                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0454n.06
                            Filed: August 1, 2008

                                           No. 04-4468

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
        Plaintiff-Appellee Cross-Appellant,      )
                                                 )
v.                                               )
                                                 )    ON APPEAL FROM THE UNITED
GARY T. HOHN,                                    )    STATES DISTRICT COURT FOR THE
                                                 )    NORTHERN DISTRICT OF OHIO
        Defendant-Appellant Cross-Appellee.      )
                                                 )
                                                 )



        Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
        ROGERS, Circuit Judge. This case is part of a consolidated appeal involving thirteen

defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international

motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau

of Investigation and state law enforcement agencies began an investigation into the Green region of

the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky;

Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury

in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with

various federal offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”),

drug trafficking, and firearms offenses. The defendants were tried together before an anonymous

jury.
No. 04-4468
USA v. Hohn

       Defendant Gary T. Hohn was a member and former president of the OMC’s Dayton chapter.

Following trial, Hohn was convicted on one count of substantive RICO, in violation of 18 U.S.C.

§ 1962(c), one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d), one count of

conspiracy to possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846, one count

of conspiracy to use or carry a firearm during and in relation to a drug trafficking crime or crime of

violence, in violation of 18 U.S.C. § 924(o), one count of possessing with intent to distribute LSD,

in violation of 21 U.S.C. § 841(a), and one count of attempted collection of extensions of credit by

extortion, in violation of 18 U.S.C. § 894. On November 3, 2004, Hohn was sentenced to 121

months’ imprisonment on the RICO, drug trafficking conspiracy, possession with intent to distribute,

and extortion counts, and 60 months’ imprisonment on the firearms conspiracy count, to run

consecutively.


       Hohn presents three challenges to his conviction: (1) that he was indicted in violation of the

statute of limitations set out in 18 U.S.C. § 3282; (2) that the evidence was insufficient to convict

him on all counts; and (3) that the district court committed reversible error in admitting evidence of

crimes unrelated to the charges against him. These contentions lack merit. Additionally, both Hohn

and the government appeal Hohn’s sentence. The district court erred in applying the sentencing

guidelines as mandatory and in applying the mandatory and consecutive sentencing provisions of 18




                                                -2-
No. 04-4468
USA v. Hohn

U.S.C. § 924(c).1 Remand to address these sentencing errors obviates the need for us to address the

government’s cross-appeal.


                                                   I.


        As an initial matter, Hohn’s indictment did not violate the statute of limitations set out in 18

U.S.C. § 3282. Although Hohn claims to have raised this issue in the district court, the record

indicates otherwise. Accordingly, plain error review applies to Hohn’s statute of limitations claim.

“To establish plain error, a defendant must show (1) that an error occurred in the district court; (2)

that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial

rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation

of the judicial proceedings.” United States v. Schulte, 264 F.3d 656, 660 (6th Cir. 2001). Review

of the record indicates that no error, plain or otherwise, occurred with respect to the statute of

limitations.


        Because the indictment in this case was returned on April 8, 2003, the relevant question is

whether the charges against Hohn were based upon conduct that occurred on or after April 8, 1998.2


        1
         Hohn also incorporated various arguments made by his co-defendants. Some of those
arguments cannot coherently be applied to Hohn’s case. And to the extent that the arguments can
coherently be applied to Hohn’s case, the arguments are unavailing for the reasons stated in United
States v. Garland, No. 04-4474, __ WL __ (6th Cir. 2008); United States v. Lawson, No. 04-4480,
__ F.3d __ (6th Cir. 2008); United States v. Puttick, No. 05-3408, __ WL __ (6th Cir. 2008); and
United States v. Walker, No. 04-4478, __ WL __ (6th Cir. 2008).
        2
        Hohn erroneously claims in his brief that he was indicted on February 4, 2004. The
indictment is clearly dated April 8, 2003.

