                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0332n.06
                             Filed: April 28, 2005

                                           No. 04-5993

                          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
NICHOLAS DEVON GOFF,                   )
                                       )                         OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: NELSON and MOORE, Circuit Judges, and RESTANI,* Judge.

       KAREN NELSON MOORE, Circuit Judge. The facts of this case are not in dispute. See

Appellee Br. at 2. Defendant-Appellant Nicholas Devon Goff pleaded guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g). The probation office recommended that

Goff’s sentence be computed using Base Offense Level 20, as the probation office concluded that

Goff’s prior robbery conviction qualified as a crime of violence for purposes of U.S. SENTENCING

GUIDELINES MANUAL (“U.S.S.G.”) § 2K2.1(a)(4)(A). Goff objected to this recommendation,

arguing that under Blakely v. Washington, 124 S. Ct. 2531 (2004), whether his prior robbery

conviction qualified as a crime of violence was a fact that must be either admitted by him or proved




       *
         The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
to a jury beyond a reasonable doubt.1 Because the jury was not asked to decide whether his robbery

conviction qualified as a crime of violence, Goff contended that his sentence should be calculated

using Base Offense Level 14, pursuant to U.S.S.G. § 2K2.1(a)(6), rather than Base Offense Level

20.

       The district court denied Goff’s objection, stating that it did not believe Blakely applied to

the U.S. Sentencing Guidelines (“Guidelines”):

                All right, let me state for the record — I’ve done this in every other case, so
       I need to do it in this case as well. It’s this court’s judgment that the federal
       sentencing guidelines are still applicable. Until a definitive opinion from the Sixth
       Circuit Court of Appeals or the U.S. Supreme Court tells me otherwise, I plan to
       continue following the guidelines.
                It is my prediction that the Supreme Court will distinguish the federal
       sentencing guidelines from the Washington state scheme found improper in Blakely
       or, alternatively, that one of the Supreme Court justices will change his or her mind
       in order to uphold the federal sentencing guidelines. If I’m right on that, then none
       of mine will have to be resentenced. If I’m wrong on that, all of them will have to
       be resentenced. And I guess we’ll just wait and see what the outcome is.

Joint Appendix (“J.A.”) at 28 (Sentencing Hr’g) (emphasis added). Goff appealed. Following

submission of the parties’ briefs, the U.S. Supreme Court issued its decisions in United States v.

Booker, 125 S. Ct. 738 (2005), and Shepard v. United States, 125 S. Ct. 1254 (2005). We requested

letter briefs on the applicability of those two cases to Goff’s appeal.

       As an initial matter, we note that we remain bound by Almendarez-Torres v. United States,

523 U.S. 224 (1998), unless and until the Supreme Court decides to overrule that decision. See

United States v. Barnett, 398 F.3d 516, 524 (6th Cir. 2005) (“Existing case law establishes that

Apprendi does not require the nature or character of prior convictions to be determined by a jury.”).


       1
         Conceding that this position is probably inconsistent with Almendarez-Torres v. United
States, 523 U.S. 224 (1998), Goff argued that Almendarez-Torres “will be revisited.” Joint
Appendix (“J.A.”) at 30 (Sentencing Hr’g).

                                                  2
As Goff does not contend that Shepard actually overrules the prior-conviction holdings of Barnett

and Almendarez-Torres, Goff Letter Br. at 4, Goff’s contention that his sentence was calculated

using the wrong Base Offense Level must fail in this court.

       Goff also contends in his letter brief that, under Barnett, the district court plainly erred by

applying the Guidelines as if they were mandatory. We agree. See Barnett, 398 F.3d at 525-31.

The record contains no “clear and specific evidence” that the district court would have imposed an

equal or greater sentence under an advisory Guidelines regime. United States v. Webb, --- F.3d ---,

2005 WL 763367, at *7 (6th Cir. Apr. 6, 2005). Indeed, the district judge’s comments suggest that

he was merely sentencing Goff in the middle of the applicable Guidelines range, and he might have

sentenced differently were he faced with a different set of sentencing options. See R. 37 at 8 (“So

I’m going to arrive at a sentence somewhere near the middle of the range.”) (Sentencing Hr’g).

Accordingly, we VACATE Goff’s sentence and REMAND the case to the district court for further

proceedings not inconsistent with this opinion.




                                                  3
