                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0353p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                    Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                          -
                                                          -
                                                          -
                                                              No. 04-1476
             v.
                                                          ,
                                                           >
 MARVIN SMITH,                                            -
                                 Defendant-Appellant. -
                                                         N
                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                        No. 90-80445—Patrick J. Duggan, District Judge.
                                      Argued: July 22, 2005
                               Decided and Filed: August 18, 2005
                   Before: KENNEDY, CLAY, and GILMAN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Scott A. Srebnick, Miami, Florida, for Appellant. Robert Cares, UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Scott A. Srebnick, Miami, Florida,
for Appellant. Robert Cares, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        RONALD LEE GILMAN, Circuit Judge. Marvin Smith, the delivery man for a drug-
trafficking ring operating out of a Detroit car wash, was indicted in 1990 on charges that he
conspired to possess and did possess 32 kilograms of powder cocaine with the intent to distribute,
engaged in interstate travel in aid of racketeering, and unlawfully used a communication device.
Shortly before the jury convicted Smith on all counts, he absconded. He was not apprehended until
12 years later. The district court, in 2004, sentenced him to 240 months in prison.
        On appeal, Smith argues that the district court erred in (1) admitting into evidence the grand
jury testimony of an important prosecution witness and then providing the transcript to the petit jury
in the absence of a cautionary instruction, (2) reading the indictment against Smith to the jury and
then sending it to the jury room without a proper limiting instruction, and (3) enhancing Smith’s
sentence on the basis of judge-found facts in violation of United States v. Booker, 125 S. Ct. 738
(2005). For the reasons set forth below, we AFFIRM the judgment of the district court.



                                                  1
No. 04-1476           United States v. Smith                                                     Page 2


                                         I. BACKGROUND
A.      The drug-trafficking operation
        Agents from the Federal Bureau of Investigation (FBI) raided June’s Car Wash in Detroit,
Michigan on the evening of July 11, 1989 and seized 32 kilograms of high-quality powder cocaine.
The evidence that led to this investigation was primarily obtained through FBI wiretaps on three
telephone lines. Two of the telephone lines were located at the car wash and the other was located
at the home of Joseph Moss, one of the car wash’s co-owners.
        Calls that were intercepted on these lines in June of 1989 alerted FBI agents to the fact that
a man in California, referred to alternatively as “Pops,” “Bishop,” and “Pops Bishop,” was trying
to make a large purchase of cocaine that he planned to deliver to the car wash. Smith admitted in
a 1990 interview with an FBI agent that he had “used the name Bishop all his life,” and “that people
call him Pops.” Furthermore, a voice exemplar taken from Smith matched the voice of the man in
these intercepted calls.
        During one of the June telephone conversations between Smith and Roosevelt Lockett, the
other co-owner of the car wash, Smith advised that “whatever move I make right now is gonna be
damn near big enough to hold us the summer.” Lockett said to Smith, in a conversation later that
day: “I’m sending you the seven.” Moss sent a money order in the amount of $7,000 to California
less than three hours later. It was payable to “Marvin Smith.”
        A month after this, another series of conversations intercepted on the phone lines suggested
to agents that the car wash was expecting a large quantity of cocaine to be delivered in the near
future. On July 10, 1989, Patricia McKenzie, also a member of the drug-trafficking ring, assured
Moss that Smith would soon be making a delivery. McKenzie told Moss: “Okay. I talked to Pops
and he called me twice yesterday. . . [and] he said it might be today.” The next day, on July 11,
1989, Smith called Moss and advised him that “the front man’s here so we talkin’ about between
three and six.” At approximately 6:00 p.m., Smith called Moss at the car wash and asked, “Anybody
in my parkin’ spot?” Moss replied, “No.” And Smith told him to “leave the door open.”
