                                     File Name: 05a0490n.06
                                       Filed: June 10, 2005

                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 03-3498

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )       ON APPEAL FROM THE
               v.                                     )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE SOUTHERN
ROGER TATE,                                           )       DISTRICT OF OHIO
                                                      )
       Defendant-Appellant.                           )
                                                      )


       BEFORE: SUTTON and COOK, Circuit Judges; and ALDRICH, District Judge.*

       ANN ALDRICH, District Judge. In the United States District Court for the Southern

District of Ohio, Tate pled guilty to possession of a counterfeit security in violation of 18 U.S.C. §

513(a) and to aiding and abetting his wife in the commission of that same offense. The district court

accepted his plea and sentenced him in accordance with his presentence report, and Tate appeals his

sentence and restitution order. The parties agree that Tate’s base offense level was six and that he

properly received a two-level reduction for acceptance of responsibility under United States

Sentencing Guideline (“U.S.S.G.”) § 3E1.1.

______________________

         * The Honorable Ann Aldrich, United States District Judge, Northern District of Ohio,
sitting by designation.
       Tate challenges the district court’s application of U.S.S.G. § 2B1.1, which adds offense

levels for certain theft crimes based on the amount of loss attributable to the offense. The district

court found a loss of $38,768; under U.S.S.G. § 2B1.1(a), a loss between $30,000 and $70,000

added six levels, yielding a final offense level of ten. Combined with Tate’s criminal history, that

subjected him to a guideline range of 24-30 months imprisonment. The district court sentenced Tate

to thirty months in prison and three years of supervised release and ordered restitution of $4,848.

If the district court had found a loss of $10,000 to $30,000, his offense level would have been eight

instead of ten, and the resultant guidelines range would have been 18-24 months. First, Tate objects

to the inclusion of a $6,700 “intended loss” for checks confiscated from him, his wife, and two

relatives – checks that they never tried to cash. Second, Tate objects to the inclusion of $2,968.01

in charges made on a stolen credit card used by his wife. We find no error in the district court’s loss

calculation (and consequently, no error in its calculation of Tate’s offense level).

       Tate also challenges his custodial sentence under Blakely v. Washington, __ U.S. __, 124

S.Ct. 2531 (2004), contending that he has a Sixth Amendment right to have a jury determine the

amount of loss beyond a reasonable doubt. This argument is foreclosed by Booker v. United States,

__ U.S. __, 125 S.Ct. 738 (2005), which permits a district court judge to make such a factual finding

so long as the Guidelines are not read to require the judge to increase the sentence based on that

finding. See United States v. Harris, 397 F.3d 404, 411 (6th Cir. 2005) (“Booker teaches that there

is no Sixth Amendment violation when a sentencing judge exercises genuine discretion within a

clearly defined statutory range.”) (citing Booker, 125 S.Ct. at 750 (Stevens, J., for the Court)). The

Court accomplished this by excising 18 U.S.C. § 3553(b)(1), the provision that made the Guidelines

mandatory. See Harris, 397 F.3d at 410 (citing Booker, 125 S.Ct. at 757 (Breyer, J., for the Court)).


                                                 -2-
          We vacate Tate’s custodial sentence, however, because it was imposed with the

understanding that the guidelines were mandatory. Booker held that the Guidelines are merely

advisory and that the district court has discretion to impose a reasonable sentence outside the

Guidelines range. We remand for the district court to exercise that discretion.

          Lastly, Tate challenges the $4,848 restitution order, contending that the proper amount is

$1,800. Tate contends that the district court erred by including $2,968 in charges made on a stolen

credit card registered under his wife’s alias and used only by his wife. Tate is mistaken; under 18

U.S.C. § 3663(a)(2), a defendant convicted of “an offense that involves as an element a scheme,

conspiracy, or pattern of criminal activity” must make restitution to “any person directly harmed

by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” Tate pled

guilty to aiding and abetting, which necessarily involves a “scheme” by two or more people, and the

issuer of his wife’s credit card was directly harmed by his aiding and abetting that scheme.

