                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1916
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.
CRISS E. DUNCAN,
                                              Defendant-Appellant.
                          ____________
         Appeal from the United States District Court for the
         Northern District of Indiana, South Bend Division.
                 No. 03 CR 57—Allen Sharp, Judge.
                          ____________
      ARGUED FEBRUARY 25, 2005—DECIDED JULY 1, 2005
                          ____________




  Before BAUER, POSNER and RIPPLE, Circuit Judges.
  RIPPLE, Circuit Judge. After a jury trial, Criss Duncan was
convicted of the following offenses: armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d); use of a firearm
during and in relation to that bank robbery, in violation of
18 U.S.C. § 924(c); aiding and abetting the malicious damage
by fire to a vehicle, in violation of 18 U.S.C. §§ 844(i) and 2;
and possessing a firearm despite being a felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Duncan appeals
his sentence. For the reasons set forth in the following
2                                                  No. 04-1916

opinion, while retaining jurisdiction, we order a limited
remand of this case to the district court as required by
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).


                               I
                      BACKGROUND
A. Facts
  We shall set forth only those facts germane to
Mr. Duncan’s present challenge to his sentence. On May 27,
2003, he and his co-defendant Ralph Berkey, each armed
with an assault-type rifle, robbed the National City Bank
located in Leesburg, Indiana. At Mr. Duncan’s trial, Berkey
testified that the firearms that they had used during the
robbery had been modified to be fully automatic. R.126 at
25, 41-42. In addition, Larry Joe Ellis testified that, prior to
the robbery, he had worked for Berkey to make several fire-
arms fully automatic. Id. at 22-24. According to Ellis, after
the robbery, Mr. Duncan and Berkey left Mr. Duncan’s
Mazda truck on Ellis’ property, and Berkey told him to
“[w]ipe the fingerprints off the guns. Take care of them for
me.” Id. at 22. Ellis found two fully automatic firearms in
the truck, and he converted them back to semi-automatic.
  The presentence report prepared in Mr. Duncan’s case
recommended, with respect to the charge of using a firearm
during and in relation to the bank robbery, that the firearms
used by Mr. Duncan and Berkey be categorized as machine
     1
guns. This classification had important conse-


1
  “Machine gun” is defined under 18 U.S.C. § 921(23), by
reference to 26 U.S.C. § 5845(b), as “any weapon that shoots, is
                                                 (continued...)
No. 04-1916                                                          3

quences for Mr. Duncan: For violations of 18 U.S.C.
§ 924(c)(1)(A), the statutory minimum sentence for a semi-
automatic firearm is ten years, id. § 924(c)(1)(B)(i); the mini-
                                                               2
mum for a machine gun is thirty years, id. § 924(c)(1)(B)(ii).
Moreover, this minimum prison term is “in addition to the


1
  (...continued)
designed to shoot, or can be readily restored to shoot, automati-
cally more than one shot, without manual reloading, by a single
function of the trigger.”
2
    Title 18 section 924(c)(1) provides in part:
      (A) Except to the extent that a greater minimum sentence is
      otherwise provided by this subsection or by any other
      provision of law, any person who, during and in relation to
      any crime of violence . . . uses or carries a firearm, or who, in
      furtherance of any such crime, possess a firearm, shall, in
      addition to the punishment provided for such crime of
      violence . . . —
          (i) be sentenced to a term of imprisonment of not less
          than 5 years;
          (ii) if the firearm is brandished, be sentenced to a term of
          imprisonment of not less than 7 years; and
          (iii) if the firearm is discharged, be sentenced to a term
          of imprisonment of not less than 10 years.
      (B) If the firearm possessed by a person convicted of a
      violation of this subsection—
          (i) is a short-barreled rifle, short-barreled shotgun, or
          semiautomatic assault weapon, the person shall be sen-
          tenced to a term of imprisonment of not less than
          10 years; or
          (ii) is a machinegun or a destructive device, or is
          equipped with a firearm silencer or firearm muffler, the
          person shall be sentenced to a term of imprisonment of
          not less than 30 years.
18 U.S.C. § 924(c)(1)(A)-(B).
4                                                No. 04-1916

punishment provided for” the underlying crime of violence,
here the armed bank robbery. Id. § 924(c)(1)(A). Mr. Duncan
maintained that no actual proof was established at trial that
the firearms were in fact fully automatic.