         FBI agents conducting surveillance on the car wash saw a red car arrive and then back into
the wash bay nearest the office. Unlike the other cars that the agents had seen entering the bays, this
car was not washed. (Three of the young men who were working at the car wash that day later
testified that Moss had instructed them not to wash this particular car.) After backing the car in, the
driver got out and opened the trunk. Moss and others were then seen taking boxes out of the trunk
and carrying them to the office. As soon as the unloading was finished, the driver got back in the
red car and drove away from the car wash. The car was followed by FBI agents, who obtained its
license number, but never stopped the car. (In its brief, the government suggests that this was
because the agents “were unable to stop it,” but we find no support for this statement in the record.)
A few minutes after the red car left the car wash, FBI agents executed a search warrant on the
premises and discovered 32 kilograms of high-quality powder cocaine stored in the office.
B.      Proceedings in the district court
        Fourteen people were charged in connection with the drug-trafficking ring operating out of
the car wash. Smith was indicted on five counts: conspiracy to possess powder cocaine with the
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession of 32 kilograms of
powder cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); engaging in
interstate travel with the intent to carry on an unlawful activity, in violation of 18 U.S.C. § 1952; and
two counts of unlawful use of a communication device, in violation of 21 U.S.C. § 843(b).
No. 04-1476           United States v. Smith                                                     Page 3


        In January and February of 1991, Smith was tried along with 11 of his codefendants. The
government alleged that Smith was “Pops Bishop,” the man who had helped to orchestrate the
cocaine purchase and who had driven the red car that delivered the cocaine to the car wash. None
of the FBI agents conducting surveillance of the car wash, however, was able to identify Smith as
the driver of the car that made the delivery. Three car wash employees who were working on the
day of the delivery testified for the prosecution at trial, but they also failed to identify Smith as the
driver of the red car. One employee, Carlos Clark, reluctantly admitted that the name of the driver
“might have been Pops,” and that he “remember[ed] the name.” But Clark then insisted that he had
never heard the name “Pops Bishop” at the car wash, and said that he could not identify Smith as
the driver of the red car.
        Because Clark’s trial testimony differed from the testimony that he had previously given to
the grand jury that indicted Smith, the government was permitted to read Clark’s grand jury
testimony into the record. See Fed. R. Evid. 801(d)(1)(A). The grand jury testimony, in relevant
part, read as follows:
        Q:      Now, did you recognize the driver of the car?
        A:      Yes.
        Q:      Had you seen the driver before?
        A:      Yes, I saw him before.
        Q:      Did you know his name?
        A:      No.
        Q:      Did you know him by a nickname?
        A:      I think I heard of his nickname.
        Q:      What was his nickname?
        A:      I think it’s Pops.
        Q:      Pops?
        A:      Yes.
                ...
        Q:      He had been to the car wash before? You’d seen him there before?
        A:      Right.
                ...
        Q:      Did you ever hear of a person by the name of Pops Bishop?
        A:      I think that’s him.
        Q:      He was in the red car . . ., is that right?
        A:      Right.
In addition to reading this testimony into the record, the district court permitted the government to
introduce a transcript of Clark’s grand jury testimony as an exhibit. Later, the jury was permitted
to view this exhibit during its deliberations.
       Smith failed to appear for court on February 6, 1991, which was after the jury had begun its
deliberations but two days before it found him guilty on all five counts. He remained a fugitive for
12 years. Smith was finally apprehended in Mexico in March of 2003. In 2004, the district court
sentenced Smith to 240 months in prison. This timely appeal followed.
No. 04-1476           United States v. Smith                                                   Page 4


                                          II. ANALYSIS
A.     The fugitive disentitlement doctrine
        This case presents the difficult question of whether we should employ the fugitive
disentitlement doctrine to dismiss Smith’s appeal from his conviction. Courts have used this
doctrine to dismiss the appeals of defendants whose flights “operate[] as an affront to the dignity of
the court’s proceedings” or “so delay the onset of appellate proceedings that the Government would
be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal.”
Ortega-Rodriguez v. United States, 507 U.S. 234, 246, 249 (1993). The government argues that
Smith’s appeal from his conviction should be dismissed because his 12-year flight from justice has
prejudiced the government’s ability to retry him in the event that we set aside his 1991 conviction.