Accordingly we affirm the restitution order, save the subtraction of $100 to correct a conceded

error.1



                                        I. BACKGROUND

          In August 2002 Tate and his wife Jeanette were arrested while attempting to buy goods at

a clothing store in southern Ohio with a $100 counterfeit travelers check. Police confiscated false

identification cards in the names of “Eric Shelly” and “Michelle Tice.” A search of the Tates’

vehicle uncovered forty-four more counterfeit $100 travelers checks and a stolen credit card also in



          1
                 It is undisputed that the district court erred in ordering restitution for the $100
                 travelers check that Tate was prevented from cashing when he was arrested.

                                                 -3-
the name of Michelle Tice. The Presentence Report states that the credit card was used by Mrs. Tate

for purchases totaling $2,968. (J.A. at 105.)

        During the Secret Service investigation, and in the plea agreement, Tate admitted that he and

his wife knowingly used $9,000 in counterfeit checks in the past and knowingly possessed $8,000

in counterfeit checks on their trip to Cincinnati (using $1,100 in stores and giving others to relatives

for their use). (J.A. at 17, 21, 104-105.) In addition to the checks presented in Cincinnati, VISA

reported receiving $27,000 in counterfeit checks in the name of “Eric Shelly” and/or “Michelle

Tice” between January and August 2002. (J.A. at 105.) The signatures on all the checks were

similar.



                                  II. STANDARD OF REVIEW

        We review the sentencing court’s factual findings for clear error and its legal determinations

de novo. See United States v. Wiant, 314 F.3d 826, 828 (6th Cir.) (citations omitted), cert. denied,

538 U.S. 970 (2003). The determination of what types of loss can constitute the loss attributable to

Tate’s offense for purposes of his offense level under U.S.S.G. § 2B1.1(b)(1) is a question of law

subject to de novo review. See United States v. Brown, 151 F.3d 476, 489 (6th Cir. 1998).2


        2
                When Tate filed this appeal, Title 18 U.S.C. § 3742(e) provided: “Upon review of
                the record, the court of appeals shall determine whether the sentence (1) was
                imposed in violation of law; [or] (2) was imposed as a result of an incorrect
                application of the sentencing guidelines....” In Booker, however, the Supreme Court
                excised section 3742(e) from the Sentencing Reform Act of 1984 (“SRA”). See
                United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005) (citing Booker, 125 S.Ct.
                at 738, 765).

                “Having severed and excised the SRA’s standards governing review of sentences,
                the Supreme Court replaced them with review for unreasonableness. United States
                v. Webb, 403 F.3d 373, 383 (6th Cir. 2005) (citing Booker, 125 S.Ct. at 765).

                                                  -4-
       We uphold restitution awards unless the district court abused its discretion. See United

States v. Hart, 70 F.3d 854, 862 (6th Cir. 1995). We uphold the district court’s finding as to the

amount of restitution unless it is “outside the universe of acceptable computations.” United States

v. Fleming, 128 F.3d 285, 287 (6th Cir. 1997) (citations omitted).



           III. ANALYSIS: LOSS FOR PURPOSES OF CUSTODIAL SENTENCE

A.     Calculating Loss Under U.S.S.G. § 2B1.1

       United States Sentencing Guideline § 2B1.1 governs “Offenses Involving Altered or

Counterfeit Instruments” other than federal securities. Subsection 2B1.1(b)(1) increases the offense

level based on the amount of loss attributable to the offense, as follows:

       Loss (apply the greatest)               Increase in Level
       (A)    $5,000 or less                     no increase
       (B)    More than $5,000                      add 2
       (C)    More than $10,000                     add 4
       (D)    More than $30,000                     add 6 ....

