                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                          File Name: 05a0175p.06

                      UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                                      X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 03-6239
         v.
                                                       ,
                                                        >
 MATTHEW J. JONES,                                     -
                             Defendant-Appellant. -
                                                     N
                       Appeal from the United States District Court
                   for the Eastern District of Tennessee at Winchester.
                   No. 02-00052—R. Allan Edgar, Chief District Judge.
                                       Argued: March 11, 2005
                                 Decided and Filed: April 15, 2005
             Before: MARTIN and GILMAN, Circuit Judges; COHN, District Judge.*
                                          _________________
                                               COUNSEL
ARGUED: Leslie A. Cory, LESLIE A. CORY, ATTORNEY AT LAW, Chattanooga, Tennessee,
for Appellant. Gregg L. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
Tennessee, for Appellee. ON BRIEF: Leslie A. Cory, LESLIE A. CORY, ATTORNEY AT LAW,
Chattanooga, Tennessee, for Appellant. Christopher D. Poole, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
                                          _________________
                                              OPINION
                                          _________________
       RONALD LEE GILMAN, Circuit Judge. Defendant Matthew J. Jones was charged with one
count of conspiracy to manufacture methamphetamine and one count of possessing equipment that
could be used in its manufacture. Jones was tried by a jury, which convicted him on both counts.
The district court then imposed concurrent sentences, the longest of which was 262 months of
imprisonment. Jones now appeals his conviction and sentence. For the reasons set forth below, we
AFFIRM the defendant’s conviction, but REMAND the case for resentencing in accordance with
United States v. Booker, 125 S. Ct. 738 (2005).



        *
        The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting
by designation.

                                                     1
No. 03-6239           United States v. Jones                                                   Page 2


                                        I. BACKGROUND
A.     Factual background
         In response to an emergency call about suspected drug manufacturing made by a concerned
neighbor of Stanley Bradley in March of 2002, Deputy Kevin Murphy, an officer with the Warren
County Sheriff’s Department, stopped by Bradley’s house to investigate. When he approached the
front door and knocked, Deputy Murphy detected a smell that he associated with the production of
methamphetamine. He also noticed that Stuart Whitman, an off-duty police officer who lived in the
neighborhood, was in his yard trying out a new line on his fishing rod. Deputy Murphy called
Officer Whitman over and asked him to keep an eye on the back of Bradley’s house to see if anyone
tried to exit surreptitiously. The officers monitored the situation for approximately 10 minutes, after
which Officer Whitman saw Jones exit through the rear garage door. Officer Whitman called to
Deputy Murphy, who went around the back of the house and immediately yelled at Jones to stop and
put his hands up.
        When Jones held up his hands, Deputy Murphy noticed that they were stained with iodine.
This, in Deputy Murphy’s opinion, was a sign that Jones had recently been involved in the
manufacture of methamphetamine. Deputy Murphy handcuffed Jones and frisked him for weapons.
None were found. The men then walked around to the front of the house, whereupon Jones
consented to a more thorough search of his person. This search revealed that Jones had several
coffee filters in his pants pockets. His suspicions heightened, Deputy Murphy entered the house
with Bradley’s consent and found numerous items associated with the manufacture of
methamphetamine, including 182.5 grams of ephedrine and a jar containing iodine crystals.
B.     Procedural background
        Jones was subsequently charged with conspiring to manufacture methamphetamine (Count
One), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and with possessing equipment
that could be used in the manufacture of methamphetamine (Count Three), in violation of 21 U.S.C.
§§ 843(a)(6) and 843(d)(2). At trial, the government called Cecil Swoveland as a witness.
Swoveland, a longtime acquaintance of Jones, testified that Jones had taught him to how to make
methamphetamine in 1999, and that he had seen Jones manufacture methamphetamine several times.
        Jones was subsequently found guilty by the jury on both counts. The government, prior to
the jury’s verdict, had filed a notice of intent to use a state-court conviction of Jones’s in order to
enhance his punishment pursuant to 21 U.S.C. § 851. Jones responded by contending that this prior
conviction was invalid because it was the result of an involuntary guilty plea. The district court
rejected Jones’s claim and, in reliance on the United States Sentencing Guidelines, sentenced Jones
to 262 months of imprisonment on Count One and to 240 months of imprisonment on Count Three,
to run concurrently. This timely appeal followed.
                                          II. ANALYSIS
A.     Cecil Swoveland’s testimony
        Jones first argues that the district court improperly admitted the testimony of Swoveland,
Jones’s longtime acquaintance. He contends that Swoveland’s testimony dealt with events that are
too old to be of probative value in the present case. Evidentiary rulings such as this “are subject to
the abuse of discretion standard of review.” United States v. Haywood, 280 F.3d 715, 720 (6th Cir.
2002). In general, a “court will find an abuse of discretion where it has a definite and firm
conviction that the court below committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors.” Huey v. Stine, 230 F.3d 226, 228 (6th Cir. 2000) (citation
and quotation marks omitted).
No. 03-6239            United States v. Jones                                                     Page 3


