                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 05a0538n.06
                          Filed: June 22, 2005

                                    No. 04-5414

                     UNITED STATES COURT OF APPEALS
                          FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                  )
                                           )
            Plaintiff-Appellee,            )               ON APPEAL FROM THE
                                           )               UNITED STATES DISTRICT
     v.                                    )               COURT FOR THE WESTERN
                                           )               DISTRICT OF TENNESSEE
CHRISTOPHER CLEMENTS                       )
                                           )
            Defendant-Appellant.           )

BEFORE: DAUGHTREY and CLAY, Circuit Judges, and GRAHAM,1 District
Judge.

     GRAHAM,     District    Judge.            Defendant-Appellant          Christopher
Clements was indicted on January 16, 2003, in the Western District
of   Tennessee     for     one     count       of    conspiracy      to     manufacture
methamphetamine      and     one     count          of     attempt   to     manufacture
methamphetamine in violation of 21 U.S.C. § 846, and one count of
aiding    and   abetting    the     possession            of   equipment,    chemicals,
products and materials used to manufacture methamphetamine in
violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2.                         Defendant
was arrested on January 29, 2003.                        Defendant was arraigned on
February 5, 2003, and an order of detention pending trial was
entered.   On November 18, 2003, defendant entered a plea of guilty
to the conspiracy charge, Count 1 of the indictment.
     During the preparation of the presentence report, defendant
objected to the probation officer’s determination of the quantity



     1
       The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
of drugs used as relevant conduct to establish the defendant’s
offense level. In a sentencing memorandum filed on March 17, 2004,
the defendant withdrew his objection to the amount of drugs
utilized to calculate his base offense level.                At the sentencing
hearing held on March 18, 2004, defense counsel reaffirmed that the
objection to the calculation of the quantity of drugs being used to
determine the base offense level was being withdrawn.                 Accepting
the probation officer’s findings in the presentence report, the
district court determined that the defendant’s relevant conduct in
the conspiracy was at least five hundred grams but not more than
1.5 kilograms of methamphetamine, yielding a base offense level 32.
        Defendant    made   objections      to   the   probation       officer’s
conclusions that two levels should be added for obstruction of
justice under § 3C1.1 of the United States Sentencing Guidelines
(“U.S.S.G.”), and that defendant was not entitled to a reduction
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The
court    granted    defendant’s   objection      to    the    enhancement   for
obstruction of justice.
        The probation officer’s conclusion that defendant was not
entitled to a reduction for acceptance of responsibility was based
on information that on February 24, 2003, subsequent to his
indictment and arrest for the offense in this case, defendant was
involved    in    the   transmission   of    a   recipe      for   manufacturing
narcotics.       A recipe for the manufacture of LSD was found in the
apartment of Scott Pecukonis. The letter containing the recipe was
found with an envelope which indicated that it had been mailed by
the defendant from the West Tennessee Detention Facility, Mason,
Tennessee, on February 24, 2003. Defendant’s wife, Tonya Clements,


                                       2
confirmed that defendant had sent the letter.                    The probation
officer   also   relied   on   information     that   on    March   19,    2003,
defendant was involved in a scheme to smuggle marijuana into the
detention facility.       The probation officer received a summary of
phone calls pertaining to the scheme, and defendant’s wife admitted
that defendant had asked her to smuggle marijuana to him.
     At   the    sentencing    hearing,     defense   counsel     stated    that
defendant did not dispute the above information.            He also conceded
that the defendant’s actions indicated that defendant had not
accepted responsibility at that point, and that his actions were
contrary to a finding of acceptance of responsibility.                However,
counsel noted that an entire year had passed since these incidents,
during which the defendant had not engaged in any similar conduct.
Counsel   further    argued    that   the   defendant      had   admitted    his
responsibility for the offense of conviction when he pleaded
guilty, and that he had done everything he could to cooperate with
the government.     The government argued that defendant’s behavior
was inconsistent with acceptance of responsibility, and further
noted that defendant’s lack of involvement in any further drug
activity could be explained by the fact that after these incidents,
defendant was transferred to a more secure federal facility.
     The district court agreed with the government’s position and
concluded that defendant was not entitled to a reduction for
acceptance of responsibility in light of his involvement with drug
activity on two occasions following his arrest.                  Defendant was
sentenced to a term of imprisonment of one hundred and thirty-five
months.   Defendant now pursues the instant appeal.