The Commentary to section 2B1.1 further provides, in pertinent part:3



               “Therefore, when a defendant challenges a district court’s sentencing determination,
               we are instructed to determine ‘whether [the] sentence is unreasonable.’” Webb, 403
               F.3d at 383 (citing Booker, 125 S.Ct. at 766).
       3
               We have previously held that because the Sentencing Commission’s Commentary
               constitutes an agency’s interpretations of its own regulations, “it is binding on the
               federal courts unless it is unconstitutional, violates the terms of a federal statute, or
               is plainly inconsistent with the terms of the Guideline being interpreted.” United
               States v. Lucas, 99 F.3d 1290, 1294 (6th Cir. 1996) (citation omitted).

               Although the Guidelines are no longer mandatory, we still look to the Commentary
               for guidance. See United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005); United
               States v. Bivens, Nos. 03-6667 and 04-5044, __ Fed. Appx. __, __, 2005 WL 820705,
               at *7 (6th Cir. Apr. 8, 2005) (standard for determining whether defendant was a minor
               participant in conspiracy); United States v. Kavo, No. 04-1194, __ Fed. Appx. __, __,

                                                 -5-
       Loss Under Subsection (b)(1) * * *

       (A)     General Rule – Subject to the exclusions in subdivision (D) [interest, late fees, cost
               of investigation and prosecution], loss is the greater of actual loss or intended loss.

               (i)    Actual Loss – “Actual loss” means the reasonably foreseeable pecuniary
                      harm that resulted from the offense.

               (ii)    Intended Loss – “Intended loss” (I) means the pecuniary harm that was
                       intended to result from the offense; and (II) includes intended pecuniary
                       harm that would have been impossible or unlikely to occur (e.g., as in a
                       government sting operation, or an insurance fraud in which the claim
                       exceeded the insured value).
                                               ***
       (C)     Estimation of Loss. – The court need only make a reasonable estimate of the loss.
               The sentencing judge is in a unique position to assess the evidence and estimate the
               loss based upon that evidence. For this reason, the court’s loss determination is
               entitled to appropriate deference. See 18 U.S.C. § 3742(e) and (f).

U.S.S.G. § 2B1.1 commentary, App. Note 2 (emphasis added).



B.     The District Court Did Not Err in Calculating the Amount of Loss

       The district court found an actual loss of $31,978, consisting of three components:

       $28,100        Checks cashed by Tate and/or his wife between January and August 2002
       $ 2,968        Charges made on the credit card bearing Tate’s wife’s alias
       $ 100          Check that the Tates were trying to cash when they were apprehended.

Tate concedes that the actual loss includes $28,100 in checks that they actually negotiated.

Conversely, the government concedes that actual loss cannot include the $100 check which the Tates




               2005 WL 783351, at *2 (6th Cir. Apr. 1, 2005) (definition of term “abducted”).

               Our sister Circuits’ post-Booker decisions also continue to look to the Commentary.
               See, e.g., United States v. Wallace, No. 04-1265, __ F.3d __, __, 2005 WL 1200892,
               at *1-2 (8th Cir. May 23, 2005); United States v. Yazzie, No. 04-2152, __ F.3d __, __,
               2005 WL 1189822, at *6 (10th Cir. May 20, 2005) (en banc) (Briscoe, J.,
               concurring).

                                                 -6-
were prevented from cashing. Thus the only disputed component of actual loss is the $2,968

charged on the stolen credit card. But we need not decide whether that amount could properly be

included in actual loss for purposes of U.S.S.G. § 2B1.1. It is irrelevant whether the actual loss

alone exceeded the $30,000 threshold, because the intended loss did.

        “The total loss amount may include both actual and intended losses where the fraud involved

both successful and ultimately unsuccessful attempts.” United States v. Gross, No. 02-1981, 84 Fed.

Appx. 531, 533, 2003 WL 22976583, at *2 (6th Cir. Dec. 5, 2003) (citing United States v. Brown,

151 F.3d 476, 489-90 (6th Cir. 1998)). Accordingly, “if an intended loss that the defendant was

attempting to inflict can be determined, this figure will be used if it is greater than the actual loss.”

