               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0762n.06
                          Filed: December 16, 2008

                                           No. 07-6008

                          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
MARTEDIS McPHEARSON,                                     )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: BOGGS, Chief Judge; MERRITT and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant appeals his conviction by jury on one count of possession with intent to distribute

approximately 4.9 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and sentence of

140 months of imprisonment. Because the district court did not abuse its discretion in denying

defendant’s request to admit photographs and medical records at trial; did not violate defendant’s

Sixth Amendment right to trial by jury when it made factual findings that increased defendant’s

sentence within the statutory range; and correctly refused to sentence defendant under amendment

706, as amended by amendments 711 and 715, to the United States Sentencing Guidelines Drug

Quantity Table in § 2D1.1, which had not yet been enacted at the time of sentencing, we affirm



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defendant’s conviction and sentence, but remand to the district court to consider defendant’s pending

motion to reduce his sentence under the discretionary retroactive application of the amendments to

amendment 706.

                                                 I.

       On November 15, 2004, a grand jury in the Western District of Tennessee returned a seven-

count indictment against defendant Martedis McPhearson and co-defendant Elton Nance. The

indictment charged McPhearson with possession with intent to distribute approximately 0.3 grams

of crack cocaine on August 16, 2003 (Count One); approximately 0.3 grams of crack cocaine on

August 26, 2003 (Count Two); and approximately 0.4 grams of crack cocaine on September 2, 2003

(Count Three), all in violation of 21 U.S.C. § 841(a)(1); aiding and abetting, together with Nance,

of possession with intent to distribute approximately 4.9 grams of crack cocaine on December 12,

2003, in violation of 21 U.S.C. §§ 841(a)(1) and (2) (Count Four); felon in possession of a firearm

shipped in interstate commerce on December 12, 2003, in violation of 18 U.S.C. § 922(g) (Count

Five); and aiding and abetting, together with Nance, of possession of a firearm in furtherance of a

drug trafficking crime on December 12, 2003, in violation of 18 U.S.C. §§ 924(c)(1)(2) and 2 (Count

Seven).

       McPhearson was tried by jury on March 26, 2007. At trial, Investigator Wes Stilwell of the

Jackson Police Department, Metro Narcotics Unit, testified that he received a tip from an informant,

Terry Wayne Curry, that an individual had been selling crack cocaine at McPhearson’s residence.

Stilwell conducted surveillance and observed foot traffic to and from the home. Stilwell paid Curry


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to conduct three controlled buys of small quantities of crack cocaine from the residence in August

and September 2003. Curry, through his testimony, verified that he made three controlled purchases

from McPhearson.      According to Stilwell, one-tenth of a gram of crack cocaine sells for

approximately $10 on the street and is known as a “dime bag.”

       Charles Mathis of the Jackson Police Department’s Gang Unit testified that he and his

partner, Christopher Wiser, went to McPhearson’s home on December 12, 2003, to serve an arrest

warrant on McPhearson. McPhearson answered the door, and Mathis arrested him. According to

Mathis, Wiser found a “plastic baggie of crack” in McPhearson’s pocket.

       Wiser verified that he assisted in McPhearson’s arrest on December 12, 2003. He also

confirmed that he searched McPhearson and found “a clear plastic baggie with what appeared to be

crack cocaine in his right front pocket.”

       Jessica Marquez of the Tennessee Bureau of Investigation (“TBI”) testified as an expert

witness in the field of forensic chemistry and the identification of controlled substances. According

to Marquez, the three substances from the controlled buys consisted of 0.3 grams, 0.3 grams, and 0.4

grams of crack cocaine. Brian Eaton, a former special agent/forensic scientist with the TBI, testified

as an expert witness in the field of forensic chemistry. According to Eaton, the substance submitted

by Mathis after McPhearson’s arrest in December 2003 consisted of 4.9 grams of crack cocaine.

       On rebuttal, Stilwell testified that small, plastic zip-lock bags are typically used to package

and resell small quantities of controlled substances, such as cocaine and marijuana. Wiser also

testified on rebuttal that he found small plastic bags that are commonly used to package narcotics


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in more than one location during his search of McPhearson’s residence in December 2003. He also

found metal scales and digital scales, of the type used to weigh small quantities of drugs.