         A review of the caselaw reveals that this court and courts in many of our sister circuits have
applied the doctrine in circumstances similar to the present appeal. See, e.g., United States v. Genoa,
No. 93-2292, 1995 WL 73291, at *4 (6th Cir. Feb. 22, 1995) (unpublished) (dismissing the appeal
of a defendant who was a fugitive for three years because his appeal could not be consolidated with
his codefendants’ appeals, “constitut[ing] a significant interference with the substantial interests of
the appellate process”); United States v. Sudthisa-Ard, 17 F.3d 1205 (9th Cir. 1994) (applying the
doctrine to dismiss the appeal of a defendant who had been a fugitive for thirteen years); United
States v. Bravo, 10 F.3d 79 (2d Cir. 1993) (dismissing the appeal of a defendant who was a fugitive
for fifteen years).
        All of the above cases, however, were decided prior to the Supreme Court’s ruling in United
States v. Degen, 517 U.S. 820 (1996). In Degen, the Supreme Court refused to apply the
disentitlement doctrine, “counsel[ing] restraint in resorting” to “the harsh sanction of absolute
disentitlement.” Id. at 823, 827. It further warned that “the sanction of disentitlement is most severe
and so could disserve the dignitary purposes for which it is invoked” because the respect accorded
to a court’s judgment “is eroded, not enhanced, by too free a recourse to rules foreclosing
consideration of claims on the merits.” Id. at 828.
         The Supreme Court’s admonition was heeded by this court in two post-Degen cases where
the government sought to invoke the fugitive disentitlement doctrine. One of these cases is Brown
v. O’Dea, 187 F.3d 572 (6th Cir. 1999), where the court reached the merits of the defendant’s claims
on appeal despite his being a fugitive for more than ten years. Judge Moore explained in her
concurring opinion that refusing to apply the fugitive disentitlement doctrine was appropriate “[i]n
light of the Supreme Court’s recent warnings against using our inherent power to control our docket
as a tool for inflicting ad hoc punishment.” Id. at 584 (Moore, J., concurring). The other case is
March v. Levine, 249 F.3d 462, 470 (6th Cir. 2001), where the court also refused to dismiss a former
fugitive’s appeal, and it did so in explicit reliance on “the Degen Court’s guidance to courts in
deciding whether to disentitle a claimant.”
         Nevertheless, the Supreme Court was clear in Degen that the dismissal of an appeal pursuant
to the fugitive disentitlement doctrine may be appropriate where there is a genuine risk “of delay or
frustration” of the government’s case against a defendant. 517 U.S. at 825. In the present appeal,
the government has alleged that “Smith’s absence for twelve years makes it virtually impossible for
the government to retry the case.” To support this contention, the government states that one of
Smith’s codefendants has died, the FBI agent who managed the case has retired, “some of the
physical evidence may have been destroyed,” and “it is probable that not all of the witnesses could
even be located.”
       But these conclusory and hypothetical statements alone are insufficient to trigger “the harsh
sanction of absolute disentitlement.” Degen, 517 U.S. at 827. An evidentiary hearing in the district
No. 04-1476           United States v. Smith                                                     Page 5


court would therefore be necessary to determine whether the government would in fact be prejudiced
by a retrial of Smith’s case. Rather than undergo such a process, however, we can avoid having to
deal any further with the government’s contention on this issue if we conclude that the district court
committed no reversible error during Smith’s 1991 trial.
B.      Clark’s grand jury testimony
        1.      Admitting the transcript of Clark’s testimony as an exhibit
        Clark told the grand jury that he recognized the man who delivered the cocaine as “Pops
Bishop,” but, when he was called to testify at Smith’s trial, Clark denied any such knowledge. He
instead insisted that he had never heard the name “Pops Bishop” at the car wash and could not
identify Smith as the driver of the red car. Under such circumstances, the admission of Clark’s
grand jury testimony was appropriate. See United States v. Distler, 671 F.2d 954, 958 (6th Cir.
1981) (approving of the admission of grand jury testimony after “many of the witnesses forgot
portions of their grand jury testimony or remembered it with less certainty of detail”).
