                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0009n.06

                                     Case Nos. 07-6057 and 07-6155

                              UNITED STATES COURT OF APPEALS                                         FILED
                                   FOR THE SIXTH CIRCUIT                                         Jan 06, 2010
                                                                                          LEONARD GREEN, Clerk
 UNITED STATES OF AMERICA,                                    )
                                                              )
            Plaintiff-Appellee/Cross-Appellant,               )
                                                              )       ON APPEAL FROM THE
                   v.                                         )       UNITED STATES DISTRICT
                                                              )       COURT FOR THE MIDDLE
 JEROME SAWYERS,                                              )       DISTRICT OF TENNESSEE
                                                              )
            Defendant-Appellant/Cross-Appellee.               )
                                                              )
 _______________________________________                      )
                                                              )
                                                              )

BEFORE: BATCHELDER, Chief Judge, COLE, Circuit Judge; and Lawson*, District Judge.

        ALICE M. BATCHELDER, Chief Judge. This is the appeal of defendant’s resentencing

for possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871 (2006), and

being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Defendant-Appellant/Cross-Appellee Jerome Sawyers (“Sawyers”) raises several claims regarding

the calculation of his base offense level, the standard of proof for the enhancements he was given,

the consecutive running of his sentences, and the application to his case of United States v. Booker,

543 U.S. 220 (2005). The government counters that the sentence meted out was procedurally

unreasonable because it failed to consider the cross reference provision of U.S.S.G. § 2K2.1(c), and

failed to apply a two-level increase for obstruction of justice. Because it is not clear from the record


        *
         The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting
by designation.
the basis upon which the district court calculated Sawyers’ base offense level, and because the court

declined to apply § 2k2.1(c)’s cross reference provision to conduct for which Sawyers was not

convicted and required too stringent a standard of proof for fact finding at sentencing, we VACATE

the sentence and REMAND for resentencing.

                                                 I.

       Sawyers was charged in an October 24, 2001, superseding indictment with various weapon

and drug violations. Following a trial, on April 19, 2002, a jury found Sawyers guilty of Count 2 of

the indictment, possession of an unregistered firearm, and Count 3, felon in possession of a firearm.

The court sentenced Sawyers on April 25, 2003, to twenty years in prison. Following Sawyers’ pro

se appeal of his conviction and sentence, we affirmed the conviction, but remanded for resentencing.

United States v. Sawyers, 127 F. App’x 174, 186 (6th Cir. 2005).

       A resentencing hearing was held on August 13 and 14, 2007, before a district judge different

from the one who had presided at Sawyers’ trial and original sentencing. The district court on

resentencing imposed imprisonment of 115 months for Count 2 and 35 months for Count 3. Sawyers

and the United States both appealed.

                                                 II.

                We review a judgment of sentence for reasonableness under an
       abuse-of-discretion standard. To obtain relief, an appellant must show that the
       sentence is either procedurally or substantively unreasonable. A sentence may be
       held procedurally unreasonable if it is marked by 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-including an explanation for any deviation from the Guidelines range.

United States v. Houston, 529 F.3d 743, 753 (6th Cir. 2008) (citations omitted). “[A] sentence may



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be substantively unreasonable where the district court select[s] the sentence arbitrarily, bas[es] the

sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an

unreasonable amount of weight to any pertinent factor.” United States v. Tab, 259 F. App’x 684,

697 (6th Cir. 2007) (citations omitted). We have said that “the border between factors properly

considered ‘substantive’ and those properly considered ‘procedural’ is blurry if not porous,” United

States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007), but the distinction is not particularly meaningful

in terms of the sort of process and reasoning in which the district court is permitted — or not

permitted — to engage.

       Sawyers’ initial claim is that the base offense level on which his sentence was calculated was

incorrect because it presumed two prior qualifying adult felony convictions, and Sawyers has only

one such conviction. The application notes to the sentencing guideline at issue, U.S. Sentencing

Guidelines Manual (U.S.S.G.) § 2K2.1, are clear that a “felony conviction” is a crime punishable by

more than one year’s imprisonment “regardless of the actual sentence imposed.” We agree that

Sawyers has only one prior felony conviction as an adult (per Tennessee law, Sawyers’ misdemeanor

conviction was punishable by less than a year, Tenn. Code. Ann § 40-35-111(e)(1)-(2) (2008)). His

offense level, therefore should be calculated based on only one prior felony conviction unless the

court provides a reasoned basis for doing otherwise. (We note that there might be such a basis in

this case, given Sawyers’ long juvenile criminal history, but the court would need to articulate its

reason for considering that history.)

       Sawyers claims that the district court’s explanation of his offense level was, at least, unclear,

and, at most, erroneous. Because after Booker was decided on January 12, 2005, a sentence based

on an improperly calculated guidelines range is considered to be procedurally unreasonable, we must


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remand for resentencing or clarification. U.S. v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007) (“Post-

Booker, we consider sentences predicated on a guideline miscalculation to be ‘procedurally

unreasonable.’”) (citations omitted).