       Lieutenant Patrick Willis of the Jackson Police Department testified that McPhearson, in a

statement taken after police searched his house in December 2003, stated: “The officers went in my

right front pocket and found crack cocaine. I had bought $100 worth of crack cocaine earlier this

morning.” On rebuttal, Stilwell had testified that nowhere, at that particular time, could an

individual in Madison County, Tennessee, purchase 4.9 grams of crack cocaine for $100. Willis also

testified that he participated in the search of McPhearson’s living room in December 2003, that he

observed small zip-lock bags located inside a black shaving bag, and that the bags are “commonly

used to sell small quantities of crack cocaine.”

       McPhearson testified in his defense. He conceded that the 4.9 grams of crack cocaine

charged in Count Four was found in his pocket in December 2003 and belonged to him. According

to McPhearson, however, he did not intend to sell it; rather, the crack cocaine was for “personal

use,” specifically, to alleviate the pain associated with injuries he sustained from an automobile

accident on December 12, 2002, one year prior to his arrest date. McPhearson explained that during

the accident, he:

       went through the windshield and hit the middle of the street, breaking both my legs,
       both my arms, my collarbone, my pelvic bone, my tailbone, my rears. My right foot
       was crushed. My liver and spleen was bleeding. My lungs was collapsed. And I
       also had damage to my liver.




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He stated that because of his injuries, he received treatment at two nursing homes until mid-April

2003. According to McPhearson, he treated his pain with both legal and illegal drugs, including

cocaine and marijuana. At the time of trial, McPhearson stated that he was “still . . . in pain a lot.”

       McPhearson’s mother, Mary Collier, substantiated McPhearson’s testimony relating to the

automobile accident. She explained on direct examination that:

       [h]e was broken up. Everything was broken. Every bone was broke in his body
       except his neck and his back. And he had both legs broke. Pelvis bone broke. His
       butt area was broke. His spleen was broke. His liver was broke. And his ankles was
       crushed into powders. And his wrist was broke. And like I said, mostly everything
       was broke except his – And they had him on a life support machine.

                                                ***

       They – they had wrote him off to be dead. And I had talked to the doctors, and they
       said they had kept him sedated, drugged up, because they knew he was in pain
       because he was – he was so swollen until he looked like he was pregnant. His
       stomach was just sticking out.

When McPhearson left the nursing home,

       [h]e was still in a wheelchair. We had to take him most of the time where he wanted
       to go. And he mostly was in a wheelchair.

       And then he got up and started walking with a cane, and he was – he was – still
       couldn’t hardly get around because he was – he got a big lump up under his heel part
       where they couldn’t put the bones back together. It’s just powders. They’re chipped
       up into like powder, like, and they couldn’t put it back together.

       When defense counsel sought to admit photographs of McPhearson that were allegedly taken

a week or two after the accident, the government objected on relevance grounds. In support of its

request to admit the photographs, defense counsel stated at side bar:



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          the thing that makes [the photographs] relevant is if he suffered that much of a
          catastrophic injury back in December or January, whenever those pictures were
          taken, he clearly would still be in pain, according to his testimony, two, six or even
          – even today he says he’s still having trouble.

The district judge responded: “But you can’t tell that from these pictures. All this shows is a large

man in a hospital bed, and that’s really about it. It doesn’t prove what you want it to prove.”

Accordingly, the judge sustained the objection but permitted defense counsel to make an offer of

proof. Defense counsel then stated that: “These are pictures of Mr. McPhearson. I want to state that

for the record.” The judge clarified: “Pictures of what Mr. Brown [defense counsel] describes is Mr.

McPhearson.” Defense counsel then stated: “Well, Your Honor, without an offer of proof, I would

like to have the defendant come up and identify that that’s him” to which the judge responded: “All

right.”

          Collier then resumed her testimony, stating that McPhearson’s physical abilities were more

limited in December 2003, a year after the accident, than they were at the time of the trial in 2007,

and that in 2003 he traveled by walker, wheelchair, and then cane to catch a bus to therapy. She also

agreed that McPhearson was “a person who was in pain.”

          After the government cross-examined Collier, defense counsel requested that the medical

records associated with McPhearson’s accident be admitted. The judge denied the request but again

allowed defense counsel to make an offer of proof. Upon defense counsel’s request, the judge

permitted counsel to “file [the medical records] as an exhibit at the sentencing hearing, if there’s to

be a sentencing hearing.”