                                                 -3-
No. 04-4468
USA v. Hohn
With respect to the substantive RICO count, the statute of limitations is satisfied if Hohn “committed

at least one predicate act within the five-year limitations period.” United States v. Saadey, 393 F.3d

669, 677 (6th Cir. 2005). The jury found that Hohn committed Racketeering Acts 1(A), 2, 19(A),

and 19(B). Racketeering Act 1(A) was alleged to have occurred from 1990 through the date of the

indictment, April 8, 2003. That racketeering act incorporated by reference the indictment’s drug

conspiracy count, which alleged over 200 acts occurring after April 8, 1998. Further, Racketeering

Act 2 alleged that Hohn engaged in the distribution of drugs on June 20, 1998. This conduct clearly

occurred after the relevant limitations date. Because the record establishes that Hohn committed

these predicate acts within the statute of limitations period set out in 18 U.S.C. § 3282, Hohn’s

indictment for the substantive RICO offense was proper.


       With respect to the RICO conspiracy and drug trafficking conspiracy counts, the statute of

limitations is satisfied if the government “alleges and proves that the conspiracy continued into the

limitations period.” United States v. Harriston, 329 F.3d 779, 783 (11th Cir. 2003). “A conspiracy

is deemed to have continued as long as the purposes of the conspiracy have neither been abandoned

nor accomplished and the defendant has not made an affirmative showing that the conspiracy has

terminated.” Id. Continuing participation can be rebutted with evidence that the defendant

“affirmatively withdrew from the conspiracy or that the final act in furtherance of the conspiracy has

occurred.” Id. It is clear from the record and indictment that the RICO and drug trafficking

conspiracies alleged and proved by the government continued well past April 8, 1998. As there is

no evidence, and Hohn does not argue on appeal, that Hohn withdrew from the conspiracy prior to


                                                -4-
No. 04-4468
USA v. Hohn
April 8, 1998, the prosecution of Hohn for RICO conspiracy and drug trafficking conspiracy was

proper.


          Finally, with respect to the remaining counts (firearms conspiracy, possession with intent to

distribute, and extortion), the government alleged in the indictment conduct that occurred after April

8, 1998 with respect to all three counts. Hohn’s statute of limitations claim is therefore without

merit.


                                                  II.


          Hohn’s second argument—that the evidence adduced at trial was insufficient to convict him

on all counts—is also without merit. This court reviews de novo the sufficiency of the evidence to

sustain a conviction. United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990). Evidence is

sufficient to sustain a conviction if “after viewing the evidence in the light most favorable to the

prosecution, and after giving the government the benefit of all inferences that could reasonably be

drawn from the testimony, any rational trier of fact could find the elements of the crime beyond a

reasonable doubt.” United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 589 (6th Cir. 1999)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In examining claims of insufficient evidence,

this court does not “weigh the evidence presented, consider the credibility of witnesses, or substitute

[its] judgment for that of the jury.” Id. at 588-89.


          The record contains common evidentiary support for the RICO counts, the narcotics

conspiracy count, the narcotics distribution count, and the extortionate credit transactions count.

                                                  -5-
No. 04-4468
USA v. Hohn
This is so because, in support of the substantive RICO count, the jury found that Hohn committed

Racketeering Acts 1(A), 2, 19(A), and 19(B). Racketeering Act 1(A) incorporated the narcotics

conspiracy count, and Racketeering Act 2 charged Hohn with possession with intent to distribute 100

unit doses of LSD, incorporating the possession with intent to distribute count.              Further,

Racketeering Acts 19(A) and 19(B) charged Hohn with extortionate credit transactions, and these

racketeering acts involved conduct similar to that charged of Hohn in the extortionate credit

transactions count.


       For purposes of the narcotics conspiracy count and Racketeering Act 1(A), the government

introduced considerable evidence to allow a rational trier of fact to conclude beyond a reasonable

doubt that Hohn engaged in a prolonged narcotics conspiracy. The government also introduced

evidence sufficient to convict Hohn of possession with intent to distribute 100 unit doses of LSD

(Racketeering Act 2/possession with intent to distribute count).