United States v. Brothers Const. Co. of Ohio, 219 F.3d 300, 318 (4th Cir. 2000) (citing Brown, 151

F.3d 476). See, e.g. United States v. DeSantis, 237 F.3d 607, 612 (6th Cir. 2001) (“a defendant in

Brown was held responsible for not $152,960.61 in actual losses but $511,023.61 in ‘intended’

losses....”) (emphasis added).4

        We turn then to the calculation of intended loss. The intended loss necessarily includes all

actual losses, because actual loss is merely a loss that Tate intended to inflict and did inflict.5 See


        4
                See also United States v. Swanson, 360 F.3d 1155, 1168-69 (10th Cir. Jan. 26, 2004)
                (where actual loss from check kiting scheme was zero and intended loss was
                $522,064, district court properly calculated total loss at $522,064); United States v.
                Himler, 355 F.3d 735, 740-41 (3d Cir. 2004) (where actual loss from scheme was
                zero but intended loss was $195,000 face value of counterfeit checks, district court
                properly placed total loss in $120,000 to $200,000 range).
        5
                “It is theoretically possible for a person not to intend a loss that occurs. A defendant,
                however, will be hard-pressed to convince a sentencing court that such a loss was not
                intended, especially if the defendant somehow benefits from the loss.” Thomas W.
                Hutchison et al., Federal Sentencing Law & Practice § 2F1.1 n.57 (2005). It would
                strain credulity to suggest that Tate did not intend the losses that he actually caused
                the merchants by negotiating travelers checks that he knew to be counterfeit. Cf.

                                                  -7-
United States v. Carboni, 204 F.3d 39, 47 (2d Cir. 2000) (“Logically, intended loss must include

both the amount the victim actually lost and any additional amount that the perpetrator intended the

victim to lose.”); cf. Thomas W .Hutchison et al., Federal Sentencing Law & Practice § 2F1.1 n.57

(2005) (under former U.S.S.G. § 2F1.1, which was consolidated into U.S.S.G. § 2B1.1, “Intended

loss could have included loss that had already been inflicted (actual loss).”).

       Tate has conceded that his offenses caused $28,100 in actual loss (the amount represented

by the checks that he and/or his wife successfully negotiated between January and August 2002).

In addition to this actual loss, the district court counted the following amounts as intended loss:

$4,400 in unused travelers checks that were seized from Tate and his wife and $2,300 in unused

travelers checks that were seized from Tate’s relatives (who had obtained them from the Tates).

       Tate contends that the $6,700 in unused checks cannot be counted under United States v.

Watkins, 994 F.2d 1192 (6th Cir. 1993), which establishes two surviving requirements needed to

include an amount in the loss attributable to an offense. First, the defendant must have intended the

loss; second, “the defendant must have completed or been about to complete but for interruption,

all of the acts necessary to bring about the loss.” Id. at 1196. Under this standard, the district court

properly counted as intended loss the $4,400 in unused counterfeit checks possessed by the Tates.

       Nothing in the record supports the notion that Tate fabricated those checks but had no design

to negotiate them as he and his wife negotiated all the others throughout the year. Cf. United States

v. Jeffers, No. 04-4018, 108 Fed. Appx. 804, 805-806, 2004 WL 2072322, at *1 (4th Cir. Sept. 17,




               United States v. Angel, No. 95-1327, 77 F.3d 483, 1996 WL 67928, at *3 (6th Cir.
               Feb. 15, 1996) (“in cases requiring a determination of intent, a jury may conclude
               that a defendant intended the natural and probable consequences of her actions.”)
               (citations omitted).