        Smith does not argue that the district court erred in permitting the government to read
excerpts of Clark’s grand jury testimony to the jury in the present case. Nor does he contend that
this testimony may not be considered as substantive evidence of his guilt. Smith does insist,
however, that the district court erred in admitting the transcript as an exhibit and thereafter providing
a copy of the transcript to the jury. He argues that providing the testimony “in black and white” as
an exhibit had the effect of encouraging the jury to place undue weight on the grand jury testimony
relative to the other testimony offered at trial. See United States v. Walker, 1 F.3d 423, 430 (6th Cir.
1993) (“The potential for double exposure to selected testimony to improperly influence a jury has
long been recognized.”). Because Smith preserved his objection to the district court’s admission of
the transcript as an exhibit, we review its actions under the abuse-of-discretion standard. See United
States v. West, 948 F.2d 1042, 1044 (6th Cir.1991) (holding that the decision to admit transcripts
of taped testimony into evidence, or to send transcripts to the jury for their reference, falls within
the sound discretion of the trial court).
         If the transcript of Clark’s grand jury testimony had been sent to the petit jury after the
district court had determined that such action was necessary and after the court had given an
appropriate limiting instruction, there can be little doubt that the district court would not have abused
its discretion in permitting the deliberating jury to view the transcript. See United States v. Scaife,
749 F.2d 338, 347 (6th Cir. 1984) (“A district court has broad discretion to permit a jury to take to
the jury room any tape recordings that have been admitted as exhibits during trial.”). Whether the
transcript was properly admitted as an exhibit, however, is a closer question.
        This court was faced with an analogous situation in Engebretsen v. Fairchild Aircraft Corp.,
21 F.3d 721 (6th Cir. 1994). There, the court warned that a “party’s right to admit prior statements
in a document for rehabilitative purposes [does not] necessarily entitle[] that party to submit the
document as an exhibit to the jury. Permitting the document to go to the jury room could unduly
prejudice the cross-examining party.” Id. at 730 n.2. The Engebretsen court advised that the district
court should instead “consider admitting the statements in the document through testimony or by
having the document read to the jury.” Id. Only where “the court determines that admitting the
document as an exhibit is necessary” should the document be admitted, and then only with an
appropriate instruction regarding “the limited purpose of the exhibit.” Id.
        The district court in the present case offered no justification for its decision to eschew the
established practice of simply reading the transcript of the testimony aloud to the jury. It made no
finding with regard to whether the admission of the transcript as an exhibit was necessary, nor did
the court explain its decision to provide the deliberating jury with a copy of the transcript. The
failure of the district court to explain its actions regarding the grand jury transcript was an abuse of
No. 04-1476            United States v. Smith                                                     Page 6


discretion. See Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (“At times, we have found an
abuse of discretion where a district court fails to explain its reasoning adequately or to consider the
competing arguments of the parties.”). Nevertheless, because Smith has failed to show that the
jury’s consideration of the transcript prejudiced his defense (see Part II.B.2.below), any error by the
district court would necessarily be harmless. See Scaife, 749 F.2d at 347 (ruling that the district
court’s “technical error” in permitting the deliberating jury to listen to a tape that had not been
admitted into evidence was harmless because “the defendants ha[d] not even attempted to show
prejudice”).
        2.      Failing to give the jury a cautionary instruction
        Smith also argues that the district court erred in failing to give a proper cautionary instruction
before providing the deliberating jury with a copy of Clark’s grand jury testimony. See United
States v. Rodgers, 109 F.3d 1138, 1141 (6th Cir. 1997) (taking the “opportunity to explicitly
announce the rule that a district court must give cautionary instructions to the jury when allowing
the jury to review trial testimony, and [warning that] a failure to do so may be reversible error”).
This court has recognized that there are “two inherent dangers” in permitting a jury to review
testimony offered at trial during its deliberations. United States v. Padin, 787 F.2d 1071, 1076 (6th
Cir. 1986). First, the jury may accord “undue emphasis” to the testimony it reviews. Id. And
second, “the limited testimony that is reviewed may be taken out of context by the jury.” Id.