                                      3
Acceptance of Responsibility
       In his first assignment of error, defendant argues that the
district court erred in not granting him a three-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1.         We first
note that during the pendency of this appeal, the United States
Supreme Court rendered a decision in United States v. Booker, 543
U.S.       , 125 S.Ct. 738 (2005), holding that the Sentencing
Guidelines are no longer mandatory.        However, under 18 U.S.C. §
3553(a)(4)(A), the sentencing range calculated under the Sentencing
Guidelines is still a factor which must be considered by the
district court in imposing sentence.            Therefore, whether the
district    court   correctly   declined   to   grant   a   reduction   for
acceptance of responsibility under the Guidelines is a matter we
must address as part of this court’s review of the sentence for
reasonableness as required under Booker.
       The determination of the sentencing judge on the issue of
acceptance of responsibility “is entitled to great deference on
review.”     U.S.S.G. § 3E1.1, app. note 5.         While the district
court’s factual findings for purposes of sentencing under the
Guidelines are reviewed for clear error, a deferential standard of
review is applied to the district court’s application of the
guidelines to the facts.    United States v. Webb, 335 F.3d 534, 536-
38 (6th Cir. 2003)(noting that the de novo review standard for the
application of the acceptance of responsibility adjustment to
uncontested facts used in United States v. Jeter, 191 F.3d 637, 638
(6th Cir. 1999) was no longer valid in light of Buford v. United
States, 532 U.S. 59 (2001)).
       Section 3E1.1(a) of the Guidelines provides that a defendant’s


                                    4
offense level should be decreased by two levels if he “clearly
demonstrates    acceptance       of    responsibility      for   his   offense.”
U.S.S.G. § 3E1.1(a).       The defendant has the burden of proving by a
preponderance of the evidence that he merits a reduction for
acceptance of responsibility.           United States v. Hughes, 369 F.3d
941, 945 (6th Cir. 2004); United States v. Benjamin, 138 F.3d 1069,
1075 (6th Cir. 1998).           Factors which the court may consider in
determining whether a defendant is entitled to a reduction under
that section include: whether the defendant truthfully admitted the
conduct comprising the offenses of conviction, and truthfully
admitted, or did not falsely deny any additional relevant conduct
for which the defendant is accountable; the voluntary termination
or    withdrawal   of     the    defendant       from    criminal    conduct   or
associations; and the timeliness of the defendant’s conduct in
manifesting the acceptance of responsibility.                U.S.S.G. § 3E1.1,
app. note 1(a), (b), and (h).
      The entry of a guilty plea combined with truthfully admitting
the   conduct   comprising       the   offense    of    conviction   constitutes
significant     evidence    of     acceptance      of    responsibility    under
U.S.S.G. § 3E1.1, app. note 3.               However, a defendant is not
entitled to this reduction as a matter of right, and the fact that
the defendant entered a guilty plea may be outweighed “by conduct
of the defendant that is inconsistent with such acceptance of
responsibility.”        Id.; Webb, 335 F.3d at 538; United States v.
Tilford, 224 F.3d 865, 867 (6th Cir. 2000).
      Under § 3E1.1(b), a defendant whose offense level is level
sixteen or greater prior to the adjustment for acceptance of
responsibility may qualify for an additional one-level decrease if