                                                  -8-
2004) (notwithstanding that defendant returned $215,000 teller check to bank, district court did not

err by counting it as intended loss, because theft of the check was “part of the same course of

conduct as his fraudulent loans” which did cause loss to the bank). It was reasonable to infer that

the Tates intended to continue, and would have continued negotiating counterfeit checks in the same

manner if they had not been apprehended (or as Watkins puts it, “interrupted”). See United States

v. Rennicke, Nos. 04-3486 and 04-3487, __ Fed. Appx. __, 2005 WL 1140310, at * (7th Cir. May 1,

2005) (district court properly determined total loss by using intended loss rather than the lower

actual loss figure “under the assumption that they would not have discontinued their scheme until

caught.”) (citing United States v. Rettenberger, 344 F.3d 702, 708-709 (7th Cir. 2003)).

        Adding that $4,400 to the $28,100 in conceded actual loss yields an intended loss of $32,500.

Because total loss is the larger of actual loss or intended loss, see U.S.S.G. § 2B1.1 App. Note 2, the

intended loss of $32,500 is the total loss. That alone yields a loss between $30,000 and $70,000,

triggering the addition of six offense levels under U.S.S.G. § 2B.1(b)(1)(D). Thus we need not

consider whether the $2,300 in unused checks found in the possession of the Tates’ relatives also

could be counted as intended loss attributable to Tate. Likewise, we need not consider whether the

$2,968 in charges on the stolen credit card could properly be counted as intended loss.

        In short, the district court did not err in finding that the total loss attributable to Tate’s

offenses was sufficient to add six offense levels, for a total offense level of ten and a Guideline range

of 24-30 months imprisonment.



                IV. ANALYSIS: LOSS FOR PURPOSES OF RESTITUTION

        The district court’s $4,868 restitution order consisted of three components:


                                                  -9-
       Charges made by Tate’s wife on stolen credit card                               $2,968
       Amounts not contested by Tate                                                   $1,800
       Check that the Tates were trying to cash when they were arrested                $ 100

The government states, “We must ... concede that the defendant was ordered, in error, to make

restitution in the amount of $100.00 to American Eagle. [T]he transaction was terminated before

either the defendant or his co-defendant could defraud yet another victim.” Government’s Brief at

17. Thus the only dispute is whether the district court erred in counting the charges that Tate’s wife

made on the stolen credit card as a loss for purposes of his restitution order.

       U.S.S.G. § 5E1.1 provides, in pertinent part,

       (a)     In the case of an identifiable victim, the court shall –

               (1)     enter a restitution order for the full amount of the victim’s loss, if such order
                       is authorized under 18 U.S.C. ... § 3663, or § 3663A ....

See also 18 U.S.C. § 3556 (“The court, in imposing a sentence on a defendant who has been found

guilty of an offense shall order restitution in accordance with section 3663A, and may order

restitution in accordance with section 3663. * * * ”); 18 U.S.C. § 3663(a)(1)(A) (“The court, when

sentencing a defendant convicted of an offense under this title, ... may order ... that the defendant

make restitution to any victim of such offense....”). The question is whether the issuer of the stolen

credit card is Tate’s “victim” for purposes of restitution. We answer that question in the affirmative.

       In Hughey v. United States, 495 U.S. 411 (1990), the Supreme Court interpreted the Victim

and Witness Protection Act of 1982 (“VWPA”) and reversed an order that required the defendant

to pay restitution for counts other than the counts of conviction. The Court held that “the language

and structure of the Act make plain Congress’[s] intent to authorize an award of restitution only for

the loss caused by the specific conduct that is the basis of the offense of conviction.” Id. at 420.




                                                 -10-
        Shortly after Hughey, however, Congress amended the VWPA to broaden the definition of

victim. The VWPA now provides that for purposes of restitution, an offender’s victims include:

        a person directly and proximately harmed as a result of the commission of an offense for
        which restitution may be ordered including, in the case of an offense that involves as an
        element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed
        by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

18 U.S.C. § 3663(a)(2) (emphasis added). For defendants sentenced after the effective date of the

amendment, we inquire whether any offense of conviction had as an element “a scheme, conspiracy

or pattern of criminal conduct.” If so, we uphold restitution orders that go beyond the conduct

directly underlying the offenses of conviction. See, e.g., United States v. Jackson, Nos. 97-5977 and

97-6014, 149 F.3d 1185, 1998 WL 344041 (6th Cir. May 28, 1998) (pled guilty to conspiracy).