“[T]hese concerns are escalated after the jury ha[s] reported its inability to arrive at a verdict.” Id.
at 1077.
        The reported cases addressing when it is appropriate for a deliberating jury to review
testimony do not distinguish between a district court’s rereading of trial testimony to the jury and
providing the jury with transcripts of the testimony. Compare United States v. Tines, 70 F.3d 891,
897 (6th Cir. 1995) (applying the two concerns expressed in Padin to the district court’s decision
to read back testimony), with Rodgers, 109 F.3d at 1143 (evaluating, in light of Padin, the district
court’s decision to provide the jury with a transcript of testimony). Smith also argues that transcripts
of grand jury testimony should be treated differently than transcripts of trial testimony, but the
relevant caselaw with respect to this issue does not support such a distinction. See Distler, 671 F.2d
at 958-59 (permitting the jury to consider both trial testimony and grand jury testimony as
substantive evidence of the defendant’s guilt).
        The district court’s primary error, however, was its failure to issue a cautionary instruction
before providing the petit jury with a transcript of Clark’s grand jury testimony. Such an instruction
is necessary “to guard against the dangers of undue emphasis and context.” Tines, 70 F.3d at 897
(approving the district court’s decision to issue a cautionary instruction “[t]wice before and once
after the testimony was re-read”). The district court therefore abused its discretion in failing to give
an appropriate instruction with regard to the proper use of Clark’s grand jury testimony. See
Rodgers, 109 F.3d at 1141 (holding that a district court commits error when it does not give a
cautionary instruction before permitting a deliberating jury to review testimony).
         Setting aside the judgment and remanding for a new trial is required, however, only if Smith
can show that he was prejudiced by the district court’s error. Smith asserts that the jury’s request
to see the transcript of Clark’s grand jury testimony, in the absence of a similar request to review
Clark’s trial testimony, demonstrates that the jury placed “undue emphasis” on the grand jury
testimony. Padin, 787 F.2d at 1076. The record reveals, however, that the jury asked to see the
grand jury testimony of several witnesses, including that of Clark, just after it began its
deliberations. When the court informed the jury that some of the testimony requested did not exist
because the witnesses had not all testified before the grand jury, the jury then asked for all of the
exhibits in the case to be sent to the jury room. The jury’s blanket request to see all of the exhibits
at this early stage of its deliberations can hardly be said to constitute strong evidence that the jury
No. 04-1476           United States v. Smith                                                    Page 7


placed undue emphasis on this one exhibit. See Rodgers, 109 F.3d at 1144 (concluding that the
district court’s error in failing to issue a cautionary instruction was harmless where “there [wa]s no
indication the jury was having great difficulty agreeing on a unanimous verdict”).
         Smith further argues that the petit jury necessarily viewed the transcript of Clark’s testimony
“out of context” because the district court neglected to explain to the jury the ex parte nature of
grand jury proceedings. Id. at 1143. But the jury in Smith’s case had the benefit of seeing Clark
testify at trial, which is not always the case when grand jury testimony is admitted as substantive
evidence in a criminal trial. See United States v. Barlow, 693 F.2d 954, 961 (6th Cir. 1982)
(admitting the grand jury testimony of a witness who was unavailable to testify at trial). When
testifying at Smith’s trial, Clark insisted that he did not know the identity of the person who
delivered the cocaine. Clark even accused the prosecutor of twisting his grand jury testimony and
said: “You’re putting two people’s names together. I did not say Pops Bishop.”
         Clark’s interpretation of his own grand jury testimony helped to put the testimony in context
for the jury. Furthermore, Clark’s willingness to verbally spar with the prosecutor at trial undercuts
Smith’s contention that Clark was a “young and impressionable witness” who was “spoon fed
answers” during his grand jury appearance.
         Finally, there was substantial additional evidence introduced at trial, including Smith’s
numerous recorded telephone calls to his coconspirators, upon which the jury could have properly
based its guilty verdict. We therefore conclude that the district court’s error in failing to issue a
cautionary instruction was harmless because “it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15
(1999) (finding that an improper jury instruction was a harmless error that did not require reversal
of the conviction) (citation and quotation marks omitted); see also United States v. Pugh, 405 F.3d
390, 400 (6th Cir. 2005) (“In determining whether an error is harmless, the reviewing court must
take account of what the error meant to the jury, not singled out and standing alone, but in relation
to all else that happened.”) (citation and quotation marks omitted).