       To prove a narcotics conspiracy under 21 U.S.C. § 846, “the government must prove, beyond

a reasonable doubt, ‘(1) an agreement to violate drug laws, (2) knowledge and intent to join the

conspiracy, and (3) participation in the conspiracy.’” United States v. Gibbs, 182 F.3d 408, 420 (6th

Cir. 1999) (quoting United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996)). “Proof of a formal

agreement is not required to establish a conspiracy; ‘a tacit or material understanding among the

parties’ is sufficient.” United States v. Henley, 360 F.3d 509, 513 (6th Cir. 2004) (quoting United

States v. Pearce, 912 F.2d 159, 161 (6th Cir. 1990)). To establish possession with intent to distribute

narcotics under 21 U.S.C. § 841(a)(1), the government must prove beyond a reasonable doubt that

                                                 -6-
No. 04-4468
USA v. Hohn
Hohn (1) knowingly, (2) possessed a controlled substance, (3) with intent to distribute it. United

States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995).3


       At trial, Tracy Tipton testified that she lived with Hohn from the late 1980s or early1990s

until March 1998 and that Hohn was affiliated with the OMC during that time. Tipton testified that

Hohn sold marijuana during the time that she resided with him. Tipton also testified that Hohn dealt

in cocaine and estimated that he distributed at least 20 kilograms of cocaine over a two year period

while the couple lived on Parsons Avenue in Dayton, Ohio. Tipton stated that Patrick Puttick,

another OMC member, was Hohn’s cocaine supplier and that Hohn obtained three to six kilograms

of cocaine per month from Puttick. James Dilts, a probationary member of the OMC, further

testified that Hohn provided him with six to seven ounces of cocaine to sell in order for Dilts to meet

his OMC obligations. Testimony at trial also established that on June 20, 1998, Dilts, under FBI

supervision, made a controlled purchase of 100 unit doses of LSD from Hohn. During the

transaction, Hohn stated “[w]e sold 50,000 of these . . . in a couple two days.”



       3
         In his brief, Hohn also asserts that 21 U.S.C. § 841(a)(1), (b)(1)(A) and 21 U.S.C. § 846 are
unconstitutional as applied to him because there is no evidence that the marijuana, cocaine, or LSD
allegedly sold by him had any effect on interstate commerce. This argument is without merit. See
United States v. Tucker, 90 F.3d 1135, 1140-41 (6th Cir. 1996); United States v. Collier, 246 F.
App’x 321, 336-38 (6th Cir. 2007) (addressing Commerce Clause attack on 21 U.S.C. § 841(a)(1)
and noting that section 841(a)(1) “addresses a clearly commercial activity that has long been within
federal power to regulate” (quoting Tucker, 90 F.3d at 1140)); United States v. Genao, 79 F.3d 1333,
1336 (2d Cir. 1996) (holding that section 846 does not violate the Commerce Clause and noting that
“[b]ecause narcotics trafficking represents a type of activity that Congress reasonably found
substantially affected interstate commerce, the actual effect that each drug conspiracy has on
interstate commerce is constitutionally irrelevant.”).


                                                 -7-
No. 04-4468
USA v. Hohn
       The testimony of Tipton and Dilts was sufficient to convict Hohn of Racketeering Acts 1(A)

and 2, the narcotics conspiracy count, and the possession with intent to distribute count. This

testimony establishes that Hohn knowingly entered into at least a tacit agreement with other

members of the OMC to violate the drug laws and that Hohn was a participant in the conspiracy. The

testimony also establishes that Hohn knowingly possessed a controlled substance, 100 unit doses of

LSD, with intent to distribute it. While much of Hohn’s argument against the sufficiency of the

evidence for these charges asks this court to weigh the credibility of the witnesses against him,

credibility determinations are the province of the jury.


       The evidence was also sufficient to convict Hohn on the extortionate credit transactions count

and Racketeering Acts 19(A) and 19(B). In order to convict a defendant under 18 U.S.C. §

894(a)(1), the government must prove that: (1) there was principal or interest outstanding on an

extension of credit; (2) the defendant actually collected or attempted to collect sums due; and (3) the

defendant employed extortionate means to collect the same. United States v. Chen, 378 F.3d 151,

160 (2d Cir. 2004). The term “extortionate means” is defined in 18 U.S.C. § 891(7) as “any means

which involves the use, or an express or implicit threat of use, of violence or other criminal means

to cause harm to the person, reputation, or property of any person.”