        In United States v. Clark, 957 F.2d 248 (6th Cir. 1992), the defendant was convicted of theft

of one vehicle and conversion with the intent to steal another. The defendant stole two other

vehicles so that he would not have to use his own car to get to the scene of the thefts for which he

was convicted. See id. at 249-50. The district court ordered restitution not only for the two vehicles

underlying the conviction, but also for the third and fourth vehicles. See id. at 252-53. On appeal,

the government emphasized that the defendant stole the third and fourth vehicles in the course of

his theft and conversion of the first two. The government argued that “the evidence, taken in its

entirety, indicated that [the defendant] was involved in a scheme, conspiracy or pattern of stealing

vehicles and, therefore, that the ‘victims’ entitled to restitution include all those whose vehicles were

stolen during the course of [his] activities.” Id. at 253. We rejected the government’s argument and

held,

        Section 3663(a)(2) by its terms extends only to those crimes where a scheme, conspiracy,
        or pattern of criminal activity is an element of the offense [of conviction].
                                                 ***

                                                  -11-
       The indictment under which [the defendant] was charged and convicted was limited to the
       FBI Blazer and Cadillac and was brought solely under 18 U.S.C. § 641 [theft of public
       money, property or records]. That section, however, does not include a scheme, conspiracy,
       or pattern of criminal conduct as an element of the offense. Therefore, the FBI was the only
       ‘victim’ entitled to restitution under the VWPA. That Clark may have been involved in a
       scheme or pattern of stealing vehicles is, we believe, irrelevant; Clark was neither charged
       with nor convicted of such scheme or pattern, but merely with simple theft.

Id. (emphasis in original).

       Here, by contrast, Tate pled guilty not just to the counterfeit security offense, but also to

aiding and abetting his wife in committing the same offense. Tate’s aiding and abetting his wife in

their negotiation of dozens of checks they knew to be counterfeit, over many months, involves a

“scheme ... or pattern of criminal activity” as required by 18 U.S.C. § 3663(a)(2).6 Moreover, it is

reasonable to infer that the stolen credit card was used for the mutual benefit of the Tates and could



       6
               For purposes of restitution, 18 U.S.C. § 3663(a)(2) defines victim to include, “in the
               case of an offense that involves as an element a scheme, conspiracy, or pattern of
               criminal activity, any person directly harmed by the defendant’s criminal conduct in
               the course of the scheme, conspiracy, or pattern.” Emphasis added. In counting the
               credit card issuer as Tate’s victim, we omit the word “conspiracy.” This is because
               conspiracy is not a necessary element of Tate’s aiding and abetting offense.

               Aiding and abetting necessarily involves joint activity between two or more people
               (a “scheme”), see United States v. Rodriguez, Nos. 88-1125 and 88-1127, 878 F.2d
               387, 1989 WL 69934, at *5 (9th Cir. June 23, 1989), but it does not necessarily
               involve a “conspiracy.” See United States v. Carson, 9 F.3d 576, 586 (7th Cir. 1993)
               (unlike conspiracy, “aiding and abetting does not require proof of an agreement to
               break the law. Rather it requires knowledge of the crime being aided and abetted,
               a desire to help the activity succeed, and some act of helping.”) (citation omitted).
               “[C]onspiracy ... involves the additional element of preconcert and connivance not
               necessarily inherent in the mere joint activity common to aiding abetting.” United
               States v. Abreu, 962 F.2d 1425, 1434 (10th Cir. 1992) (citing United States v. Townes,
               512 F.2d 1057, 1058 (6th Cir. 1975) and published decisions from Third, Fourth and
               Fifth Circuits), vac’d o.g., 508 U.S. 935 (1993). See, e.g., United States v. Zafiro,
               945 F.2d 881, 884 (7th Cir. 1991) (someone who warns members of drug ring of
               police raid, without previous dealings with ring, would be aider and abettor but not
               a conspirator) (citation omitted), aff’d, 506 U.S. 534 (1993).