                                         5
he has timely notified authorities of his intention to enter a plea
of guilty, thereby permitting the government to avoid preparing for
trial     and   permitting   the   court      to   allocate   its   resources
efficiently.      U.S.S.G. § 3E1.1(b).        In order to qualify for the
additional reduction under § 3E1.1(b), the defendant must also
qualify for a decrease under § 3E1.1(a).            U.S.S.G. § 3E1.1, app.
note 6.
        The district court declined to grant defendant a reduction for
acceptance of responsibility on the ground that defendant’s drug
activities after his indictment and arrest but prior to his guilty
plea     were   inconsistent   with       a   finding   of    acceptance   of
responsibility.     Defendant argues that his plea of guilty in this
case entitles him to the reduction.            He contends that since the
incidents involving the LSD recipe and the attempt to smuggle
marijuana occurred prior to the entry of his guilty plea, they
cannot be considered in determining whether he is entitled to the
reduction.
        Defendant relies on United States v. Jeter, 191 F.3d at 640,
where we noted that, although district courts have discretion in
determining the time period for acceptance of responsibility, that
discretion is not unbridled.       In Jeter, we held that the district
court could not use Jeter’s preindictment state crimes as a basis
for denying him a reduction for acceptance of responsibility,
stating that “the defendant must be on notice that the federal
government has an interest in his or her affairs before § 3E1.1
comes into play.”     Id. at 639-40.
        Defendant also cites United States v. Tilford, in which this
court concluded that, despite the fact that Tilford was alerted to


                                      6
the IRS agents’ interest in his affairs in 1993 when he was
informed of the IRS investigation, the relevant time period for
measuring Tilford’s acceptance of responsibility began with the
entry of Tilford’s guilty plea in 1998.   Tilford, 224 F.3d at 868.
Tilford pleaded guilty on the same day he was indicted.
     However, in United States v. Harper, 246 F.3d 520, 527 (6th
Cir. 2001), overruled on other grounds, United States v. Leachman,
309 F.3d 377, 385 (6th Cir. 2002), we concluded that the district
court properly evaluated the defendants’ conduct for purposes of
the acceptance of responsibility adjustment as of the date of the
indictment.   In Harper, the defendant wrote an obstructive letter
after he was indicted, but three-and-a-half months prior to signing
a plea agreement.    This court noted that the district court could
consider the defendant’s behavior following his indictment in
federal court in determining acceptance of responsibility “because
the defendant is certainly ‘on notice that the federal government
has an interest in his ... affairs’ at the time of indictment.”
Id. at 526-27 (quoting Jeter, 191 F.3d at 639-40).   We stated that
the defendant knew of the government’s interest in his criminal
activity, at the latest, when he was first indicted, and held that
“the district court did not err by considering all post-indictment
behavior when assessing whether to grant a downward adjustment
under § 3E1.1.”     Id. at 527.   Subsequently, in United States v.
Webb, this court upheld the district court’s denial of a reduction
for acceptance of responsibility where the defendant continued to
engage in drug trafficking after the execution of search warrants
but prior to the defendant’s arrest.    Webb, 335 F.3d at 538.
     Defendant relies on United States v. Hakley, No. 01-2423


                                  7
(unreported), 2004 WL 1367481 (6th Cir. June 15, 2004).       In Hakley
a panel of this court held that the district court should only have
considered the defendant’s post-plea conduct.    However, in Hakley,
the other criminal activity in question occurred prior to the
defendant’s being charged by way of information.        Thus, we do not
believe that Hakley can be read as placing an absolute ban on the
consideration of conduct which occurs prior to the entry of a
guilty plea.   Even if Hakley is so construed, it is an unreported
decision, and to the extent that it conflicts with the previously
published opinions in Harper and Webb, we are bound to follow
Harper and Webb.   See 6th Cir. R. 206(c).
     The district court did not err in considering the defendant’s
post-indictment conduct in deciding whether the defendant was
entitled to a reduction for acceptance of responsibility.            The
district court reasonably concluded that defendant’s admitted
continuing drug activities, which indicated the defendant’s failure
to voluntarily terminate or withdraw from criminal conduct or
associations, was inconsistent with a finding of acceptance of
responsibility. U.S.S.G. § 3E1.1, app. notes 1(b) and 3.             The
district court’s denial of the reduction was reasonable. Since the
court   properly   denied    the   reduction    for     acceptance    of
responsibility under § 3E1.1(a), defendant was not entitled to a
further one-level reduction under § 3E1.1(b).         Defendant’s first
assignment of error is DENIED.