       The evidence elicited at trial established that on February 20, 1998, Hohn and other OMC

members traveled to James Dilts’s residence to collect money that Dilts owed Hohn. Dilts testified

that Hohn had been supplying him with cocaine that Dilts was supposed to sell to pay his dues to the

OMC. Dilts testified that Hohn would supply him with cocaine, which Dilts would sell and pay

                                                 -8-
No. 04-4468
USA v. Hohn
Hohn $1,500 per week from the sales, and that Dilts quickly fell behind in payments to Hohn. Sheila

Dilts, James Dilts’s wife, testified that on February 20, 1998, OMC associate James Reichelderfer

confronted her at the Dilts’s home while Hohn waited outside in a van. Reichelderfer, who was

armed with a pistol around his waist, told Sheila Dilts that he was there to collect Hohn’s debt and

threatened to sexually assault Sheila and to shoot out James Dilts’s kneecaps. Reichelderfer also told

Sheila that James Dilts had better have the money owed to Hohn when Reichelderfer returned.

When Reichelderfer and Hohn returned to the Dilts’s home later that day, James Dilts paid

Reichelderfer $500. Additionally, testimony elicited at trial established that in July 1998, Hohn

telephoned Sheila Dilts’s workplace and told her that he wanted her to go to Detroit with him. Hohn

told Sheila that he would kill her if she told her husband about the phone call. Sheila Dilts testified

that Hohn had repeatedly contacted her for sex to pay off the debt her husband owed to Hohn.


       The testimony of James and Sheila Dilts was sufficient to allow a rational trier of fact to

conclude beyond a reasonable doubt that Dilts owed money to Hohn, and that Hohn attempted to

collect and collected on that debt through extortionate means on several occasions. The evidence

was therefore sufficient to convict Hohn of the extortionate credit transactions count and

Racketeering Acts 19(A) and 19(B).


       It follows from the above that the evidence was sufficient to convict Hohn of the substantive

RICO count. As discussed, the evidence was sufficient for a jury to find that Hohn committed two

or more predicate acts charged in the indictment—namely, Racketeering Acts 1(A), 2, 19(A), and

19(B). Nevertheless, Hohn contends that the “continuity plus relationship” standard of H.J. Inc. v.

                                                 -9-
No. 04-4468
USA v. Hohn
Northwestern Bell Telephone Co., 492 U.S. 229 (1989), is not satisfied with respect to those

predicate acts. Under that standard, “the government must establish not only that at least two

predicate acts occurred, but also a ‘relationship between the predicates’ and the ‘threat of continuing

activity[.]’” United States v. Blandford, 33 F.3d 685, 703 (6th Cir. 1994) (quoting H.J. Inc., 492 U.S.

at 239). “‘It is this factor of continuity plus relationship which combines to produce a pattern.’” Id.

(quoting H.J. Inc., 492 U.S. at 239).


       Hohn’s contention that the government did not establish continuity is belied by the record.

“‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period of

repeated conduct, or to past conduct that by its nature projects into the future with a threat of

repetition.” H.J. Inc., 492 U.S. at 241. “A closed period of continuity may be demonstrated ‘by

proving a series of related predicates extending over a substantial period of time.’” Moon v. Harrison

Piping Supply, 465 F.3d 719, 724 (6th Cir. 2006) (quoting H.J. Inc., 492 U.S. at 242). Continuity

is established in this case by evidence of the ongoing nature of the narcotics trafficking and

extortionate activities that Hohn engaged in, and by the substantial period of time over which Hohn’s

past activities occurred. The predicate acts that Hohn was charged with span almost 10 years (1990-

1998). Further, these predicate acts, by their nature, “involve a distinct threat of long-term

racketeering activity.” See Vild v. Visconsi, 956 F.2d 560, 569 (6th Cir. 1992) (quoting H.J. Inc.,