                                                -12-
have furthered their crime spree by defraying the cost of lodging, transportation, clothing to alter

their appearance, etc. Thus it was not error to hold Tate liable for the losses inflicted on the credit

card issuer in the course of the joint criminal scheme perpetrated by him and his wife.7



                         V. ANALYSIS: THE IMPACT OF BOOKER


       In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

In Blakely v. Washington, 524 U.S. __, 124 S.Ct. 2531 (2004), the Supreme Court elaborated that

       the “statutory maximum” for Apprendi purposes is the maximum sentence [a judge may
       impose solely on the basis of the facts reflected in the jury verdict or admitted by the
       defendant. * * * In other words, the relevant “statutory maximum” is not the maximum
       sentence a judge may impose after finding additional facts, but the maximum he may impose
       without any additional findings. When a judge inflicts punishment that the jury’s verdict


       7
               United States v. Comer, 93 F.3d 1271 (6th Cir. 1996) does not preclude this holding.
               That panel did remark that although a defendant had been charged with aiding and
               abetting, § 3663(a)(2)’s expanded definition of victim did not apply. The panel
               stated, “Comer was charged ... with violations of 18 U.S.C. §§ ... 2 and was not
               charged with any crime that required proof of a scheme, conspiracy, or pattern of
               criminal activity.” Id. at 1275 n.1.

               That statement was mere dicta, however, because it was not necessary to the
               decision. The panel identified a different basis for vacating the restitution order:
               “We vacate Comer’s sentence and remand for resentencing because the district court
               erred in ... imposing a restitution order based in part on uncharged conduct and
               charges of which the defendant was acquitted.” Id. at 1274 (citation omitted). We
               are not bound by dicta in a previous panel opinion. See United States v. Burroughs,
               5 F.3d 192, 194 (6th Cir. 1993) (citation omitted).

               Moreover, Comer is readily distinguishable from this case. The restitution order
               against Tate was based only on conduct for which was convicted – possessing
               counterfeit checks and aiding and abetting – not on uncharged or acquitted conduct.

                                                 -13-
       alone does not allow, the jury has not found all the facts “which the law makes essential to
       the punishment,” and the judge exceeds his proper authority.

Blakely, 124 S.Ct. at 2357 (internal citations omitted) (emphasis in original).

       Then, in United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), the Supreme Court held

that Blakely’s reading of the Sixth Amendment right to a jury trial affects the Guidelines. More

specifically, the Supreme Court

       held that the mandatory federal sentencing guidelines violated the Sixth Amendment by
       requiring judges to enhance the sentences of defendants based on facts not found by a jury
       or admitted by the defendant. To remedy this problem, the Court excised from the
       Sentencing Act the provisions making the Guidelines mandatory. Id. at 764. Booker then
       instructed reviewing courts to apply its Sixth Amendment holding and its remedial
       interpretation of the Sentencing Act to all cases on direct review. Id. at 769.

United States v. Israel, No. 03-3298, __ Fed. Appx. __, 2005 WL 1027563, at *6 (6th Cir. May 3,

2005) (emphasis added).

       Here, Tate’s offense level was increased – and hence his Guideline sentencing range was

increased by six months – based on facts found by the district judge, namely the amount of total loss

attributable to his offenses. Since Tate failed to make this Sixth Amendment objection at

sentencing, however, we conduct only plain error review to determine if he must be re-sentenced.

