                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0092n.06
                          Filed: February 6, 2006

                                          05-5077

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


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




       Before: NELSON, DAUGHTREY, and ROGERS, Circuit Judges.


       PER CURIAM. The defendant, James Stanback, appeals the sentence imposed by

the district court following his entry of a guilty plea to the charge of being a felon in

possession of a firearm. Because the sentencing order was entered prior to the release

of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738

(2005), the district court imposed a 37-month term of incarceration in accordance with the

then-mandatory provisions of the United States Sentencing Guidelines. The defendant

contends that the district judge erred in not submitting to a jury the question of whether his

prior conviction involved a “crime of violence,” and in treating the suggested guideline

sentencing range as mandatory.
       Even after Booker, a sentencing court need not submit issues regarding the fact or

nature of prior convictions to a jury. The district judge thus did not err in determining that

Stanback had committed a prior crime of violence. However, because the court treated the

sentencing guidelines as mandatory, the case must be remanded for resentencing under

Booker.


                   I. FACTUAL AND PROCEDURAL BACKGROUND


       Following Stanback’s guilty plea, the district court determined that Stanback’s prior

felony conviction was for a “crime of violence” and thus assigned him a base offense level

of 20, rather than the base offense level of 14 otherwise provided by the sentencing

guidelines. See U.S. SENTENCING GUIDELINES MANUAL §§ 2K2.1(a)(4)(A), 2K2.1(a)(6). After

concluding that the defendant had a criminal history category of III and deserved a three-

level reduction for acceptance of responsibility, the district court ordered that Stanback be

sentenced in the range provided for level 17, criminal history category III – between 30 and

37 months.


       Before imposing sentence, the district judge noted that the defendant had recently

been convicted of another offense, this one involving “simple assault, domestic violence.”

The court then indicated “because of this new conviction that a sentence at the upper end

of the range is appropriate . . . I’m going to commit you to the custody of the Bureau of

Prisons for a term of 37 months,” the maximum sentence in the applicable guideline range.

Stanback now appeals the propriety of that term of imprisonment.




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                                      II. DISCUSSION


       In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court

confirmed that “[o]ther than the fact of a prior conviction, 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.” Id. at 490. See also Booker, 543 U.S. at ___, 125

S.Ct. at 756. Stanback now asserts that the district court violated this constitutional

principle by itself determining, without concession by the defendant or the intervention of

a jury, that one of Stanback’s prior felony convictions was for a “crime of violence.” We

recently held, however, that


       . . . case law establish[es] that Apprendi does not require the nature of prior
       convictions to be determined by a jury. . . . Moreover, there is no language
       in Booker suggesting that the Supreme Court, as part of its remedial scheme
       adopted in that case, intended to alter the exception to Apprendi allowing
       district courts to consider the fact and nature of prior convictions without
       submitting those issues to the jury.


United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (emphasis added).


       Stanback argues that the efficacy of Barnett has been undermined by the United

States Supreme Court’s opinion in Shepard v. United States, 125 S.Ct. 1254 (2005). In

Shepard, the Court held that a sentencing court may not “look to police reports or complaint

applications to determine whether an earlier guilty plea necessarily admitted, and supported

a conviction for, generic burglary.” Id. at 1257. Instead, the Court reaffirmed that a

sentencer “determining the character of an admitted burglary is generally limited to

examining the statutory definition, charging document, written plea agreement, transcript


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of plea colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” Id. Thus, Shepard did not outlaw judicial fact-finding in the context of prior

convictions, but rather merely limited the sources of information that a sentencing court can

consider.


       Stanback’s prior conviction at issue in this appeal was for “aggravated assault,” an

offense defined statutorily in Tennessee as an intentional, knowing, or reckless assault that

“causes serious bodily injury to another,” or that involves the use or display of a deadly

weapon. See TENN. CODE ANN. §§ 39-13-102(a)(1) and (2). Because the district court could

determine, without reference to potentially biased opinions or conjecture, that such a

criminal act clearly constitutes a “crime of violence,” the court did not err in considering the

prior offense in the calculation of the appropriate base offense level. Stanback is not

entitled to resentencing on this basis.


       The defendant is, however, entitled to a new sentencing hearing to determine the

appropriate sentence under the now non-mandatory sentencing guidelines, following the

amendment of the presentence report to reflect his subsequent conviction and its effect,

if any, on his criminal history calculation. See Barnett, 398 F.3d at 525-30.


                                     III. CONCLUSION


       For the reasons set out above, this case is REMANDED to the district court for

resentencing.




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