492 U.S. at 242). Evidence at trial indicated that trafficking in drugs and engaging in extortion were

integral parts of the OMC enterprise, and that proceeds from drug activity were used to fulfill

financial obligations to the OMC. Because continued operation of the OMC enterprise relied in part


                                                - 10 -
No. 04-4468
USA v. Hohn
on money obtained through drug trafficking, Hohn’s activities involved a distinct threat of long-term

racketeering activity. As the Supreme Court stated in H.J. Inc., 492 U.S. at 243, “[t]he continuity

requirement is likewise satisfied where it is shown that the predicates are a regular way of

conducting defendant’s ongoing legitimate business . . . or of conducting or participating in an

ongoing and legitimate RICO ‘enterprise.’”


       Hohn’s contention that the predicates were not sufficiently related similarly lacks merit. This

court has held that the “relationship or relatedness” requirement can be established through proof

that either: “(1) the defendant was enabled to commit the offense solely by virtue of his position in

the enterprise; or (2) the offense was related to the activities of the enterprise.” United States v.

Corrado, 227 F.3d 543, 554 (6th Cir. 2000) (quoting United States v. Locascio, 6 F.3d 924, 943 (2d

Cir. 1993)). The record indicates that the predicate acts for which Hohn was charged were related

to the activities of the enterprise charged in the indictment. The record is replete with evidence that

members of the OMC sold drugs, at least in part, to fulfill financial obligations to the OMC. And

the record also indicates that Hohn’s extortionate activities were tied directly to his involvement in

the drug trade. Consequently, evidence at trial was sufficient to establish that the predicate acts

charged of Hohn were related to the RICO enterprise charged in the indictment.


       With respect to the RICO conspiracy count, the evidence adduced at trial indicates that Hohn

was also properly convicted of that count. In analyzing the sufficiency of the evidence for a RICO

conspiracy conviction, this court



                                                - 11 -
No. 04-4468
USA v. Hohn
        must first determine if a conspiracy existed and then whether the defendant was a
        member of that conspiracy. Defendants’ agreement to participate in the RICO
        conspiracy may be inferred from their acts. Thus, for the RICO conspiracy counts,
        the government need not prove that each defendant personally committed two
        racketeering violations or overt acts in furtherance of the conspiracy.


United States v. Hughes, 895 F.2d 1135, 1141 (6th Cir. 1990) (citations omitted).           The record

indicates that the government introduced evidence sufficient for a rational trier of fact to find beyond

a reasonable doubt that Hohn participated in a conspiracy to violate the RICO statute. Based on the

evidence detailed above, a rational trier of fact could reasonably conclude that Hohn agreed to

participate in the affairs of the OMC through a pattern of racketeering activity. Hohn’s agreement

can be inferred through his actions. Testimony at trial established that Hohn dealt in large quantities

of narcotics and received those narcotics from OMC member Puttick. The testimony also

established that Hohn distributed narcotics to various individuals, including other OMC members.

The record contains evidence that drug dealing was regularly employed by OMC members to pay

the dues of the organization, and evidence at trial proved that Hohn employed extortionate tactics

to settle debts generated by his drug activity. Thus, ample evidence exists from which the jury could

infer that Hohn agreed with other members of the OMC enterprise to violate the RICO statute. Cf.

United States v. Starrett, 55 F.3d 1525, 1549 (11th Cir. 1995) (holding that because evidence was

sufficient to support defendants’ substantive RICO convictions, and because the jury could infer

from the evidence that defendants each agreed to participate in the affairs of the RICO enterprise

through a pattern of racketeering activity, the evidence was sufficient to support defendants’

convictions for RICO conspiracy).


