                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0896n.06

                                          No. 12-5851                                 FILED
                                                                                 Dec 03, 2014
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
                                                                ON APPEAL FROM THE
               v.                                       )
                                                                UNITED STATES DISTRICT
                                                        )
                                                                COURT FOR THE WESTERN
TOBEY BECTON,                                           )
                                                                DISTRICT OF TENNESSEE
                                                        )
       Defendant-Appellant.                             )
                                                        )
                                                        )



BEFORE: BOGGS and GRIFFIN, Circuit Judges; and HOOD, District Judge.*

       GRIFFIN, Circuit Judge.

       Tobey Becton challenges his 120-month sentence for using or carrying a firearm during

and in relation to robbery as a violation of the Sixth Amendment. Because we hold that the fact

that a firearm was discharged was not one that increased a mandatory minimum under Alleyne v.

United States, 133 S. Ct. 2151 (2013), we affirm.

                                                I.

       The relevant facts are undisputed. Becton pleaded guilty to one count of robbery, in

violation of 18 U.S.C. § 1951, and one count of using or carrying a firearm during and in relation

to robbery, in violation of 18 U.S.C. § 924(c). At the plea hearing, Becton testified that he knew



       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 12-5851
United States v. Becton


that at least one of his co-defendants had a firearm during the robbery, and the government

contended that a firearm was “displayed.” Becton did not testify that the firearm was discharged,

nor did the indictment allege that fact. The district court advised Becton that the potential

penalty for his firearm charge was “not less than seven years in prison.”

       The Presentence Investigation Report (“PSR”) calculated the Guidelines range for the

firearm charge as “not less than ten years, consecutive to any other sentence imposed because a

firearm was discharged.” See U.S.S.G. § 2K2.4(b). Becton filed a position paper stating that he

had no objections to the PSR and that there were “no disputed matters material to sentencing.”

At the sentencing hearing, after confirming that there were no objections, the district court

accepted the PSR’s factual findings and adopted the PSR’s Guidelines calculations.

       The district court then granted the government’s motion for a downward departure based

on Becton’s substantial assistance, under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553. As a result,

the district court explained, it was no longer bound by the statutory mandatory minimum on the

firearm charge, although the Guidelines range remained at 120 months for that charge.

18 U.S.C. § 3553(e). Acknowledging his “discretion to issue a sentence that varies from the new

guideline range,” and that he was “no longer limited by the statutory minimum of 10 years,” the

district judge considered the relevant § 3553(a) factors. Among other factors, the district court

considered the seriousness of the crime, victim impact, and relevant conduct of three other

robberies. Ultimately, the district court did not vary below the 120-month Guidelines for the

firearm count. It imposed a sentence of 57 months on the robbery count and 120 months for the

firearm count, to run consecutively, for a total term of 177 months.

       While Becton’s direct appeal was pending, the Supreme Court issued its decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013). Becton’s counsel filed a brief pursuant to

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United States v. Becton


Anders v. California, 386 U.S. 738 (1967), indicating that the district court committed no

reversible error. However, this court determined that the question of whether Becton’s sentence

violates Alleyne was a non-frivolous one and ordered briefing on the question.

                                                   II.

        We review for plain error where the defendant did not raise a Sixth Amendment

challenge in the district court and the Supreme Court decided Alleyne during the pendency of the

appeal. United States v. Mack, 729 F.3d 594, 607 (6th Cir. 2013). “[B]efore an appellate court

can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects

substantial rights.” Johnson v. United States, 520 U.S. 461, 466−67 (1997) (internal quotation

marks and alteration omitted). “If these three conditions are met, then we may exercise our

discretion to notice the forfeited error, but only if we find the error seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” Mack, 729 F.3d at 607.

        Congress has established a three-tier sentencing scheme for a person who “during and in

relation to any crime of violence . . . uses or carries a firearm.” 18 U.S.C. § 924(c). The

mandatory minimum for using or carrying a firearm is five years, but if the firearm is

“brandished,” the minimum is seven years, and if the firearm is “discharged,” the minimum is

ten years. Id. § 924(c)(1)(A).