C.      The indictment
       1.       Reading the indictment to the jury
          Smith also argues that the district court abused its discretion when it read the indictment
against him and his codefendants to the jury. See United States v. Scales, 594 F.2d 558, 561-62 (6th
Cir. 1979) (reviewing the district court’s decision to read aloud and provide copies of the indictment
to the jury for an abuse of discretion). Under normal circumstances, we have no doubt that a district
court is well within its discretion in deciding to read an indictment to the jury. See United States
v. Maselli, 534 F.2d 1197, 1202 (6th Cir. 1976) (observing that the practice of reading the indictment
aloud helps to inform the jury of the charges against the defendant). In the present case, however,
Smith contends that the reading of the indictment was improper because it repeatedly referred to
Smith by the alias “Pops Bishop.” Whether Smith in fact used this nickname was a contested issue
at trial.
         Smith, however, failed to contemporaneously object to the district court’s reading of the
indictment to the jury. His claim must therefore be analyzed under the plain-error standard of
review. See Pugh, 405 F.3d at 402 (“[F]or us to reverse the ruling of the district court, there must
be error, which is plain, which affected the substantial rights of the appellant, and which ‘seriously
affects the fairness, integrity, or public reputation of judicial proceedings.’”) (quoting Johnson v.
United States, 520 U.S. 461, 467 (1997) (alternation in original)). At Smith’s trial, an FBI agent
testified that Smith admitted during an interview that people call him by the names “Pops” and
“Bishop.” The jury also heard evidence that the FBI had compared a voice exemplar taken from
Smith with the voice of the man referred to as “Pops” and “Bishop” in the taped telephone calls, and
No. 04-1476           United States v. Smith                                                     Page 8


determined that the man speaking on the tapes was Smith. Because there was significant evidence
that Smith had used the nicknames “Pops” and “Bishop,” Smith cannot show that his substantial
rights were adversely affected by the district court’s reading of the indictment to the jury.
        2.      Providing the deliberating jury with a copy of the indictment
        The district court also furnished a copy of the indictment to the jury, and it did so without
issuing a limiting instruction. Failure to instruct the jury “to the effect that the indictment is not to
be considered evidence of the guilt of the accused” constitutes error. Scales, 594 F.2d at 561-62
(stating that “the rule is clear that the trial judge has discretion to submit the indictment to the jury
in a criminal case,” but only “as long as limiting instructions are given”); see also United States v.
Baker, 418 F.2d 851, 852-53 (6th Cir. 1969) (per curiam) (“We conclude that it was an abuse of
discretion for the trial court to permit these photostatic copies of a document possessing all of the
indicia of a formal United States government document . . . to be handed to the jury without a proper
explanation of the document and of the purpose of its delivery . . . .”).
         Smith did not timely object to the district court’s failure to offer a limiting instruction. He
insists, however, that his claim should be evaluated under the abuse-of-discretion standard rather
than the plain-error standard because of the “unique circumstances of this case.” Specifically, Smith
argues that, before the trial, his attorney brought a motion to strike the name “Pops Bishop” from
the indictment. The district court denied the motion by stating that it was “much ado about nothing”
because “in my courtroom, the Jury never sees the indictment.” But in so ruling, the district court
also said: “I have no present intent for the Jury to know that those words are in the indictment. No
need to strike them necessarily. Maybe somewhere along the line you will convince me . . . .”
