                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0867n.06
                           Filed: October 24, 2005

                                           No. 04-6181

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE EASTERN
v.                                                       )         DISTRICT OF TENNESSEE
                                                         )
RONALD MARTIN BAILEY,                                    )            MEMORANDUM
                                                         )              OPINION
       Defendant-Appellant.                              )




BEFORE:        DAUGHTREY, MOORE and McKEAGUE, Circuit Judges.

       PER CURIAM. Appellant Ronald Martin Bailey was sentenced to a prison term of 35

months and a three-year period of supervised release after pleading guilty to the charge of

conspiracy to manufacture methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). On

appeal, he contends the district court erred in two ways: by enhancing his sentence based on facts

not admitted by him and not proved to a jury beyond a reasonable doubt, and by applying the United

States Sentencing Guidelines as mandatory, contrary to the Supreme Court’s ruling in United States

v. Booker, 125 S.Ct. 738 (2005). Finding that the district court appropriately imposed an alternative

sentence identical to the Guidelines sentence, we conclude that any Booker violation was harmless

error; and finding that the alternative sentence is reasonable, we affirm the judgment of sentence.
No. 04-6181
United States v. Bailey

                                                  I

       In a four-count indictment, defendant Bailey was charged with conspiracy to manufacture

methamphetamine, attempting to manufacture methamphetamine, possession of chemicals for use

in manufacturing methamphetamine, and being a felon in possession of a firearm. Pursuant to a

plea agreement with the government, defendant pleaded guilty to the first count in exchange for

dismissal of the remaining counts. He expressly understood and agreed that the court could impose

any lawful term of imprisonment up to the statutory maximum penalty. The plea agreement did not

include any stipulation as to drug quantity or firearm possession.

       Sentencing occurred on October 13, 2004. Applying the Sentencing Guidelines, the

presentence report proposed a sentencing range of 30 to 37 months’ imprisonment. This range was

based on a criminal history category of I and a total offense level of 19. In arriving at this adjusted

offense level of 19, the presentence investigator used the drug quantity of 5.64 grams of

pseudoephedrine (an ingredient of methamphetamine production) found in defendant’s camper at

the time of his arrest, yielding an offense level of 20. U.S.S.G. § 2D1.1(c)(10). The offense level

was further adjusted upward two points to 22 based on defendant’s possession of firearms in

connection with the conspiracy. U.S.S.G. § 2D1.1(b)(1). This adjustment was based (1) on the

discovery of three firearms at the time of defendant’s arrest, two in his camper and one in the yard

where the camper was parked; and (2) the investigative assessment that defendant had been trading

methamphetamine for firearms. The offense level was then adjusted downward three points to 19

based on defendant’s acceptance of responsibility. U.S.S.G. § 3E1.1(a) and (b).




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United States v. Bailey

       Citing Blakely v. Washington, 542 U.S. 296 (2004), defendant objected to the proposed

offense level enhancements based on drug quantity and firearm possession. The district court

overruled the objections, holding, on the strength of United States v. Koch, 383 F.3d 436 (6th Cir.

2004) (en banc), that Blakely had no application to the federal Sentencing Guidelines. The district

court went on to sentence defendant to 35 months in prison, a sentence within the Guidelines range

and long enough, the court observed, to ensure defendant would have the opportunity to participate

in the substance abuse treatment program offered by the Bureau of Prisons. Further, anticipating

that the reasoning of Blakely could ultimately be applied by the Supreme Court to invalidate the

Sentencing Guidelines in some manner, the district court imposed an alternative sentence, stating

“that if the Court were to exercise its discretion in sentencing the defendant anywhere within the

statutory range, the Court would set his sentence at the exact same amount that I’ve just sentenced,

the 35 months.” J.A. 43. On appeal, defendant renews his Blakely challenge, as fortified by the

Supreme Court’s ruling in Booker.

                                               II

       In Booker, the Supreme Court overruled Koch and ruled that the Sixth Amendment requires

that facts “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.” 125 S.Ct. at 756. Rather than invalidating the Sentencing Guidelines

altogether, however, Booker merely severed 18 U.S.C. § 3553(b), rendering most Guidelines

enhancements advisory. Id. at 756-57; United States v. Christopher, 415 F.3d 590, 593 (6th Cir.

2005). To the extent, therefore, that the district court applied such enhancements and imposed

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United States v. Bailey

sentence under the view that the Guidelines were mandatory, it erred. Christopher, 415 F.3d at 593.