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       The jury convicted McPhearson on Count Four, aiding and abetting, together with Nance,

of possession with intent to distribute approximately 4.9 grams of crack cocaine on December 12,

2003, in violation of 21 U.S.C. §§ 841(a)(1) and (2). Because the jury could not reach a verdict on

Counts One, Two, and Three, charging defendant with possession with intent to distribute 0.3 grams,

0.3 grams, and 0.4 grams of crack cocaine, respectively, the district court declared a mistrial as to

those counts and dismissed them upon the government’s motion.1

       The United States Probation Office prepared a presentence investigation report (“PSI”).

Paragraph 5 of the PSI set forth the facts surrounding co-defendant Nance, a firearm, and marijuana

found during the December 12, 2003, execution of the search warrant at McPhearson’s home:

       5. During the warrant search, officers found a small, locked safe in a middle
       bedroom of the residence. When asked by one of the officers if he knew which of the
       several keys they had found might go to the safe, Mr. Nance responded by correctly
       identifying the key which ultimately unlocked the safe. Inside the safe, officers
       found a firearm, identified as a Husqvarna, .380 caliber semiautomatic pistol, serial
       #68986. The weapon was loaded with four (4) .380 caliber cartridges in the
       magazine. An additional six (6) .380 caliber cartridges were found in the living room
       of the residence. A small amount of marijuana (21.9 grams) was also found in the
       home. Subsequent to his arrest, Mr. Nance, after being Mirandized, voluntarily gave
       a signed and witnessed statement to JPD Lt. Patrick Willis and former JPD Officer
       A. Willis. In his statement, Mr. Nance admitted that, on the Monday prior to his
       arrest, he was at Martedis McPhearson’s residence when there was a knock at the
       door. According to the defendant’s statement, a female who was also in the home
       asked Mr. Nance to “put up” a black automatic weapon (the same weapon found by
       officers during the warrant search) before she answered the door. Mr. Nance
       responded by picking up the firearm, at which time he discovered that the safety was
       not engaged. When he reportedly tried to engage the safety, the magazine fell out of
       the weapon, with two (2) bullets falling out of the magazine. After placing the


       1
       The court did not instruct the jury to return a verdict on the firearm charges in Counts Five
and Seven, and those counts were dismissed at sentencing upon the government’s motion.

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       bullets back into the magazine and the magazine back into the weapon, Mr. Nance
       reportedly placed the firearm into the “box” (safe). Defendant Nance admitted that
       his fingerprints would be on that firearm. Mr. Nance specifically denied any
       knowledge of the marijuana which was found in the residence. He also denied any
       involvement in crack cocaine trafficking and any knowledge of such activity by Mr.
       McPhearson.[2]

In the PSI, the probation officer calculated McPhearson’s sentence under the 2006 United States

Sentencing Guidelines and attributed to him the 0.3, 0.3, and 0.4 grams of crack cocaine resulting

from the three buys charged in Counts One, Two, and Three but that were dismissed upon the

government’s motion following a mistrial; the 21.9 grams of marijuana found at the residence; and

the firearm found at the residence.

       At the sentencing hearing, the district judge determined, over McPhearson’s objections, that

he should apply the Sentencing Guidelines in effect at the time of sentencing, rather than continue



       2
         On April 6, 2007, we affirmed Nance’s conviction by jury of being a felon in possession of
a firearm and sentence, based on the events of December 12, 2003. United States v. Nance, 481 F.3d
882 (6th Cir. 2007). In Nance, we stated:

       Terry Wayne Curry . . . testified that he had seen Nance open the same safe using a
       key on a prior occasion. Curry also testified that he had seen a firearm at the
       residence on a prior occasion that was similar to the one recovered from the safe.
       Lieutenant Willis also testified that, after Nance was arrested, he provided a
       statement to the police in which he admitted handling the firearm in question. Nance
       stated that four days prior to his December 12 arrest he had been asked to put the gun
       away by Nicole Parker, who was at the house, and that he did so because children
       were sometimes at the house. Nance explained in his statement that his fingerprints
       would therefore be found on the gun and the safe because of his handling of it four
       days prior. Nicole Parker testified that she had never handled the firearm nor asked
       Nance to put the firearm away.

Id. at 884-85.

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the sentencing or apply the expected, but yet-to-be-enacted, “crack cocaine amendment,”

Amendment 706, as amended by amendments 711 and 715, to the United States Sentencing

Guidelines Drug Quantity Table, U.S.S.G. § 2D1.1(c)(1)-(14); that the 0.3, 0.3, and 0.4 grams of

crack cocaine resulting from the three buys by the confidential informant should be attributed to

McPhearson; and that a two-level enhancement for possession of a firearm during a drug trafficking

crime was proper.