                                                 - 12 -
No. 04-4468
USA v. Hohn
        Finally, the evidence was also sufficient to convict Hohn of conspiracy to carry or use

firearms during and in relation to drug trafficking or a crime of violence. At trial, Hohn’s ex-

girlfriend Tipton testified that Hohn often carried a .380 handgun on his wheelchair and kept other

firearms at their residence. Tipton testified that Hohn kept these weapons to safeguard their home,

persons, drugs, and money. This testimony is confirmed by evidence that authorities executed a

search warrant at Hohn’s home on March 1, 2001, where a .380 semiautomatic pistol was found on

Hohn’s wheelchair. Evidence elicited at trial also indicated that Hohn’s co-conspirator, Jamie

Reichelderfer, carried a gun around his waist when he confronted Sheila Dilts about James Dilts’s

drug debt to Hohn. When coupled with other evidence indicating that Hohn engaged in drug

trafficking and extortion, this evidence was sufficient to support a finding that Hohn conspired with

other members of the OMC enterprise to carry or use firearms during and in relation to drug

trafficking or crimes of violence.


        For the reasons stated above, the evidence adduced at trial was sufficient to convict Hohn on

all counts.


                                                  III.


        Moreover, the record establishes that the district court committed no error in admitting at trial

evidence of a shooting that occurred at Spanky’s Dollhouse in Dayton, Ohio. The Spanky’s incident

was charged against Hohn’s co-defendants Allen Lawson and Glen Carlisle as Racketeering Act 25.

The incident involved the shooting of Eric Coulter after a fight broke out between members of the


                                                 - 13 -
No. 04-4468
USA v. Hohn
OMC and a group of patrons at Spanky’s. Hohn was not implicated in the evidence introduced at

trial. Nonetheless, Hohn contends that this evidence was improperly admitted as Rule 404(b) “other

acts” evidence. In the alternative, Hohn argues that the evidence was unduly prejudicial. These

arguments are without merit.


       Because Hohn was not implicated in the Spanky’s incident, it is not clear from the record

whether the evidence was actually introduced against Hohn at trial. But even assuming that it was

so introduced, the evidence did not implicate Rule 404(b). As this court has previously noted, “Rule

404(b) is not implicated when the other crimes or wrongs evidence is part of a continuing pattern of

illegal activity.” United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). Indeed, “[b]ad acts

by other participants in a common scheme are admissible ‘as long as they constitute part of the same

criminal episode, whether or not a conspiracy is charged, and as long as independent evidence ties

the defendant to that scheme.’” United States v. Arbelaez-Agudelo, 19 F. App’x 203, 207 (6th Cir.

2001) (quoting United States v. Toney, 161 F.3d 404, 413-14 (6th Cir. 1998)). The record in this

case establishes that the conduct of Hohn’s OMC co-conspirators at Spanky’s was a part of the

overall criminal scheme charged by the government in the indictment. That is, it was an act of

violence that served to further the OMC’s reputation and power as a “fearsome group.” Cf. United

States v. Guzman, 7 F. App’x 45, 52 (2d Cir. 2001); United States v. Crockett, 979 F.2d 1204, 1213-

14 (7th Cir. 1992). Because, as discussed, there is ample independent evidence in the record tying

Hohn to that scheme, the evidence of the Spanky’s incident does not implicate Rule 404(b).




                                               - 14 -
No. 04-4468
USA v. Hohn
       Further, the evidence was not unduly prejudicial. The Spanky’s incident was directly

relevant to and probative of a racketeering act charged in the indictment. It was also relevant to and

probative of the overall criminal scheme employed by members of the OMC enterprise. Because

this probative value was not substantially outweighed by “the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence,” Fed. R. Evid. 403, admission of the evidence was proper.


                                                 IV.


       Hohn’s final argument pertains to his sentence. Hohn argues, and the government concedes,

that the district court committed plain error under United States v. Booker, 543 U.S. 220 (2005), by

applying the sentencing guidelines as mandatory. Hohn’s sentencing took place before the Supreme

Court issued the Booker decision. A review of the record indicates that the district court applied an

aggravating-role enhancement based on judge-found facts under the then-mandatory guidelines

regime, and that the district court failed to impose an identical, alternative sentence “under a regime

in which Guidelines enhancements are not mandatory.” See United States v. Christopher, 415 F.3d

590, 593 (6th Cir. 2005). Because this court has held that sentences imposed based on judicial fact-

finding under the mandatory guidelines regime satisfy the plain-error test, United States v. Davidson,