        In 2000, the Supreme Court held that “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a

reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In Alleyne, the Court

extended that rule to preclude judicial fact-finding from increasing statutory minimums, as well

as maximums. 133 S. Ct. at 2155. There, the defendant was charged with using or carrying a

firearm in relation to a crime of violence under § 924(c), which has a five-year mandatory

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United States v. Becton


minimum sentence. Id. at 2155−56. The jury form indicated that he had “[u]sed or carried a

firearm” but not that he had “brandished” the firearm. Id. at 2156. Nonetheless, the presentence

report recommended a seven-year minimum sentence for brandishing, and the district court

imposed the higher mandatory minimum over the defendant’s objection.              On appeal, the

Supreme Court explained that “because the fact of brandishing aggravates the legally prescribed

range of allowable sentences, it constitutes an element of a separate, aggravated offense that

must be found by the jury.” Id. at 2162. However, the Court also observed that its ruling “does

not mean that any fact that influences judicial discretion must be found by a jury,” because the

Court has “long recognized that broad sentencing discretion, informed by judicial factfinding,

does not violate the Sixth Amendment.” Id. at 2163. “Within established limits . . . the exercise

of sentencing discretion does not contravene the Sixth Amendment even if it is informed by

judge-found facts.” Id. (internal quotation marks and alterations omitted). “Nothing in this

history suggests that it is impermissible for judges to exercise discretion―taking into

consideration various factors relating both to offense and offender―in imposing a judgment

within the range prescribed by statute.” Id. (internal quotation marks and alterations omitted).

       Becton argues that his sentence violates the Sixth Amendment rule laid down in Alleyne.1

The government responds that this case is fundamentally different: after the district court

granted the government’s motion for downward departure, there was no mandatory minimum,

not even five years for using or carrying the firearm.         Accordingly, the fact of firearm

“discharge” did not increase the mandatory minimum as required to trigger Alleyne’s protections.



       1
         On appeal, Becton does not challenge the district court’s underlying Guidelines
calculation. He has therefore forfeited this argument. See, e.g., United States v. Wade, 266 F.3d
574, 585−86 (6th Cir. 2001).
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No. 12-5851
United States v. Becton


       In the past year, we have considered Alleyne’s applicability in several contexts. In United

States v. James, 575 F. App’x 588, 589 (6th Cir. 2014), we considered at length whether a

district court’s application of a “cross reference” under the Guidelines violated Alleyne. In that

case, the defendant pleaded guilty to being a felon in possession of a firearm under 18 U.S.C.

§ 922(g)(1), but the court, applying the “cross reference,” sentenced the defendant as if he had

committed attempted second-degree murder. Id. Like here, there was no fact that technically

increased a mandatory minimum sentence, but the defendant argued more broadly that Alleyne’s

expansive language “call[ed] into question the practice of sentencing defendants based on

uncharged conduct.” Id. at 593. Reading Alleyne with care, we considered whether the advisory

nature of the Guidelines was controlling, despite the fact that the “cross reference” had the effect

of more than doubling the defendant’s Guidelines range. Id. at 594−95. Although we observed

that the Supreme Court recognized in Peugh v. United States “that the guidelines, in practice, at

least drive, if not determine, a defendant’s sentence,” and a sentence outside a Guidelines range

is “often unlikely,” id. (quoting Peugh, 133 S. Ct. 2072, 2083−84 (2013)), Peugh does not cast

doubt on Sixth Amendment sentencing cases because “the Sixth Amendment and Ex Post Facto

Clause inquiries are analytically distinct,” id. at 595 n.8 (internal quotation marks omitted); see

also Peugh, 133 S. Ct. at 2088 (“The Booker remedy was designed, and has been subsequently

calibrated, to exploit precisely this distinction: it is intended to promote sentencing uniformity

while avoiding a Sixth Amendment violation.”).

       In James, we ultimately “decline[d] to extend Alleyne beyond its four corners” for three

reasons: (1) if the Court had intended “to create a sea change in sentencing practice, it would

have said so expressly,” (2) the Court expressly stated that Alleyne “does not mean that any fact

that influences judicial discretion must be found by a jury,” 133 S. Ct. at 2163, and (3) at least

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United States v. Becton


four post-Alleyne cases in the Sixth Circuit “have taken for granted” that Alleyne only applies to

mandatory minimum sentences. 575 F. App’x at 595; see Rogers v. United States, 561 F. App’x

440, 444 (6th Cir. 2014) (because the Guidelines “are advisory, rather than mandatory,

. . . judicial factfinding that affects the [Guidelines] calculation does not fit within the category of

facts required under Alleyne to be found by a jury”); United States v. Harris, 552 F. App’x 432,

439 n.4 (6th Cir. 2014) (“The judicial fact-finding here did not affect the statutorily authorized

penalties, so Alleyne is not implicated.”); United States v. Cook, 550 F. App’x 265, 275 (6th Cir.

2014) (Alleyne does not require reversal because “[n]o statutory mandatory minimum applied to

[the defendant’s] convictions”); United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013)

(“Alleyne did not extend Apprendi to facts that do not increase the prescribed statutory

penalties.”).

        In this case, Becton challenges only his 120-month firearm sentence, not the district

court’s underlying Guideline calculation. In line with our other post-Alleyne cases, we decline to

extend Alleyne “beyond its four corners” to judicial fact-finding that does not increase the

mandatory minimum. Accordingly, we find no error, let alone plain error.

                                                  III.

        For these reasons, we affirm the judgment of the district court.




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