       Regarding McPhearson’s objection to the court’s application of the current Sentencing

Guidelines, the judge stated:

       The defendant impliedly asks me to apply the guidelines as they will be, perhaps, in
       November. Alternatively, if I don’t want to do that, the defendant sort of impliedly
       asked that I postpone this hearing until after the target date for the guidelines
       amendments to see what happens.

       As a matter of policy, this court has decided to apply the guidelines that are in effect.
       There’s two reasons for that. There are two reasons for that. Number one, we don’t
       know that the guidelines will be amended. Now, it’s true that the Congress has rarely
       rejected guidelines proposed amendments, but I can’t presume Congressional action
       three months from now, and I don’t want to do that.

       There’s another reason, and that is that if a proposed guideline is offered, will the
       court have to then postpone all sentencings that might be affected by that guideline
       until after the Congress has acted on it? And if that’s true, then we’ll probably only
       have sentencings once a year. If a guideline amendment is proposed, we’ll say, in
       December, will the court have to wait until, say, the following November to sentence
       defendants whose guidelines may be amended?

       In addition, there’s no assurance that the guidelines will be retroactive, even though
       I think that language probably is – if the guidelines passes, that probably will pass,
       too.

       But I can’t make those presumptions, so I decline to accept the guideline proposal,
       and I’m going to use the guidelines that are in existence today.

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As to the firearm enhancement, the judge explained:

       The court has to keep in mind that this is a guideline application of a firearm
       enhancement. This is not a conviction for use of a firearm during and in furtherance
       of a drug-trafficking crime, and the rules are different. It’s likely true that there was
       no evidence that this defendant used this firearm in furtherance of a drug-trafficking
       crime, but that’s not the issue before the court today.

       If a firearm was possessed during the drug crime, the court is to add two levels unless
       the defendant shows that it was clearly improbable that the firearm was in furtherance
       of the drug-trafficking crime. So I have a different standard than did the government
       to show beyond a reasonable doubt that the defendant used the firearm in furtherance
       of a drug-trafficking crime.

       Count 4, the count of which the defendant is convicted, charges him and Mr. Nance
       with aiding and abetting each other in the possession of this 4.9 grams of crack
       cocaine with intent to distribute. Even though Mr. Nance may have put the gun in
       the box, even though Mr. Nance may have been the only one with the key to the box,
       the guideline seems to indicate that if the firearm was possessed, not necessarily by
       this defendant but by an aider and abettor or a codefendant, then the firearm
       enhancement is to be applied unless the court finds that it’s clearly improbable that
       the firearm could have been used or was used in furtherance of the drug-trafficking
       crime.

       Since it is possible, perhaps likely, that if someone had tried to steal the drugs of Mr.
       McPhearson and Mr. Nance or had tried to steal the money of Mr. McPhearson and
       Mr. Nance, that Mr. Nance could have obtained easy access to that firearm since it
       was in close proximity to the drugs, that it is not clearly unlikely that this firearm was
       related to the possession of drugs with intent to distribute. So the court finds that the
       firearm enhancement is properly applied.

       The court sustained McPhearson’s objection that he should not be held responsible for the

21.9 grams of marijuana, explaining:

       There’s no need for me to even rule on the marijuana that was found in the box
       because it is such a relatively small amount that it doesn’t affect the guidelines, in
       any event. 21.9 grams is less than an ounce of marijuana. And compared to 5.9


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       grams of crack cocaine, it gets lost in the classification. So I’m not going to rule on
       the marijuana. I’m not going to consider the marijuana.

       So I guess I am, in effect, Mr. Brown [defense counsel], granting your objection to
       including the marijuana because I’m not going to consider it.

       We still have 118 kilograms of marijuana equivalence from the 5.9 grams of crack
       cocaine.

       The court concluded that the probation officer had correctly calculated the Guideline range.

It then considered the sentencing factors set forth in 18 U.S.C. § 3553, after hearing from defense

counsel and McPhearson. The court sentenced defendant to 140 months of imprisonment, followed

by a three-year term of supervised release. McPhearson timely appealed.

       On April 23, 2008, while the appeal was pending, McPhearson filed a motion to reduce his

sentence under the crack cocaine amendment, pursuant to 18 U.S.C. § 3582(c). On October 6, 2008,

the district court entered an order holding the motion in abeyance for lack of jurisdiction until

resolution of this appeal.

                                                 II.

       McPhearson first contends that the district court denied him an adequate defense when it

refused his request to admit medical records and photographs relating to his automobile accident.