Quantity of Controlled Substance
     In his second assignment of error, defendant, citing Blakely
v. Washington, 542 U.S.     , 124 S.Ct. 2531 (2004), argues that his


                                   8
rights under the Sixth Amendment of the United States Constitution
were violated when the district court sentenced him based on a
quantity of drugs which was not found by a jury to have been proved
beyond a reasonable doubt and not admitted by him.       Defendant does
not attack the factual accuracy of the district court’s drug
quantity findings.    Rather, defendant contends that the sentencing
procedures employed by the district court violated Blakely and
Booker.
     In Blakely, the Supreme Court held that the determinate
sentencing system in effect in the state of Washington was invalid
on Sixth Amendment grounds.       During the pendency of this appeal,
the United States Supreme Court issued a decision in United States
v. Booker, in which the Supreme Court extended the reasoning in
Blakely to the federal Guidelines.      The Court in Booker held: “Any
fact (other than a prior conviction) which is necessary to support
a   sentence   exceeding   the    maximum   authorized   by   the   facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”
Booker, 125 S.Ct. at 756.        The holding in Booker applies to all
cases pending on direct appeal at the time of the decision.          Id.,
125 S.Ct. at 769.
     Defendant did not make an argument under Blakely or Booker
before the district court, as neither of those cases had been
decided at the time of the defendant’s sentencing.            Typically,
where a defendant fails to assert an argument before the district
court, that argument is deemed to be forfeited and is reviewed on
appeal for plain error.    United States v. Milan, 398 F.3d 445, 450-
51 (6th Cir. 2005).   However, in this case, the government argues


                                    9
that the defendant’s withdrawal of his objection to the probation
officer’s   conclusions    concerning     the   amount   of   drugs   to   be
considered as relevant conduct operated as an admission of that
drug quantity.     The government’s position is that defendant’s
withdrawal of his objections to drug quantity constituted a waiver
by the defendant of any objection to that quantity, foreclosing any
claim of error under Booker.
     Waiver is distinguishable from forfeiture.          Forfeiture is the
failure to make a timely objection or assertion of a right, whereas
waiver is the intentional relinquishment or abandonment of a known
right.   United States v. Olano, 507 U.S. 725, 733 (1993).            Plain
error review does not apply to cases of waiver, but may be invoked
in the court’s discretion to review rights that were forfeited
below.   Id. at 733-34.
     In United States v. Stafford, 258 F.3d 465, 476 (6th Cir.
2001), we held that the defendant’s failure to challenge the drug
quantity findings made by the probation officer operated as an
admission to the drug types and quantities contained in the report,
and provided the requisite factual basis to sustain the defendant’s
enhanced sentence.    See also United States v. Roper, 266 F.3d 526,
531-32 (6th Cir. 2001)(defendant’s withdrawal of objection and
stipulation   to   drug   quantity   in   presentence    report   provided
requisite factual basis for enhanced sentence); United States v.
Pruitt, 156 F.3d 638, 648 (6th Cir. 1998)(defendant’s statement that
he had no objections to the presentence report constitutes an
express admission of the amount and type of drugs attributed to the
defendant in the report).
     Although the above decisions stand for the proposition that