       The government called Swoveland to testify pursuant to Rule 404(b) of the Federal Rules
of Evidence. Under this rule,
        [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
        of a person in order to show action in conformity therewith. It may, however, be
        admissible for other purposes, such as proof of motive, opportunity, intent,
        preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b). The government argues that admission under Rule 404(b) was appropriate
because Swoveland testified that Jones had taught him how to manufacture methamphetamine in
1999. It therefore contends that the testimony is probative in determining Jones’s intent on the day
he was arrested by Deputy Murphy.
        Jones, by contrast, argues that the activities described in Swoveland’s testimony are too old
to be probative. Although Jones is correct in noting that “prior conduct must be reasonably near in
time under the facts of the particular case,” United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir.
1985), this court has previously concluded that there is “no absolute maximum number of years that
may separate a prior act and the offense charged.” Id. Cases from this and other circuits have in fact
affirmed the use of testimony relating to prior acts dating back much further than three years. In
Ismail, for example, the court admitted into evidence testimony relating to events that had happened
up to four years earlier. Id.; see also United States v. Murphy, No. 90-6400, 1993 WL 15102, at
**3-4 (6th Cir. Jan. 26, 1993) (unpublished) (concluding that evidence of prior acts dating back
three to four years was admissible under Rule 404(b)); United States v. Rubio-Gonzalez, 674 F.2d
1067, 1075 (5th Cir. 1982) (concluding that evidence of prior acts dating back 10 years was
admissible under Rule 404(b)); United States v. Foley, 683 F.2d 273, 278 (8th Cir. 1982)
(concluding that evidence of an 11-year-old conviction was admissible under Rule 404(b)). We
therefore find no abuse of discretion in the admission of Swoveland’s testimony.
B.      The jury instructions
        Jones next contends that his conviction should be reversed because the district court failed
to charge a lesser-included offense in the jury instructions. In particular, he claims that the elements
of the charge of conspiracy to possess equipment and chemicals used to manufacture
methamphetamine, 21 U.S.C. § 843(a)(6), are a subset of the elements of Count One, the charge of
conspiracy to manufacture methamphetamine, 21 U.S.C. § 841(a)(1), and that the jury should have
been instructed on the former as well as the latter.
         As an initial matter, the parties disagree as to the appropriate standard of review to be applied
regarding this issue. They both agree that, where a proper request is made in the district court, this
court will review the denial of that request under the abuse-of-discretion standard. United States
v. Ursery, 109 F.3d 1129, 1136 (6th Cir. 1997). But where a “defendant neither requested nor
submitted a lesser-included-offense instruction, and did not object to the instructions given by the
trial judge, the jury instructions are reviewable only for plain error.” United States v. Donathan, 65
F.3d 537, 540 (6th Cir. 1995).
         The government contends that Jones never made a request for an instruction on a lesser-
included offense. But the record reflects that Jones did make a written request for the district court
to instruct the jury “relative to all possible lesser offenses contained in Count One.” In addition,
Jones made an oral request at trial that the jury instructions include a charge of conspiracy to possess
equipment used in the manufacture of methamphetamine. Because Jones made a specific request
for a lesser-included offense, we will review the district court’s decision to deny this request under
the abuse-of-discretion standard. A court applying this standard “will find an abuse of discretion
where it has a definite and firm conviction that the court below committed a clear error of judgment
No. 03-6239           United States v. Jones                                                     Page 4