McPhearson asserts that the records and photographs supported his theory that he had no intent to

distribute crack cocaine; rather, he suffered extensive injuries from the automobile accident and used

the crack cocaine to medicate the pain resulting from those injuries. McPhearson’s contention is

without merit.



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        A district court’s evidentiary rulings are reviewed for abuse of discretion. United States v.

Blackwell, 459 F.3d 739, 752 (6th Cir. 2006). “[T]he Constitution guarantees criminal defendants

a meaningful opportunity to present a complete defense.” Id. (internal citations and quotations

omitted). However, “the Constitution permits judges to exclude evidence that is repetitive . . . only

marginally relevant or poses an undue risk of . . . confusion of the issues.” Id. at 753 (citation

omitted). Further, “even where a district court erroneously excludes defense evidence, whether the

exclusion of [evidence] violated [defendant’s] right to present a defense depends upon whether the

omitted evidence[,] [evaluated in the context of the entire record] [,] creates a reasonable doubt that

did not otherwise exist.” Id. (citation omitted). See also United States v. Miller, 115 F.3d 361, 365

(6th Cir. 1997) (“[E]ven if the trial court had excluded additional relevant defense evidence which

was more probative than prejudicial, no reversible error would have resulted because, on the overall

instant record, no reasonable doubt exists about [defendant’s] guilt.”) (citing United States v. Agurs,

427 U.S. 97, 112-13 (1976) and FED . R. EVID . 103(a)).

        As a threshold matter, we note that McPhearson did not provide the photographs or medical

records to this court. Upon inquiry to the district court, we obtained the photographs, but the district

court has no medical records.

        Further, although the district court expressly permitted McPhearson’s counsel to authenticate

the photographs at trial, no testimony in the partial transcripts provided to us confirms that the

photographs (or medical records) were ever authenticated. We obtained the full trial and sentencing

transcripts, and nowhere in the transcripts did defense counsel attempt to authenticate the


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photographs or the medical records. Evidence must be authenticated prior to admission. Hartley

v. St. Paul Fire & Marine Ins. Co., 118 F. App’x 914, 921 (6th Cir. 2004) (holding that “[t]he district

court was within its discretion when it refused to accept the unauthenticated photographs into

evidence as authentication is a necessary precondition to admissibility.”) (citing FED . R. EVID . 901

and United States v. Blackwell, 694 F.2d 1325, 1329-30 (D.C. Cir. 1982)).

       Notwithstanding these fundamental errors by defendant, we also conclude that the district

court did not abuse its discretion in excluding the photographs and, accordingly, did not deny

McPhearson the right to present a meaningful defense. Federal Rule of Evidence 402 permits the

introduction only of relevant evidence. Federal Rule of Evidence 401 defines relevant evidence as

“evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence.”

The photographs allegedly taken of McPhearson in the hospital in December 2002 could tend to

make it more probable that McPhearson had incurred recent, substantial injury at the time the

photographs were taken. However, that fact is not contested – both parties agree that McPhearson

was involved in an automobile accident in December 2002. The government did not dispute that

contention at trial. Rather, McPhearson sought to admit the photographs to demonstrate that he

suffered pain at the time he committed the alleged criminal acts. The photographs are not relevant

for that purpose. A jury cannot reasonably conclude, from a visual of “a large man in a hospital

bed,” not to mention a visual taken in December 2002, that McPhearson experienced pain in

December 2003.


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       Similarly, although the medical records might document McPhearson’s treatment relating

to the automobile accident (even though the contents and dates of the records are unknown because

McPhearson has not provided them on appeal), it cannot be assumed, as with the photographs, that

the records provide evidence that McPhearson experienced pain in December 2003.

       Defendant’s evidence to establish pain was precisely the evidence that the district court

admitted at trial – testimony by McPhearson and his mother. Both McPhearson and his mother

testified about the extent of McPhearson’s injuries and the pain that he suffered as a result of the

automobile accident. The district court thus did not foreclose McPhearson from presenting

testimonial evidence of the theory on which his defense relied.

       Notably, McPhearson failed to present any evidence to the jury about the medicinal effect,

if any, that crack cocaine would have on his pain. Nor did he attempt to call, as witnesses, treating

physicians, or any physician for that matter, who might have provided competent medical testimony

about the pain McPhearson allegedly experienced in December 2003. In essence, the jury simply

chose not to believe that the crack cocaine McPhearson admittedly possessed in December 2003 was

intended to alleviate his pain.