                                     10
the failure to object to the probation officer’s calculations of
drug quantity constitutes an admission of that quantity, they do
not specifically address whether that failure to object constitutes
a waiver precluding plain error review of the district court’s
quantity determinations on appeal.    In United States v. Treadway,
328 F.3d 878, 883 (6th Cir. 2003), we applied a plain error analysis
to defendant’s drug quantity challenge on appeal even though
defendant did not object at sentencing to the drug quantity
specified in the PSI. Thus, there may be a hypothetical case where
a defendant could argue for a plain error analysis of a Stafford
admission, such as where the parties learn after sentencing that
the quantity finding was based on clearly erroneous information, or
where the defendant at sentencing was unaware of or mistaken as to
material facts.
     However, such an issue is not before us here.    Regardless of
whether a Stafford admission results in a waiver or a forfeiture of
any objection to the accuracy of the probation officer’s drug
quantity findings, that is not the nature of defendant’s claim in
this appeal.   Rather, the defendant’s argument is that his Sixth
Amendment rights as defined under Blakely and Booker were violated
by the sentencing procedure employed by the district court.
     In Stafford and Roper, this court employed a plain error
analysis in addressing an analogous argument that the sentences in
those cases were invalid under Apprendi v. New Jersey, 530 U.S. 466
(2000).   Stafford, 258 F.3d at 476-79; Roper, 266 F.3d at 531.   In
United States v. Stines, 313 F.3d 912 (6th Cir. 2002), this court
reviewed the defendants’ Apprendi claim for plain error even though
one defendant withdrew his objection to the drug quantity in the


                                 11
report and another   defendant stipulated to a base offense level.
We commented, “The subsequent withdrawal by Stines and stipulation
by Ford could lead one to believe that defendants waived their
claims challenging the drug quantity determination.”    Id. at 917.
However, noting the distinction between waiver and forfeiture, this
court went on to state that it “would have been impossible for the
defendants to have intentionally relinquished or abandoned their
Apprendi based claims considering Apprendi was decided after they
were sentenced.”   Id.   We concluded that the withdrawal of Stine’s
objection and Ford’s stipulation resulted in a forfeiture rather
than a waiver of their right to challenge the drug quantity
determination on appeal, requiring review of their Apprendi claim
under the plain error analysis.     Id. at 917-18.
     As in Stines, the defendant here could not have intentionally
relinquished or abandoned his Blakely and Booker claims, since
those cases were decided after he was sentenced.      Therefore, we
will address the defendant’s claim under Blakely and Booker using
a plain error analysis.
     Under the plain error test, “before an appellate court can
correct an error not raised at trial, there must be (1) ‘error,’
(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’”
Johnson v. United States, 520 U.S. 461, 466-67 (1997)(quoting
Olano, 507 U.S. at 731).    If these three criteria are met, then we
may exercise our discretion to notice a forfeited error which
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.     Milan, 398 F.3d at 451.
     First, we must consider whether there was error under current
law. United States v. Rogers, 118 F.3d 466, 471-72 (6th Cir. 1997).


                                  12
In Booker, the Supreme Court held that any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by the plea of guilty
or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.            Booker, 125 S.Ct. at 756.            Here,
Count     1   of    the   indictment   alleged         a    conspiracy    involving   a
“detectable amount of methamphetamine” and no particular quantity
was specified in the plea agreement.              However, under Stafford, the
defendant effectively admitted the quantity of drugs used to
calculate his sentence by withdrawing his objection to the drug
calculations in the presentence report.                    Defendant’s admission of
drug quantity under Stafford constituted an admission of facts
under Booker.         Therefore, the district court’s reliance on the
amount of drugs attributed to the defendant in the presentence
report did not violate the defendant’s Sixth Amendment rights. See
Stafford, 258 F.3d at 476 (rejecting defendant’s Apprendi argument,
and noting that “Defendant’s factual admissions in this case
obviate       any   possible   concerns        about       the   proper   standard    of
proof.”).2
      However, the extent of defendant’s rights under Booker does
not end there.            Defendant was sentenced under the pre-Booker