409 F.3d 304, 309 (6th Cir. 2005), we vacate and remand Hohn’s sentence.




                                                - 15 -
No. 04-4468
USA v. Hohn
        Although not an issue raised by Hohn on appeal, the district court also erred in imposing a

mandatory and consecutive sentence for Hohn’s firearms conspiracy conviction. Federal Rule of

Criminal Procedure 52(b) provides that “[a] plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.” Thus, “this Court has discretion

to correct plain errors affecting important rights of criminal defendants, even when not raised on

appeal.” United States v. Graham, 275 F.3d 490, 521 (6th Cir. 2001). Count 4 of the indictment

charged Hohn with participating in a firearms conspiracy in violation of 18 U.S.C. § 924(o). For that

conviction, Hohn was sentenced to a consecutive term of 60 months’ imprisonment. That

consecutive sentence was the product of the presentence report’s application of the mandatory

minimum provided for in 18 U.S.C. § 924(c)(1)(A)(i), and the mandatory consecutive sentence

provision found in § 924(c)(1)(D)(ii). Unlike § 924(c), however, § 924(o) by its terms does not

require a consecutive sentence and, similarly, § 924(c)’s mandatory minimums do not textually apply

to violations of § 924(o). See United States v. Stubbs, 279 F.3d 402, 409 (6th Cir. 2002) (“[T]hese

two statutory provisions call for significantly different statutory penalties . . . .”), abrogated on other

grounds as recognized in United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003); see also id. at

413 (dissenting op.) (minimum and consecutive requirements of § 924(c) “not mandated by the terms

of [§ 924(o)]”);4 Jackson v. United States, No. Civ. 1:01-CV-112, Crim. 1:99CR74, Crim.


        4
        The issue that divided our court in Stubbs was whether § 924(c)’s mandatory and
consecutive provisions applied indirectly to a violation of § 924(o) through a cross-referencing
provision in U.S.S.G. § 2K2.1. Stubbs, 279 F.3d at 407-10, 413-19. In this case, however, there is
no indication in the record or in the presentence report that the district court arrived at the mandatory
and consecutive sentence it imposed using the sentencing guidelines. We therefore decline to
express a view with respect to the approach discussed in Stubbs.

                                                  - 16 -
No. 04-4468
USA v. Hohn
1:99CR107, 2001 WL 34563133, at *2 (W.D.N.C. June 20, 2001) (“Petitioner was convicted of

conspiring to use and carry a firearm during bank robbery, in violation of 18 U.S.C. § 924(o), not

§ 924(c), and no mandatory minimum consecutive sentence is called for by that statute.”). Section

924(o), instead of incorporating for the conspiracy the penalties for the primary offense, provides

that “[a] person who conspires to commit an offense under subsection (c) shall be imprisoned for not

more than 20 years . . . and if the firearm is a machinegun or destructive device, or is equipped with

a firearm silencer or muffler, shall be imprisoned for any term of years or life.” This is in contrast

to statutory provisions like 21 U.S.C. § 846 (“Any person who attempts or conspires to commit any

offense defined in this subchapter shall be subject to the same penalties as those prescribed for the

offense . . . .”) (emphasis added). It was plainly erroneous to sentence Hohn according to the

mandates of § 924(c) when he was convicted of violating § 924(o) instead of § 924(c). The error

affected substantial rights because it subjected Hohn to a consecutive and mandatory sentence that

is not mandated by the statute. Further, the error seriously affected the fairness, integrity, and public

reputation of the judicial proceeding. Consequently, Hohn’s sentence for the firearms conspiracy

must be vacated and remanded for resentencing as well.


        Finally, the government argues on cross-appeal that the district court improperly determined

the drug quantity attributable to Hohn. We decline to address the government’s cross-appeal in light

of the remand. The government may raise the issue discussed in its cross-appeal before the district

court during the resentencing proceedings.




                                                 - 17 -
No. 04-4468
USA v. Hohn
                                              V.


       For the foregoing reasons, we vacate and remand this case with instructions to resentence

Hohn consistent with this opinion. We affirm Hohn’s convictions.




                                             - 18 -