       Finally, even if the district court erroneously excluded the photographs and medical records,

it did not violate McPhearson’s right to present a defense because, based on the overall record, no

reasonable doubt exists about McPhearson’s guilt. See Miller, 115 F.3d at 365.

       The evidence of guilt was overwhelming. An informant and law enforcement officer testified

that McPhearson sold crack cocaine to the informant three times in August and September 2003.


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The officer had previously observed foot traffic to and from McPhearson’s residence where the sales

were made. When arrested, McPhearson possessed 4.9 grams of crack cocaine. McPhearson

admitted that the 4.9 grams of crack cocaine belonged to him. According to testimony, 4.9 grams

could be an amount possessed for distribution. Plastic bags of the kind used to distribute small

quantities of controlled substances were found at McPhearson’s residence. Scales of the type used

to weigh small quantities of controlled substances for distribution were also found. A tenth of a

gram of crack cocaine can be sold for $10 on the street. Contrary to McPhearson’s statement to

officers that he purchased the 4.9 grams of crack cocaine for $100, there was testimony that 4.9

grams of crack cocaine could not be purchased for $100. Thus, even if the district court erroneously

excluded the photographs and medical records, we conclude that the error is not reversible.

                                                III.

       Next, McPhearson contends that the district court’s sentence was procedurally unreasonable

because the district court made “factual determinations that were not passed on by the jury.”

Specifically, McPhearson contends that in calculating the Guideline range, the district court

improperly attributed to him (1) the three quantities of crack cocaine charged in Counts One, Two,

and Three that were dismissed upon the government’s motion following mistrial; (2) the firearm

found at his residence; and (3) 21.9 grams of marijuana.

       McPhearson’s contention that the district court erroneously attributed 21.9 grams of

marijuana to him in calculating his sentence is baseless. In fact, the court sustained McPhearson’s

objection at the sentencing hearing and did not consider the marijuana when calculating the sentence.


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        As to the remaining factual findings, McPhearson does not contend on appeal that the district

court lacked sufficient evidence to support its factual findings; rather, he makes a legal argument that

this Circuit’s case law, although “against him on this point,” is “predicated upon an incorrect view

of the Sixth Amendment and argues in good faith for a change in this Circuit’s law.” Specifically,

McPhearson suggests that a district court is not permitted to make factual findings which increase

a sentence’s severity because to do so violates the Sixth Amendment right to jury trial.

        McPhearson cites no authority, nor does he make any novel arguments, that would cause us

to overturn our prior decisions rejecting identical arguments that all factual findings affecting a

sentence’s severity must be made by a jury beyond a reasonable doubt. See United States v. Sexton,

512 F.3d 326 (6th Cir. 2008), rehearing en banc denied, 2008 U.S. App. LEXIS 12162 (6th Cir.

May 13, 2008), cert. denied sub nom. Romans v. United States, 129 S. Ct. 304 (2008). In Sexton,

we held that “[s]ince defendants were sentenced under an advisory Guidelines scheme, the maximum

statutory penalty that the district court could impose was determined by the statute of conviction,

rather than by a Guidelines range calculated using only jury findings.” Id. at 330. We explained

that:

        [t]his court has squarely rejected defendants' contention that Booker and Blakely v.
        Washington, 542 U.S. 296 (2004), require all factual findings affecting a sentence's
        severity to be made by a jury beyond a reasonable doubt. In United States v. Cook,
        453 F.3d 775, 777 (6th Cir. 2006), this court explained that “[Booker] has no bearing
        on advisory guideline calculations,” but, instead, applies only to judicially found facts
        used “to impose a mandatory enhancement.” Where, as here, a district court
        understands that the Guidelines are only advisory, judicial fact-finding done by the
        preponderance of the evidence is permissible. As we stated in United States v.
        Mickens, 453 F.3d 668, 673 (6th Cir. 2006) (collecting cases), “[b]y now, it is well
        established that the preponderance standard does not violate Booker, so long as the

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       trial court appreciates that the guidelines are advisory, not binding.” See also United
       States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005) (“Booker did not eliminate
       judicial fact-finding”). Moreover, nothing in the Supreme Court's recent ruling in
       Rita v. United States, 127 S. Ct. 2456 (2007), changes our understanding.

Id. at 329-30.

