% pure methamphetamine. Kirby, however,

claims that a 50% pseudoephedrine-to-methamphetamine conversion ratio is more appropriate than

a 100% conversion ratio. Kirby did not raise this argument in his initial appeal to this court, and,

thus, this argument has been waived. See United States v. Keller, 498 F.3d 316, 328 (6th Cir. 2007);

United States v. Mitchell, 232 F. App’x 513, 517 (6th Cir. 2007).

                                                  III.

        Kirby briefly contends that his first court-appointed counsel performed ineffectively during

his 2002 trial. Specifically, Kirby notes that his trial counsel failed to raise a claim of variance, did

not move for a multiple-conspiracy instruction, and failed to raise the issue of duplicitous indictment.

        This court generally will not review claims of ineffective assistance of counsel on direct

appeal. United States v. Meeker, 411 F.3d 736, 748 (6th Cir. 2005). Such claims are best raised on

collateral review under 28 U.S.C. § 2255 in order to give the parties an opportunity to develop an

adequate record. United States v. Caver, 470 F.3d 220, 250 (6th Cir. 2006); Meeker, 411 F.3d at

748. Although this court may review claims of ineffective assistance of counsel on direct appeal in

rare cases where “there was no legitimate, strategic reason to fail to [raise the claims] under the

circumstances and [] the record is sufficient to allow review of defense counsel’s conduct,” Kirby’s

case does not present such a scenario. Meeker, 411 F.3d at 748-49 (internal quotation marks

omitted). “Given the fact-specific nature of the claims and the absence of a record directed at

whether counsel’s performance was deficient,” we decline to review this issue. See United States

v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005).

                                                  IV.




                                                   6
       Bullock contends that the district court misinterpreted the nature of the mandate issued by

this court in remanding his case for resentencing under Booker. The district court, Bullock claims,

erred in failing to reconsider its factual findings regarding the amount of methamphetamine

attributable to him. This court reviews the scope of a remand de novo. United States v. Orlando, 363

F.3d 596, 600 (6th Cir. 2004).

       We conclude that the district court did not err, as Bullock’s argument was precluded by the

law-of-the-case doctrine. See United States v. Robinson, 503 F.3d 522, 526 (6th Cir. 2007).

“Determinations by a Court of Appeals become the law of the case and are binding on both the

district court on remand and the Court of Appeals upon subsequent appeal.” United States v.

Haynes, 468 F.3d 422, 426 (6th Cir. 2006). Upon resentencing, Bullock objected that the drug

quantity calculation in the PSR, which was greater than the drug quantity found by the jury, was

incorrect. Bullock claimed that his offense level should have been 28, rather than 32, as an offense

level of 28 would take into account only the drug quantity found by the jury. However, Bullock

previously raised this judicial fact-finding argument during his first sentencing hearing and in his

first appeal. This court affirmed the district court’s factual finding of the drug quantity attributable

to Bullock and merely issued a limited remand for reconsideration of Bullock’s sentence in light of

Booker. Upon resentencing, the district court properly refused to reconsider Bullock’s judicial fact-

finding argument regarding the drug quantity calculation. Accordingly, we conclude that the district

court’s assessment of the limited scope of the Booker remand was correct. See United States v.

Muhammad, 203 F. App’x 751, 752-53 (8th Cir. 2006) (finding no error where, on a limited Booker

remand, district court refused to revisit defendants’ fact-based challenges to drug quantity

determinations).


                                                   7
       In any case, the district court explained that, if it were to reconsider the issue, it would

reaffirm its factual findings regarding the drug quantity attributable to Bullock and Bullock’s

resulting Guidelines range. Indeed, to the extent that Bullock’s objection was directed toward the

use of judicial fact-finding in sentencing, his argument was meritless. It is not improper for a judge

to calculate a defendant’s Guidelines range on the basis of facts found by a preponderance of the

evidence, so long as the judge treats the Sentencing Guidelines as advisory rather than mandatory.2

See Ferguson, 456 F.3d at 665; Cook, 453 F.3d at 777. At the resentencing hearing, the district court

considered the Guidelines to be advisory and sentenced Bullock under this advisory regime, thus

correcting its initial Sixth Amendment error. We therefore conclude that the district court did not

err in resentencing Bullock.