B. District Court Proceedings
  Over Mr. Duncan’s objection, the district court found that
the testimony of Berkey and Ellis established, by a prepon-
derance of the evidence, that the firearms used in the
National City Bank robbery qualified as machine guns. Un-
der the law prevailing at the time of sentencing, this finding
required the district court to sentence Mr. Duncan to at least
thirty years in prison on the firearms count. See id.
§ 924(c)(1)(B)(ii); see also U.S.S.G. § 2K2.4 (the federal
guidelines sentence for violations of § 924(c)(1) is the
statutory minimum).
  The guidelines sentencing range for Mr. Duncan’s re-
maining convictions was 97 to 121 months. The final guide-
lines range was 457 to 481 months. The district court
imposed a sentence of 457 months’ imprisonment, stating:
    In my thirty plus years as a federal judge, because of the
    mandatory thirty years for using a machinegun, this is
    without a doubt the longest sentence this Court has
    given for a bank robbery. A sentence at the low end of
    the range still places him in federal custody for almost
    forty years, and seems more than adequate.
R.133 at 14.
No. 04-1916                                                     5

                               II
                        DISCUSSION
A. Standard of Review
   Mr. Duncan contends that his sentence violates his Sixth
Amendment rights as interpreted by the Supreme Court in
United States v. Booker, 125 S. Ct. 738 (2005), and in Blakely v.
Washington, 124 S. Ct. 2531 (2004). Specifically, he claims
that he is entitled to resentencing because his sentence relies
in part upon the district court’s finding as to what type of
firearm he used during the robbery of National City Bank,
a fact that was not proven to a jury beyond a reasonable
doubt nor admitted by him. Because Mr. Duncan did not
challenge the constitutionality of his sentence before the
district court, our review is for plain error. Paladino, 401 F.3d
at 481.
  The plain error standard allows an appellate court to “cor-
rect an error that the defendant failed to raise below only
when there was (1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Henningsen, 402 F.3d 748,
751 (7th Cir. 2005) (citing United States v. Olano, 507 U.S. 725,
732 (1993)); see also Fed. R. Crim. P. 52(b). “If these condi-
tions are met, an appellate court may exercise its discretion
to notice a forfeited error if (4) the error seriously affects the
fairness, integrity, or public reputation of the proceedings.”
Id. (citing Olano, 507 U.S. at 732).


B. Sentence
                               1.
  With respect to Mr. Duncan’s contention that Booker and
Blakely require the vacation of his sentence because it is
based on a mandatory minimum sentence, the Supreme
6                                                     No. 04-1916

Court’s decision in Harris v. United States, 536 U.S. 545
(2002), controls. In Harris, the Court stated that McMillan v.
Pennsylvania, 477 U.S. 79 (1986), in which it upheld a state
statute that mandated minimum sentences based upon
judicial fact-finding, could co-exist with the logical implica-
tions of the rule announced in Apprendi v. New Jersey, 530
U.S. 466 (2000), that “ ‘[o]ther than a fact of a prior convic-
tion, 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.’ ” Harris, 536
U.S. at 550, 566-67 (quoting Apprendi, 530 U.S. at 490).
  Contrary to Mr. Duncan’s submission, nothing in Booker
or Blakely suggests that the Court reconsidered, much less
overruled, its holding in Harris. See United States v. Lee, 399
F.3d 864, 866 (7th Cir. 2005) (noting that Booker does not give
sentencing courts any discretion to disregard a statutory
                         3
mandatory minimum). Put simply, Booker and Blakely do
not affect the imposition of statutory minimum sentences.