       In fact, we recently vacated and remanded a sentencing decision to the district court because

the court had refused to consider imposing a firearm enhancement simply because “the jury was

asked to find nothing about that.” United States v. Driver, 535 F.3d 424, 434 (6th Cir. 2008). In

remanding the sentence in Driver, we instructed the district court to reconsider application of the

two-level enhancement for possession of a dangerous weapon because testimony was sufficient for

the court to determine, by a preponderance of the evidence, that Driver possessed a dangerous

weapon while engaged in a drug conspiracy and because “[t]he district court’s reason for not

applying the enhancement – that there was no jury finding that Driver possessed a dangerous weapon

– has since been discredited by the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), and subsequent decisions of this court.” Driver, 535 F.3d at 434 (citing Sexton, 512 F.3d

at 329-30). See also Harris v. United States, 536 U.S. 545, 567 (2002) (holding that juries need only

determine the “outer limits” of a sentence, leaving the court free to make factual determinations that

increase the sentence within the jury-authorized range); United States v. Thompson, 515 F.3d 556,

565 (6th Cir. 2008) (collecting citations showing Harris’s continuing viability); United States v.

Love, No. 06-1581, 2008 U.S. App. LEXIS 17365, *3-*6 (6th Cir. Aug. 12, 2008) (unpublished)

(rejecting defendant’s contention that the Sixth Amendment, as interpreted by Apprendi v. New



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Jersey, 530 U.S. 466 (2000), forbade sentencing court from finding drug quantities that the jury had

not designated by special verdict).

       Here, the district court sentenced McPhearson to 140 months of imprisonment under an

advisory Guidelines scheme. The maximum statutory penalty that the district court could have

imposed based on McPhearson’s conviction for distributing 4.9 grams of crack cocaine was 20 years

of imprisonment, or 240 months. 21 U.S.C. § 841(b)(1)(C) (“In the case of a controlled substance

in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not more than 20

years.”); § 812(b)(3) (treating crack cocaine as a Schedule II controlled substance). Because

McPhearson’s 140-month sentence did not exceed the 20-year maximum statutory penalty, the

district court committed no error.

                                                 IV.

       Finally, McPhearson contends that the district court erred in failing to continue the sentencing

date until November 2007 based on his expectation that Congress would, at that time, have enacted

retroactive amendment 706, as amended by amendments 711 and 715, to the Sentencing Guidelines

Drug Quantity Table in § 2D1.1 (“crack cocaine amendment”). In the alternative, he contends that

the district court erred in failing to apply the amendment prospectively.

       The argument is without merit. McPhearson concedes that, at the time of sentencing, the

crack cocaine amendment had not yet been enacted. Therefore, it would have been improper had

the district court applied the not yet enacted crack cocaine amendment at the time of sentencing. See

18 U.S.C. § 3553(a)(4)(A)(ii) (providing that a district court should apply the Sentencing Guidelines


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United States v. McPhearson


“in effect on the date the defendant is sentenced.”); § 3553(a)(5)(B) (providing that a district court

should apply Guidelines policy statements “in effect on the date the defendant is sentenced.”);

U.S.S.G. § 1B1.11(a) (“The court shall use the Guidelines Manual in effect on the date that the

defendant is sentenced.”). McPhearson also fails to support his contention that the district court was

required, or that it would have even been appropriate, to continue a sentencing hearing based on

sheer speculation about the legislature’s future conduct.

       Ultimately, McPhearson’s request for relief is moot for purposes of this appeal. He has filed

a motion in the district court requesting that his sentence be reduced based on the amendment,

pursuant to 18 U.S.C. § 3582(c). On October 6, 2008, the district court entered an order holding the

motion in abeyance for lack of jurisdiction pending this court’s resolution of the appeal.

       18 U.S.C. § 3582(c)(2) permits a district court, upon motion, to reduce a term of

imprisonment “based on a sentencing range that has subsequently been lowered by the Sentencing

Commission, pursuant to 28 U.S.C. § 994(o), . . . after considering the factors set forth in section

3553(a) to the extent that they are applicable, if such a reduction is consistent with the applicable

policy statements issued by the Sentencing Commission.” Section 1B1.10 of the Guidelines

identifies the crack cocaine amendment as retroactive and articulates the proper procedure for

applying the amendment to cases in which defendants have already been sentenced. Section 1B1.10

makes clear that a court may, in its discretion, reduce a sentence based on the retroactive

amendments listed; that the authorization of the discretionary reduction does not entitle a defendant

to a reduction as a matter of right; and that it “does not otherwise affect the lawfulness of a


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United States v. McPhearson


previously imposed sentence.” In determining whether to grant a motion for reduction of sentence

under § 3582(c), the district court must consider the § 3553(a) sentencing factors, the danger posed

to the community by reducing the defendant’s term of imprisonment, and the defendant’s post-

sentencing conduct. Section 1B1.10, Application Notes 1(B)(i)-(iii). Thus, the decision to grant or

deny defendant’s motion requires factual findings that are more appropriately within the province

of the district court.