                                                  V.

       Bullock further argues that his sentence was unreasonable because the district court placed

undue emphasis on only one of the 18 U.S.C. § 3553(a) factors in resentencing him. Following

Booker, appellate courts review a district court’s sentencing determination for reasonableness, under

a deferential abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 594 (2007); see also

Rita, 127 S. Ct. at 2465. As the Supreme Court has noted, reasonableness review has two




       2
         In a pro se motion, Bullock contends that Rita v. United States, 127 S. Ct. 2456 (2007), and
Cunningham v. California, 127 S. Ct. 856 (2007), preclude the use of judicial fact-finding to
calculate a defendant’s Guidelines range. As noted above, Cunningham does not prohibit judicial
fact-finding under an advisory sentencing regime. See Schoeninger, No. 06-2218, 2007 WL
3390952, at *4. Similarly, Rita notes that “[t]his Court’s Sixth Amendment cases do not
automatically forbid a sentencing court to take account of factual matters not determined by a jury
and to increase the sentence in consequence.” 127 S. Ct. at 2465-66. Bullock’s pro se motion is
thus without merit.

                                                  8
components: procedural and substantive. Gall, 128 S. Ct. at 597; see also United States v. Bolds,

511 F.3d 568, 578 (6th Cir. 2007).

       A sentence is procedurally unreasonable if a district court commits a significant procedural

error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 128 S. Ct. at

597. In conducting a review of the substantive reasonableness of a sentence, an appellate court may

apply a presumption of reasonableness to sentences within the Guidelines range. Id.; Rita, 127 S.

Ct. at 2462. This court has held that a sentence may be substantively unreasonable if “the district

court selected the sentence arbitrarily, based the sentence on impermissible factors, failed to consider

pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.”

United States v. Smith, 510 F.3d 603, 609 (6th Cir. 2007) (citing United States v. Brown, 501 F.3d

722, 724 (6th Cir. 2007)).

       Bullock’s sentence is neither procedurally nor substantively unreasonable. The district court

sentenced Bullock within the correctly calculated Guidelines range, 188 to 235 months, and his

sentence is thus afforded a presumption of reasonableness. Moreover, the district court thoroughly

examined the factors enumerated in 18 U.S.C. § 3553(a) in imposing a sentence “sufficient but not

greater than necessary, to comply with the purposes” of sentencing set forth in the statute. Contrary

to Bullock’s assertion, the district court did not focus only on the Guidelines range, thus giving an

unreasonable amount of weight to only one § 3553(a) factor. Rather, the district court carefully

considered a number of the § 3553(a) factors. With respect to the nature of the offense, the court

noted that Bullock was one of the “main distributors” in the methamphetamine conspiracy. The


                                                   9
district court further explained that the crime was “very, very serious.” The court noted the need to

rehabilitate Bullock and recommended a 500-hour drug education program. The court also

acknowledged the need for the sentence to promote respect for the law, to protect the public, and to

afford adequate deterrence. The court concluded that “all of those factors” indicated that a sentence

of 188 months, the low end of the Guidelines range, was “sufficient but not greater than necessary.”

In light of this record, we conclude that the district court did not abuse its discretion in imposing

Bullock’s sentence. “The fact that the district court did not give [Bullock] the exact sentence he

sought is not a cognizable basis to appeal, particularly where the district court followed the mandate

of section 3553(a) in all relevant respects.” United States v. Jackson, 466 F.3d 537, 540 (6th Cir.

2006).

                                                 VI.

         For the foregoing reasons, we affirm Kirby’s and Bullock’s sentences and decline to review

Kirby’s ineffective assistance of counsel claim.




                                                   10