        Sawyers next claims that the district court erred when it enhanced his sentence on the basis

of acquitted conduct. But we have held that a “district court does not abridge the defendant’s right

to a jury trial by looking to other facts, including acquitted conduct, when selecting a sentence within

the statutory range.” United States v. White, 551 F.3d 381, 385 (6th Cir. 2008). Each of Sawyers’

convictions was subject to a statutory maximum term of 120 months’ imprisonment. His sentence

for Count 2 (possessing an unregistered firearm) was 115 months and his sentence for Count 3 (felon

in possession of a firearm) was 35 months, both well within the statutory range. Thus, these claims

have no merit.

        Sawyers also contests the fact that his sentences were made to run consecutively, rather than

concurrently, and claims that the district judge did not provide a rationale for this determination. In

United States v. Owens, we held that the court must “make[ ] generally clear the rationale under

which it has imposed the consecutive sentence and seeks to ensure an appropriate incremental

penalty for the instant offense . . . .” 159 F.3d 221, 230 (6th Cir. 1998). The court here, in

sentencing Sawyers, said that it was considering “his personal history, his post-incarceration efforts

at rehabilitation, his personal circumstances that were outlined by counsel and set out in the

presentence report, [and] consider[ing] all of the factors under § 3553(a),” and mentioned its

particular concern regarding Sawyers’ long history of violence and weapons-related conduct. We

conclude that this discussion lacks the specificity necessary to fulfill the Owens requirement. On

remand, the court should explain more clearly the rationale for its consecutive-sentence


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determination. See 18 U.S.C. § 3584(b) (“The court, in determining whether the terms imposed are

to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term

of imprisonment is being imposed, the factors set forth in section 3553(a).”).

       Sawyers’ final contention is that United States v. Booker, 543 U.S. 220 (2005), was

incorrectly applied to his case because it post-dated his offenses. Apparently, Sawyers believes that

his sentence would have been more palatable under the rubrics of Apprendi v. New Jersey, 530 U.S.

466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). But as Sawyers correctly notes in his

brief, Booker applies to “all cases on direct review” at the time it was decided. See Booker, 543 U.S.

at 267. Booker was decided on January 12, 2005, and Sawyers’ direct appeal was decided on March

22, 2005. Sawyers’s direct appeal was pending at the time of the Booker decision. This claim is

meritless.

                                                 III.

       The government’s cross appeal claims that Sawyers’ sentence was procedurally unreasonable

because the district court failed to consider the cross-reference provision of U.S.S.G. § 2K2.1(c), and

failed to enhance the offense for obstruction of justice. “[T]he adjustments of sentences by

enhancements or reductions are mixed questions of law and fact and are reviewed de novo by

appellate courts. . . . If the sentence is procedurally sound, we then review the sentence for

substantive reasonableness under an abuse of discretion standard.” United States v. Groenendal, 557

F.3d 419, 423 (6th Cir. 2009) (citations omitted). We review a district court’s interpretations of the

Guidelines de novo, and its factual findings at sentencing for clear error. United States v. Kana, Nos.

07-2556, 07-2557, 08-1513, 2009 WL 1421102 at *1 (6th Cir. May 20, 2009) (citations omitted).

       While the district court did consider § 2K2.1(c)’s cross-reference provision, the court said


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that it could not apply that provision because there was no underlying conviction for the offense the

government asked it to cross-reference. But we have said repeatedly with reference to § 2K2.1(c)

and cross-referencing that the court may consider acquitted conduct. E.g., United States v. Cowon,

196 F.3d 646, 649 (6th Cir 1999) (“the sentencing guidelines do not restrict § 2K2.1(c), the cross

reference provision, to offenses that were charged in the indictment or that resulted in a

conviction.”). Thus, the district judge’s failure to consider the cross reference provision as to

acquitted conduct was procedurally unreasonable.

        The government’s second claim of error is that the district court erred when it required that

the enhancement for obstruction of justice be based only on facts admitted by Sawyers or found by

the jury beyond a reasonable doubt. The government is correct. “Booker did not eliminate judicial

fact-finding.” United States v, Stone, 432 F.3d 651, 654 (6th Cir. 2005), cert. denied, 127 S. Ct. 129

(2006). The heightened standard of proof articulated and applied by the district judge was

procedurally unreasonable. See United States v. Gray, 521 F.3d 514, 542 (6th Cir. 2008) (“A

sentencing court acts unreasonably if it commits legal error in the process of taking the Guidelines

or other factors into account, or if it fails to consider them at all.”). The district court’s error here

was not harmless since it affected the sentence that was imposed, United States v. Hazelwood, 398

F.3d 792, 801 (6th Cir. 2005), and thus it merits a remand for resentencing, United States v. Vicol,

514 F.3d 559, 561-62 (6th Cir. 2008).

                                                  IV.

        For the foregoing reasons, we VACATE Sawyers’s sentence and REMAND this matter for

resentencing consistent with this opinion.




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