in the conclusion it reached upon a weighing of the relevant factors.” Huey, 230 F.3d at 228
(citation and quotation marks omitted).
       A defendant is entitled to an instruction on a lesser-included offense if: “(1) a proper request
is made; (2) the elements of the lesser offense are identical to part of the elements of the greater
offense; (3) the evidence would support a conviction on the lesser offense; and (4) the proof on the
element or elements differentiating the two crimes is sufficiently disputed so that a jury could
consistently acquit on the greater offense and convict on the lesser.” United States v. Colon, 268
F.3d 367, 373 (6th Cir. 2001).
         In determining whether “there is an identity of elements of a lesser and greater offense . . . ,
courts are to compare the statutory elements of the offenses in question.” Id. at 375. A defendant
is guilty of conspiring to manufacture methamphetamine if, pursuant to 21 U.S.C. § 841(a)(1) (and
21 U.S.C. § 846), he conspires to “knowingly or intentionally . . . manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” The
same defendant would also be guilty of conspiring to possess equipment and chemicals used to
manufacture methamphetamine if, pursuant to 21 U.S.C. § 843(a)(6) (and 21 U.S.C. § 846), he
conspires “to possess any three-neck round-bottom flask, tableting machine, encapsulating machine,
or gelatin capsule, or any equipment, chemical, product, or material which may be used to
manufacture a controlled substance or listed chemical, knowing, intending, or having reasonable
cause to believe, that it will be used to manufacture a controlled substance.”
         Jones argues that the latter offense is a subset of the former because some equipment is
always necessary for the manufacture of methamphetamine. But, even if this is true, there is no
evidence in the record to suggest that “the proof on the element or elements differentiating the two
crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense and
convict on the lesser.” Colon, 268 F.3d at 373. If Jones had been charged with conspiring to
possess equipment and chemicals used to manufacture methamphetamine, 21 U.S.C. § 843(a)(6),
the evidence presented against him would have been the same: He was found leaving a residence
full of methamphetamine-making equipment with his hands stained with iodine, incriminating coffee
filters were found in his pants pockets, and other testimony established that he had manufactured
methamphetamine in the past. Nothing in the record suggests that the jury would have been likely
to acquit him on the charge of conspiring to manufacture, yet convict him on a charge of conspiring
to possess. Indeed, the fact that his hands were stained with iodine provides compelling proof of
the government’s allegation that Jones was physically involved with the making of
methamphetamine, and did not simply possess the necessary equipment. Accordingly, Jones has
failed to satisfy the fourth Colon factor.
        Because not all the Colon factors were met, there was no abuse of discretion. The district
court therefore properly omitted a charge of conspiring to possess equipment used to manufacture
methamphetamine in the jury instructions.
C.      Reliance on the prior conviction
          Jones next contends that the district court improperly relied on a prior state-court conviction
in enhancing his sentence pursuant to 21 U.S.C. § 851. He argues that this prior conviction was the
result of an involuntary guilty plea and therefore should not have been used to enhance his sentence.
See 21 U.S.C. § 851(c)(2) (allowing defendants to claim that an alleged conviction is invalid).
Although “the district court’s conclusion that a plea is voluntary is to some degree a factual finding,
. . . the ultimate question whether a plea was voluntary requires a legal conclusion.” United States
v. Walker, 160 F.3d 1078, 1095-96 (6th Cir. 1998). We therefore review this issue de novo. Id.
No. 03-6239           United States v. Jones                                                      Page 5