      2
       Judge Clay states in his concurring opinion that it is inconsistent to
hold that plain error review of defendant’s Booker claim is available when
defendant’s Stafford admission forecloses any argument that his Sixth Amendment
rights were violated.      However, the starting point for determining the
availability of plain error review is not whether the claim has merit. Stines
indicates that where the defendant could not have intentionally relinquished or
abandoned a constitutional claim first recognized after sentencing, a forfeiture,
rather than a waiver, results, even if the plain error analysis ultimately
reveals that the district court committed no error. See Stines, 313 F.3d at 917;
United States v. Harris, No. 04-1589, 2005 WL 894581 at *2 (6th Cir. Apr. 19,
2005)(finding no Sixth Amendment error in light of Stafford admission after
applying plain error analysis).

                                          13
mandatory Sentencing Guidelines. Because 18 U.S.C. §3553(b)(1) has
been excised and severed under Booker, the district court erred by
treating the Guidelines as mandatory when it sentenced defendant.
United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005).           Thus,
in this respect, the first branch of the plain error test is
satisfied in this case.
      The second issue is whether the error was “plain.”         A “plain”
error is one that is “clear” or “obvious.”     Olano, 507 U.S. at 733-
34.   Where the law at the time of trial was settled and clearly
contrary to the law at the time of appeal, it is sufficient that an
error be plain at the time of appellate consideration.            Johnson,
520 U.S. at 468.      In this case, the Sentencing Guidelines were
mandatory when the defendant was sentenced, but Booker effectuated
a “clear” and “obvious” change in law by making the Sentencing
Guidelines advisory.     Thus, it was plain error for defendant to be
sentenced under a mandatory Guidelines scheme that has now become
advisory.     See Barnett, 398 F.3d at 525-26.
      The third prong is whether the error affects the defendant’s
substantial    rights.     Generally,   for   an   error   to    affect   a
defendant’s     substantial   rights,   the   error   must      have   been
prejudicial, such as error that caused the defendant to receive a
more severe sentence.      Olano, 507 U.S. at 734; United States v.
Swanberg, 370 F.3d 622, 629 (6th Cir. 2004).       However, in Barnett,
a panel of this court held that a presumption of prejudice arises
in cases where a defendant is sentenced under mandatory, rather
than advisory, Guidelines, and where the district court could have
imposed a lower sentence had it known that the Guidelines were
merely advisory.      Barnett, 398 F.3d at 528 (prejudice presumed


                                   14
because it would be exceedingly difficult for a defendant to show
that his sentence would have be different under an advisory
framework).
     The Barnett court noted that the presumption of prejudice
could be rebutted in a rare case where “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 regime.”         Id. at 529.        However, no such
evidence exists in the instant case. Defendant was sentenced prior
to the decisions in Blakely and Booker, and the district court did
not indicate what sentence would be imposed if the Guidelines were
regarded as advisory rather than mandatory. The case for remand is
particularly strong where, as here, the district court sentenced
defendant at the low end of the Guidelines range.                 See United
States v. Hamm, 400 F.3d 336, 340 (6th Cir. 2005).
     Because    defendant    was    sentenced   under    the      Sentencing
Guidelines as a mandatory, rather than advisory, sentencing scheme,
defendant’s substantial rights have been affected, and the third
prong of the plain error test has been satisfied.
     Finally, we must determine whether this case warrants the
exercise   of   our   discretion.    Rogers,    118   F.3d   at   473.    In
accordance with Barnett, “[w]e conclude that an exercise of our
discretion [to remedy plain error] is appropriate in the present
case.”   Barnett, 398 F.3d at 530.       This is a case where the error
may be regarded as seriously affecting the fairness, integrity, or
public reputation of judicial proceedings. Milan, 398 F.3d at 451.
As we noted in United States v. Oliver, 397 F.3d 369, 381 n. 3 (6th
Cir. 2005), we ought not assume that a defendant’s sentence under


                                    15
the new discretionary sentencing regime would be the same and
therefore that a remand is superfluous.