         The record reveals that the district court did in fact change its position with respect to
whether the jury should be provided with the indictment. At that time, however, Smith failed to
raise an objection either to the indictment’s use of the nicknames or the district court’s failure to
issue a limiting instruction to the jury. The decision of the district court to permit the jury to view
the indictment must therefore be upheld unless Smith’s substantial rights were affected. See United
States v. Darwich, 337 F.3d 645, 655-56 (6th Cir. 2003) (“[F]ailure to raise an objection in the
district court . . . limits appellate review to a plain error inquiry . . . .”). Because there was
significant evidence that connected Smith with the name “Pops Bishop,” Smith cannot show that
providing a copy of the indictment to the jury constituted plain error. See Baker, 418 F.2d at 853
(finding that the defendant’s constitutional rights were not affected where “the overwhelming weight
of the evidence of guilt presented [made] it . . . clear beyond a reasonable doubt that neither a refusal
to permit the jurors unlimited access to the[] copies of the indictment nor the offering of a proper
contemporaneous instruction would have altered the verdict”).
D.      Sentencing issues
        1.      Enhancement on the basis of Smith’s prior conviction
        Smith further argues that the district court erred in sentencing him in accordance with the
mandatory minimum sentence imposed by 21 U.S.C. §§ 841(b)(1)(A) and 851. Pursuant to these
provisions, a person who possesses five kilograms or more of powder cocaine with the intent to
distribute the cocaine must be sentenced to a statutory minimum of ten years in prison. The
mandatory minimum sentence is doubled to twenty years, however, if the offender “commits such
a violation after a prior conviction for a felony drug offense has become final.” 21 U.S.C.
§ 841(b)(1)(A).
        Smith had a prior conviction in Texas for possessing controlled substances with the intent
to distribute. On this basis, the district court determined that it was required to impose the
mandatory minimum sentence of 20 years. But Smith alleges that his prior conviction may not be
No. 04-1476           United States v. Smith                                                  Page 9


used to enhance his sentence because the government failed to prove that Smith had “either waived
or was afforded prosecution by indictment for the offense for which such increased punishment may
be imposed,” 21 U.S.C. § 851(a)(2), as it must do in order for his sentence to be enhanced. He
concedes, however, that his argument is foreclosed by this court’s decision in United States v.
Gaitan-Acevedo, 148 F.3d 577, 594 (6th Cir. 1998) (“interpret[ing] the ‘indictment or waiver’ phrase
to refer to the federal offense for which the mandatory sentence is imposed,” and not to the prior
conviction).
        Smith raises the argument simply to preserve his objection for possible en banc rehearing
or Supreme Court review. Because we are bound by our prior precedent, Smith’s contention on this
issue has no merit. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)
(“A panel of this Court cannot overrule the [published] decision of another panel.”).
       2.      Enhancement for obstruction of justice
         Finally, Smith argues that the district court violated his Sixth Amendment rights in
sentencing him on the basis of judge-found facts. The district court applied a two-level
enhancement to Smith’s sentence after finding that he had obstructed justice by absconding during
his trial and remaining a fugitive for 12 years. These facts were neither submitted to a jury nor
admitted by Smith. This is a violation of Smith’s Sixth Amendment rights as declared in United
States v. Booker, 125 S. Ct. 738, 749 (2005). See also United States v. Oliver, 397 F.3d 369, 380
(6th Cir. 2005) (holding that the Sixth Amendment is violated if a district court “impos[es] a more
severe sentence than is supported by the jury verdict”).
        Under these circumstances, we would normally have to remand Smith’s case for
resentencing. See United States v. Alva, 405 F.3d 383, 385 (6th Cir. 2005) (remanding for
resentencing where the district court “concluded that [the defendant] had obstructed justice, . . . a
fact neither reflected in the jury verdict nor admitted by [the defendant]”). The present case is
unusual, however, because the district court was required to sentence Smith in accordance with the
mandatory 20-year minimum dictated by 21 U.S.C. §§ 841(b)(1)(A) and 851. Smith was sentenced
to 240 months (20 years) of imprisonment, and, if his case were remanded, the district court would
not have the discretion to impose a shorter term of imprisonment. See United States v. Johnson, No.
03-6477, 2005 WL 1059276, at *5 (6th Cir. May 5, 2005) (unpublished) (“Booker does not apply
when the defendant has been sentenced to the mandatory minimum.”). We therefore conclude that
a remand of Smith’s case for resentencing is unnecessary.
                                       III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