See Israel, 2005 WL 1027563 at *6. Re-sentencing is not necessary unless there is (1) error (2) that

is plain and (3) that affects Tate’s substantial rights.8 See id. (citing United States v. Oliver, 397

F.3d 369, 378 (6th Cir. 2005)). If these conditions are met, we may exercise our discretion to notice




       8
               “[W]e ordinarily require a showing, beyond a reasonable doubt, that an error affected
               substantial rights....” United States v. Moreno-Delgado, Nos. 03-6656 and 03-6657,
               __ Fed. Appx. __, 2005 WL 873412, at *3 (6th Cir. Apr. 18, 2005). However,
               “where, as here, such a showing would be exceedingly difficult, we will assume
               prejudice absent evidence to the contrary.” Id. (citing Barnett, 398 F.3d at 526-30).

                                                -14-
the forfeited error if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.

       Tate’s sentence in violation of the Sixth Amendment constitutes error that is plain.

“Moreover, according to this circuit’s precedent in Oliver, a sentence enhancement based on judge-

found facts under a mandatory guidelines system necessarily affects [Tate]’s substantial rights.”

Israel, 2005 WL 1027563 at *7 (citing Oliver, 397 F.3d at 379-80). Furthermore, “Oliver dictates

that any sentencing error that leads to a violation of the Sixth Amendment by imposing a more

severe sentence than is supported by the jury verdict automatically diminishes the integrity and

reputation of the judicial system.” Israel, 2005 WL 1027563 at *7 (citing Oliver, 397 F.3d at 380).

       Lastly, we recently held that “in light of the Supreme Court’s remedial holding in Booker,

a sentencing court’s ‘failure to treat the sentencing guidelines as advisory’ constitutes plain error.”

United States v. Hudson, 405 F.3d 425, 444 (6th Cir. 2005) (quoting United States v. Barnett, 398

F.3d 516, 527 (6th Cir. 2005)). Under Barnett, we presume that such an error affected a defendant’s

substantial rights. See Hudson, 405 F.3d at 444 (citing Barnett, 398 F.3d at 527-29).

       As we were careful to observe in Barnett, we do not categorically rule out the possibility that

there may be a case “where the evidence in the record will be sufficient to rebut the presumption of

prejudice.” Barnett, 398 F.3d at 529. Thus, we must determine whether “the trial record contains

clear and specific evidence that the district court would not have, in any event, sentenced the

defendant to a lower sentence under an advisory guidelines range.” Barnett, 398 F.3d at 529 (citing

United States v. Crosby, 397 F.3d 103, 118 (2d Cir. 2005)). The government has not identified any

such “clear and specific evidence” that would rebut the presumption of prejudice.




                                                 -15-
       Therefore, Tate’s custodial sentence must be vacated and his case remanded for a new

determination of his terms of imprisonment and supervised release. See United States v. Yagar, 404

F.3d 967 (6th Cir. 2005) (remanding for resentencing on mail theft conviction where district court

believed that it was required to enhance sentence based on its finding that loss exceeded $10,000).



                                       VI. CONCLUSION

        For the foregoing reasons, we affirm the determination that an intended loss of between

$30,000 and $70,000 was attributable to Tate’s offenses for purposes of his custodial sentence.

Consequently we also affirm the addition of six offense levels under U.S.S.G. § 2B1.1(b)(1),

yielding a total offense level of ten, and the guidelines again call for 24-30 months imprisonment.

       Under Booker, however, that range is merely advisory, and the district court has discretion

to impose a reasonable sentence outside the range under appropriate circumstances. Therefore we

vacate Tate’s custodial sentence and remand for the district court to exercise its Booker discretion.

In doing so, however, the district court should still consider the recommended Guidelines sentence.

See United States v. McDaniel, 398 F.3d 540, 550-51 (6th Cir. 2005) (citing Booker, 125 S.Ct. at 764,

and 18 U.S.C. § 3553(a)), reh’g denied (6th Cir. May 13, 2005); see, e.g., United States v. Phelps,

No. 1:04CR41, __ F. Supp. 2d __, 2005 WL 984156 (E.D. Tenn. Apr. 1, 2005).

       Lastly, we direct the district court to reduce Tate’s restitution obligation from $4,848 to

$4,748 to rectify the erroneous inclusion of a $100 check that was never cashed.




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