Conclusion
     For the foregoing reasons, we AFFIRM the district court’s
denial of a reduction for acceptance of responsibility under the
Guidelines. In addition, we VACATE defendant’s sentence and REMAND
for resentencing consistent with this opinion and with the Supreme
Court’s decision in Booker.




                                16
        CLAY, J., concurring in the judgment only. I fully agree that

Clements’ sentence must be remanded to the district court in light

of our holding in United States v. Barnett, 398 F.3d 516, 525 (6th

Cir. 2005).     I also agree that the district court did not err in

denying a downward departure in Clements’ sentence for acceptance

of responsibility.     I decline to join the majority opinion because

I   believe     that   it   inappropriately        relies     on   pre-Booker

jurisprudence to analyze Clements’ claim that he was sentenced in

violation of the Sixth Amendment.            Furthermore, because Clements’

sentence must be remanded in light of Barnett, the majority’s

extended Sixth Amendment discussion amounts to wholly unnecessary

dicta.     However, since the majority does address the issue, I am

compelled to note my disagreement with its analysis.

        In United States v. Stafford, 258 F.3d 465, 476 (6th Cir.

2001), this Court held, pre-Booker, that the failure to object to

the type and/or quantity of drugs set forth in the presentence

investigation report (“PSIR”) constitutes an admission of the type

and/or quantity therein.        The majority in the instant case applies

Stafford,     and   concludes    that   by    failing   to   object   Clements

effectively admitted the amount of methamphetamine set forth in the

PSIR.     This is undoubtedly a correct application of Stafford’s

holding.     However, the majority also concludes that Defendant’s

failure to object to the PSIR constituted a forfeiture, and not a

waiver, of his right to raise a Booker-based Sixth Amendment


                                        17
argument on appeal.          The conclusion that Clements’ failure to

object was both an admission and a forfeiture is illogical.                      It

does not make sense to state that Clements admitted the amount of

drugs used to calculate his sentence, but then also state that he

forfeited a Booker argument that we may review for plain error.

Booker specifically holds that “any fact . . . which is necessary

to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted

by the defendant . . .”            United States v. Booker, 125 S. Ct. 738,

756 (2005) (emphasis added).             Where the defendant has admitted the

facts used to calculate his sentence, there is no Booker problem,

thus there is nothing to review for plain error.                   This conclusion

is consistent with Stafford, which, although purporting to apply

plain error review, recognized that the district court did not

“commit[] any sort of error, plain or otherwise.”                   Stafford, 258

F.3d at 471.         In my opinion, if the majority wishes to apply

Stafford,     it    makes   much     more    sense   to   simply    conclude    that

Clements’     admission      to    the     amount    of   drugs    under   Stafford

forecloses any argument that his sentence violated the Sixth

Amendment.         See United States v. Harris, No. 04-1589, 2005 WL

894581   at   *2     (6th   Cir.    Apr.    19,   2005)   (citing    Stafford    and

concluding that the defendant’s failure to object to the PSIR means

that “there is no Sixth Amendment error in the present case”).

     Furthermore, in addition to disagreeing with the way in which


                                            18
the majority applies Stafford, I am not at all convinced that

Stafford and the other cases cited by the majority actually survive

Booker.       Once   again,   because     Barnett   conclusively   resolves

Clements’ sentencing claim, I believe it is entirely unnecessary to

rely on pre-Booker precedent such as Stafford and its progeny.

        Because the majority’s conclusion that Clements’ failure to

raise    a   Sixth   Amendment   argument    before   the   district   court

constitutes a forfeiture that may be reviewed for plain error is

illogical in light of the conclusion that Clements’ failure to

object to the PSIR constituted an admission under Stafford, and is

superfluous dicta, I respectfully decline to join the majority’s

opinion.




                                     19