         The criminal offense in question was an October 2001 conviction in state court on one count
of selling a controlled substance. Jones’s guilty plea required him to serve a total of three years, 164
days of which were to be in detention and the remainder of which were to be served on probation.
Because Jones had already served 165 days in pretrial detention, the plea agreement enabled him
to be released from custody immediately. The colloquy between the trial judge and Jones proceeded
as follows:
       The Court:      Is your plea freely and voluntarily based?
       Jones:          Yes, sir.
       The Court:      Do you understand the name and nature and elements of the crime
                       that you are charged with?
       Jones:          Yes, sir.
       The Court:      [Counsel], did you advise your client [of] the nature of the crime with
                       which he is charged and any defenses he might have?
       Counsel:        Yes, Judge, we have discussed this on a couple of occasions.
       The Court:      Jones, do you confirm that?
       Jones:          Yes sir.
       The Court:      Do you understand that these rights are still yours? You have the
                       right to a Jury trial. You have the right to face your accusers. You
                       have the right to a lawyer. You have the right to refuse to testify and
                       the Jury will be instructed that that cannot be held against you. If you
                       plead guilty now, you are asking me to let you give up these rights
                       and you are asking me to place sentence upon you. Do you
                       understand that?
       Jones:          Yes sir.
Several more questions followed, after which the trial judge asked whether Jones had “any
complaints” about his lawyer. This question was answered in the negative, and the sentence was
pronounced.
        Jones now contends that the above sequence of events violated his constitutional rights. He
argues that (1) the trial judge failed to adequately inform him of his rights, (2) his low IQ (which
hovers around the 19th percentile) required a more thorough explanation of what he was waiving,
and (3) the fact that he would be released from custody immediately made the plea bargain offer “by
its very nature coercive.” All of these factors, he contends, serve to make his prior conviction
constitutionally invalid.
        These arguments are unpersuasive in light of this court’s ruling in Walker. In that case, the
defendant similarly contested his enhanced sentence on the ground that his prior conviction was
constitutionally defective. He pointed to his colloquy with the trial judge, which revealed a one-
sided conversation punctuated with Walker occasionally stating, “Yes, your honor.” In rejecting his
claims, however, this court concluded that “[t]here is no requirement that in order to rely on a
defendant’s answers in a guilty-plea colloquy[,] to conclude that the defendant pleaded guilty
knowingly and voluntarily, those answers must be lengthy and all-encompassing; a straightforward
and simple ‘Yes, your Honor’ is sufficient to bind a defendant to its consequences.” 160 F.3d
at 1096.
        Jones attempts to distinguish Walker by arguing that, while Walker was a “bright young
man,” Jones is intellectually infirm, with an extremely low IQ. Moreover, Jones claims that Walker
was able to sign the plea agreement during the plea hearing itself, and that the more detailed series
of questions asked by the trial judge enabled Walker to understand “what he was doing.” None of
these arguments, however, counter Walker’s key observation that “a straightforward and simple
‘Yes, your Honor’ is sufficient to bind a defendant to [the plea agreement’s] consequences.” Id.
No. 03-6239             United States v. Jones                                                        Page 6


        In addition, the state trial judge made repeated efforts to determine whether Jones understood
the import of the rights that he was waiving. After each statement, Jones was asked whether he
understood what his rights were. His lawyer was also asked if he had gone over the essential
elements of the plea bargain with Jones. There is no reason to believe that Jones did not fully
understand the consequences of his guilty plea. In light of these extensive safeguards, we conclude
that the 2001 conviction was not constitutionally invalid. The district court therefore did not err in
relying on the conviction in enhancing Jones’s sentence pursuant to 21 U.S.C. § 851.
D.      Booker issues
        Finally, Jones argues that his sentence should be remanded in light of United States v.
Booker, 125 S.Ct. 738 (2005). Jones, however, did not object to the court’s reliance on the
Sentencing Guidelines themselves. Nor did Jones raise a Sixth Amendment objection to the use of
the Guidelines. We therefore review the district court’s reliance on the Sentencing Guidelines under
the plain-error standard. United States v. Oliver, 397 F.3d 369, 375 (6th Cir. 2005); Fed. R. Crim.
P. 52(b).
        Under the plain-error standard, there must exist “(1) error, (2) that is plain, and (3) that
affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(citation and quotation marks omitted) (alternations in original). The government concedes that
there was plain error in the district court’s understanding that the Sentencing Guidelines are
“mandatory.” Nonetheless, it contends that this error did not affect Jones’s substantial rights, and
that a remand is unnecessary.
        We are not persuaded. Under Booker, the district judge is no longer bound by the Sentencing
Guidelines. But the district judge at the sentencing hearing indicated that he felt obligated to
sentence Jones according to the Sentencing Guidelines, his own judgment notwithstanding. Whether
he would have imposed a different sentence knowing that the Guidelines are now advisory is a
question that only the district court itself can answer. See Oliver, 397 F.3d at 380 n.3 (“We would
be usurping the discretionary power granted to the district courts by Booker if we were to assume
that the district court would have given [the defendant] the same sentence post-Booker.”). In
addition, the district court sentenced Jones on the basis of the amount of ephedrine found at
Bradley’s house, which was a finding of fact not made by the jury. We will therefore remand the
case to the district court for resentencing in compliance with Booker.
                                          III. CONCLUSION
    For all of the reasons set forth above, we AFFIRM the defendant’s conviction, but
REMAND the case for resentencing in accordance with Booker.