       Yet, “when a district court imposes alternative, identical sentences, one under a regime in

which Guidelines enhancements are not mandatory, the harmlessness of any Booker error is

established.” Id. Here, as in Christopher, the district court’s alternative sentence makes it clear that

if the court’s discretion were not restricted by the Guidelines, it would impose the same 35-month

prison sentence. Under these circumstances, remand for resentencing without mandatory Guidelines

is unnecessary. Id. at 594. Instead, we review defendant’s sentence only for “reasonableness” under

Booker. Id.

       Our review for reasonableness is not confined to the length of the sentence imposed. United

States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). A sentence may be held to be “unreasonable

when the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’

the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an

appropriate sentence without such required consideration.” Id.

       Here, the district court, in imposing the alternative sentence, clearly considered the

applicable Guidelines range. Moreover, the district court appears to have properly applied the

Guidelines in arriving at the appropriate range. While defendant has challenged the district court’s

authority to make fact-findings per Booker, he has not challenged the correctness of the findings

made. That is, defendant did not dispute the factual bases for either the drug quantity enhancement

or the firearm possession enhancement at sentencing, nor has he done so on appeal.1


       1
        Regarding firearm possession, defendant’s counsel denied, at sentencing, that any firearm
found at the scene of arrest belonged to defendant, but he acknowledged that the circumstances

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No. 04-6181
United States v. Bailey

       We are also satisfied that the district court adequately considered the § 3553(a) sentencing

factors. The court did not explicitly consider each and every one of the seven factors, but there is

no requirement that a sentencing court engage in a “ritualistic incantation” of the § 3553(a) factors.

United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005). The district judge’s remarks at

sentencing indicate that he considered the history and characteristics of the defendant, § 3553(a)(1);

the seriousness of the offense and the need for the sentence to reflect the seriousness of the offense,

§ 3553(a)(1) and (a)(2)(A); the need for medical care or other correctional treatment (i.e., substance

abuse treatment), § 3553(a)(2)(D); as well as the sentencing range prescribed by the Sentencing

Guidelines, § 3553(a)(4). Defendant has not identified any factors the district court should have

considered that would have made a difference in the sentence imposed.

       Concluding that the district court appropriately considered the Guidelines range and other

sentencing factors in imposing the alternative sentence, and considering that the sentence imposed

is well below the statutory maximum penalty, we hold that the alternative sentence is reasonable.2


surrounding the firearm’s discovery justified the two-level enhancement.
       2
          There may be a question regarding the statutory maximum penalty, but it is ultimately of
little consequence.
         According to the presentence report relied on by the district court, if defendant were found
to have been previously convicted of a felony drug offense, and the current offense were found to
have involved 5.64 grams of pseudoephedrine (i.e., the methamphetamine equivalent of 56.4
kilograms of marijuana), the statutory maximum would be 30 years’ imprisonment. 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(C). Yet, the status of any prior conviction appears to have been left
undetermined.
         The government had given notice of its intent to seek enhancement of defendant’s sentence
based on his 1983 conviction for sale of marijuana in Mississippi. Defendant filed a written
objection to any enhancement based on this prior conviction, arguing that it had been expunged by
order of the Lowndes County Circuit Court in Mississippi in 1988. The presentence investigator did
not address the objection in his addendum to the presentence report. At sentencing, the government

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United States v. Bailey

                                                 III

       Accordingly, the court having determined that the district court’s Booker error was harmless

and that the sentence imposed is reasonable, the judgment of the district court is hereby

AFFIRMED.




did not argue for enhancement based on the prior conviction, and defendant did not expressly renew
his objection. Hence, the district court made no finding regarding a prior felony drug conviction.
        In the absence of a prior felony drug conviction, and assuming a drug quantity of 5.64 grams
of pseudoephedrine, the statutory maximum would be 20 years’ imprisonment. Id. In the absence
of a prior conviction and assuming a drug quantity of less than 5 grams of pseudoephedrine (even
though defendant did not challenge the correctness of the district court’s drug quantity finding), the
statutory maximum would be 5 years’ imprisonment. 21 U.S.C. § 841(b)(1)(D).
        Thus, in any case, it is plain to see that defendant’s sentence of 35 months is well below the
statutory maximum penalty, whether deemed to be 20 years or 5 years.


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