        In United States v. Ursery, 109 F.3d 1129 (6th Cir. 1997), we considered whether to vacate

a sentence or remand the case to the district court because of a change in the Sentencing Guidelines

after the defendant was sentenced. Id. at 1137. Specifically, while the case was pending before the

Supreme Court, the Sentencing Commission adopted Amendment 516 to U.S.S.G. § 2D1.1(c) which,

instead of treating each plant of marijuana as equivalent to one kilogram, assigned a presumptive

weight of one hundred grams of marijuana to each plant. Id. The amendment potentially reduced

defendant’s base offense level in Ursery from 26 to 16. Id. In determining how a district court

should proceed after a change in the Sentencing Guidelines, the Ursery court stated:

        As defendant correctly observes, he is entitled to have his case remanded to the
        district court for the opportunity to present an 18 U.S.C. § 3582(c)(2) motion for a
        reduction in sentence based on Amendment 516, which changes the equivalent
        weight of 142 plants of marijuana, and, thus, lowers the guideline range. However,
        this does not mean that the current sentence is vacated. The current sentence is not
        erroneous, because it was properly imposed based on the guidelines in effect at the
        time of sentencing. 18 U.S.C. § 3553(a)(4)(A). Moreover, a district court has the
        discretion to deny a section 3582(c)(2) motion, even if the retroactive amendment has
        lowered the guideline range. See United States v. LaBonte, 70 F.3d 1396, 1410-11
        (1st Cir. 1995), cert. granted, 518 U.S. 1016 (1996); United States v. Coohey, 11
        F.3d 97, 101 (8th Cir. 1993); United States v. Wales, 977 F.2d 1323, 1327-28 (9th
        Cir. 1992).

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       In dealing with a similar amendment to the LSD guideline, the court in Coohey
       stated:

               Section 1B1.10 does not mandate that Amendment 488 be applied
               retroactively, but instead gives the sentencing court the discretion so
               to apply it. Accordingly, rather than vacate Coohey's sentences, we
               remand the case to the District Court in order to allow that court to
               consider whether, in the exercise of its discretion, Amendment 488
               should be applied retroactively to reduce Coohey's sentences.

       11 F.3d at 101. In Wales, the court noted that ordinarily a defendant must first
       petition the district court for a sentence reduction, but if the issue is raised for the
       first time on appeal, the court of appeals may remand for consideration of the request.
       977 F.2d at 1328 n.3. We believe the same procedure should be followed in the
       present case. This case must be remanded to the district court to allow defendant to
       make a § 3582(c)(2) motion for a reduction in sentence and to allow the district court
       to consider, in the exercise of its discretion, whether Amendment 516 should be
       applied retroactively to reduce defendant's sentence.

Id. at 1137-38. Based on Ursery, we recently held that “[w]hen an amendment like amendment 706

applies retroactively under § 1B1.10(c), the proper procedure is for this court to affirm the sentence

but to remand for consideration of whether the prisoner is entitled to a sentence reduction under §

3582(c).” United States v. Poole, 538 F.3d 644, 646 (6th Cir. 2008) (affirming defendant’s sentence

but remanding for consideration of his entitlement to a sentencing reduction under § 3582(c), §

1B1.10(c), and amendment 706). Accordingly, we remand the case to the district court for

consideration of McPhearson’s pending motion under 18 U.S.C. § 3582(c) to reduce his sentence.

                                                 V.

       For the reasons stated, we affirm defendant’s conviction and sentence, but remand for

consideration of McPhearson’s pending motion to reduce sentence.


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       MERRITT, Circuit Judge, dissenting. For the same reasons given in my dissenting

opinions in the Sexton and Romans cases relied upon by Judge Griffin’s opinion in Section III, I

disagree with the process of ratcheting up the guideline sentence based on judge-found facts outside

the facts found by the jury verdict. The only convicted conduct in this case was the jury’s verdict

that the defendant possessed one-fifth of an ounce of cocaine base. This convicted offense conduct

carries a sentence much less than 12 years. I would reverse the sentence and instruct the court below

to impose a sentence based on offense conduct no greater than the facts established by the jury

verdict.




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