3
  The other courts of appeals to have addressed this issue have
concluded that Booker does not apply to statutory mandatory
minimum sentences. See, e.g., United States v. Bermudez, 407 F.3d
536, 545 (1st Cir. 2005); United States v. Cardenas, 405 F.3d 1046,
1048 (9th Cir. 2005); United States v. Childs, 403 F.3d 970, 972
(8th Cir. 2005); United States v. Moore, 401 F.3d 1220, 1222 n.1
(10th Cir. 2005); United States v. Rojas-Coria, 401 F.3d 871, 874 n.4
(8th Cir. 2005); United States v. Groce, 398 F.3d 679, 682 n.2
(4th Cir. 2005); United States v. Shelton, 400 F.3d 1325, 1333 n.10
(11th Cir. 2005); United States v. Sanchez, No. 03-4760, 2005
WL 419464, at *2 n.2 (3d Cir. Feb. 23, 2005) (unpublished);
United States v. Sharpley, 399 F.3d 123, 127 (2d Cir. 2005); United
States v. Joiner, No. 03-5397, 2005 WL 351152, at *1 (6th Cir.
Feb. 14, 2005) (unpublished).
No. 04-1916                                                   7

  Moreover, even if the logic and spirit of those decisions
could be interpreted to have eroded the Court’s previous
rationale for permitting mandatory minimum sentences
based on judicial fact-finding, it certainly is not our role as
an intermediate appellate court to overrule a decision of the
Supreme Court or even to anticipate such an overruling by
the Court. See Roper v. Simmons, 125 S. Ct. 1183, 1209 (2005)
(“[I]t remains this Court’s prerogative alone to overrule one
of its precedents . . . . That is so even where subsequent
decisions or factual developments may appear to have
significantly undermined the rationale for our earlier
holding.” (emphasis in original, internal quotation marks
and citations omitted)); State Oil Co. v. Khan, 522 U.S. 3, 20
(1997) (“The Court of Appeals was correct in applying that
principle despite disagreement with Albrecht [v. Herald Co.,
390 U.S. 145 (1968)], for it is this Court’s prerogative alone
to overrule one of its precedents.” (citing Khan v. State Oil
Co., 93 F.3d 1358 (7th Cir. 1996))); Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“[I]f
a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative
of overruling its own decisions.”).


                              2.
  Mr. Duncan’s sentence nevertheless requires our interven-
tion. The district court imposed his sentence prior to Booker
and, understandably, believed itself bound by the federal
sentencing guidelines. Our cases hold that, in light of Booker,
such a misapprehension can amount to plain error. See, e.g.,
United States v. Castillo, 406 F.3d 806, 823 (7th Cir. 2005)
(concluding that mandatory application of the guidelines
8                                                   No. 04-1916

itself, absent any Sixth Amendment violation, constitutes
error (citing United States v. White, 406 F.3d 827, 835 (7th Cir.
2005))); Paladino, 401 F.3d at 480; see also Booker, 125 S. Ct. at
767 (rendering the guidelines effectively advisory, and not
mandatory).
  If Mr. Duncan were to be resentenced, the district court
still would have no discretion to sentence him on the fire-
arm offense to less than the statutory thirty-year minimum.
However, this sentence runs consecutively to the sentence
imposed because of Mr. Duncan’s other offenses. See 18
U.S.C. § 924(c)(1)(B). This latter component of his sentence
is not tied to a statutory minimum. Thus, Booker would
afford the district court some additional discretion with re-
spect to Mr. Duncan’s total punishment. The district court
chose a sentence at the lowest end of the applicable guide-
lines range and expressed the concern that,
    [i]n my thirty plus years as a federal judge, because of
    the mandatory thirty years for using a machinegun, this
    is without a doubt the longest sentence this Court has
    given for a bank robbery. A sentence at the low end of
    the range still places him in federal custody for almost
    forty years, and seems more than adequate.
R.133 at 14. This statement suggests that the district court,
even though still bound by the statutory minimum, may
well have imposed a lighter total sentence if it had not be-
lieved that it was bound by the sentencing guidelines to
impose the sentence that it did impose. We cannot know
this, however. To enable us to complete our plain error
analysis, a limited remand to the district court, in accor-
dance with the procedure outlined in this court’s decision in
Paladino, 401 F.3d at 483-84, is appropriate.
No. 04-1916                                                  9

                         Conclusion
  Accordingly, while retaining jurisdiction, we remand this
case to the district court for proceedings consistent with this
opinion.


                                             IT IS SO ORDERED

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                     USCA-02-C-0072—7-1-05
