               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0536n.06
                            Filed: June 22, 2005

                                          No. 04-4493

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )       ON APPEAL FROM THE
       Plaintiff-Appellant,                             )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE NORTHERN
v.                                                      )       DISTRICT OF OHIO
                                                        )
JAMES K. BRICENO,                                       )                          OPINION
                                                        )
       Defendant-Appellee.                              )




BEFORE:       BATCHELDER and COLE, Circuit Judges; REEVES, District Judge*

       R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant, the United States of America,

appeals the sentence imposed by the district court against Defendant-Appellee, James K. Briceno,

based on Briceno’s guilty plea to being a felon in possession of a firearm. The government argues

the district court erred in granting Briceno a six-level downward departure. For the following

reasons, we AFFIRM the judgment of the district court.

                                      I. BACKGROUND

       In 1992, James K. Briceno pleaded guilty to marijuana trafficking, a felony under Ohio law.

In 2004, the police conducted a search of Briceno’s residence based on a confidential informant’s

statement that Briceno dealt illegal drugs from his home. When the police arrived, Briceno openly


       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
admitted he had an unloaded firearm and marijuana for personal use in a locked box. He explained

that his nephew had found the gun in the mud while playing outside, and that he had taken the gun

from his nephew and placed it in a locked box to keep it away from his children. Briceno told police

he had never fired the gun. Briceno also told police that he had never purchased ammunition for the

weapon. The police conducted a full search of the residence and found cocaine, marijuana, drug

paraphernalia, and a semi-automatic pistol in the locked box. They did not, however, find any

ammunition for the firearm.

       Briceno pleaded guilty to being a felon in possession of a firearm but did not enter into a plea

agreement with the government. The charges based on the narcotics are currently pending in state

court. Prior to sentencing for the felon-in-possession charge, the U.S. Probation Office prepared a

pre-sentence investigation report. The report indicated that the base offense level for a violation of

the felon-in-possession statute, 18 U.S.C. § 922(g), was 20. U.S.S.G. § 2K2.1(a)(4)(A). The report

recommended a two-level decrease in Briceno’s offense level based on his acceptance of

responsibility, U.S.S.G. § 3E1.1(a), and a potential additional one-level decrease under U.S.S.G. §

3E1.1(b) based on Briceno’s timely notification of his guilty plea. The report indicated Briceno’s

past criminal conduct placed him in Criminal History Category II.

       At the sentencing hearing, the government recommended a three-level decrease in the

offense level based upon the referenced provisions of the guidelines. The court granted this

decrease. The court then indicated that this was “an unusual case” and granted the defendant a six-

level downward departure based on factors which the court deemed “outside the heartland of cases

considered by the sentencing commission.” U.S.S.G. § 5K2.0. The court based this departure on



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several factors. First, the court noted that Briceno’s nephew had found the gun and that it only

entered Briceno’s possession after Briceno’s wife took the gun from his nephew and gave it to him.

The court indicated that Briceno secured the gun in a lockbox and never obtained bullets for it.

Next, the court indicated that the defendant had a wife and three children, had complied with all

pretrial monitoring, and had not been in trouble with the law for almost 13 years. The district court

stated that these factors additionally justified the departure. The court then sentenced Briceno to five

months of imprisonment, five months of home confinement, and two years of supervised release.

The court also noted:

       [T]he sentence I have just imposed under the guidelines is the same sentence I will
       impose and would have imposed had the guidelines not been in place. Under 18
       United States Code, Section 3553, I have determined this sentence by considering,
       as I’ve stated on the record, the nature and circumstances of this particular offense
       and the history and characteristics of this defendant, and I believe that the sentence
       reflects the seriousness of the offense, it promotes respect for the law, and it will
       provide just punishment for the offense and thereby deter further criminal activity
       by not just this defendant, but those in similar positions in the future. And I believe
       it will protect the public from further crimes of this nature from the defendant.

The government appealed.

                                           II. ANALYSIS

       The Supreme Court’s recent decision in United States v. Booker, 125 S. Ct. 738 (2005), does

not require remand for resentencing in this case. There is no Sixth Amendment violation at issue

here, as the district court did not engage in fact-finding that would increase the sentence above that

statutorily allowed by the facts proven to the jury. See Booker, 125 S. Ct. at 755-56; United States

v. Oliver, 397 F.3d 369, 378-381 (6th Cir. 2005). In addition, although the court did sentence

Briceno (perhaps incorrectly) under the mandatory guidelines, it indicated that the defendant would



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have received the same sentence absent the existence of the sentencing guidelines. Therefore, there

is no reversible error based on the now-discretionary nature of the guidelines. Cf. United States v.

Barnett, 398 F.3d 516, 526-30 (6th Cir. 2005).

       We must therefore determine whether the district court’s sentencing decision was

“reasonable.” Booker, 125 S. Ct. at 766. In making this determination, we first refer to the

sentencing guidelines. In addition, we review the court’s application of the sentencing guidelines

de novo. United States v. Hazelwood, 398 F.3d 792, 795, 800-01 (6th Cir. 2005).

       The district court appropriately calculated the guideline range for Briceno’s offense based

on Briceno’s criminal history category and his offense level, adjusted by three levels based on

Briceno’s acceptance of responsibility and his timely notification of his guilty plea. U.S.S.G. §§

3E1.1(a), (b). The court then granted Briceno a six-level downward departure based on the unique

circumstances surrounding Briceno’s acquisition and possession of the firearm, his family

responsibilities, his compliance with pretrial monitoring, and the length of time that had passed since

his prior felony offense. Under the mandatory guidelines, these factors were prohibited or

discouraged. However, the question for this Court is whether the district court’s decision to grant

the defendant a six-level downward departure based on these previously discouraged or prohibited

factors was reasonable after Booker.

       In a similar case, this Court recently examined a district court’s downward departure from

the applicable guideline range based on factors previously discouraged under the mandatory

guidelines. See United States v. Jackson, No. 04-3074, 2005 WL 1280992, at *2 (6th Cir. May 24,

2005). We observed in Jackson that although the downward departure based on previously



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discouraged and prohibited factors “would almost certainly have been problematic under the

Guidelines” prior to the Supreme Court’s decision in Booker, the court’s departure may be

reasonable under the now-discretionary guidelines. Id. at *3. Because the district court failed to

provide “any accompanying analysis,” however, the Court remanded the appeal for analysis “to

enable this [C]ourt to engage in a meaningful reasonableness review of federal criminal sentences

in accordance with Booker.” Id. The Court indicated that an appropriate analysis should include

the applicable guideline range, a discussion of the reasonableness of a variation from that range, the

advisory provisions of the guidelines, and the factors in 18 U.S.C. § 3553(a).

        The district court in this case appropriately calculated the guideline range, explained its

departure from that range, noted the advisory provisions of the guidelines, and considered the factors

contained in 18 U.S.C. § 3553(a). Unlike in Jackson, we have a sufficient record for reasonableness

review. Upon review of the record, the guideline range, and the justifications set forth by the district

court, we cannot conclude that the departure was unreasonable. The court noted that the unique

circumstances surrounding the acquisition and possession of the firearm placed this case “outside

of the heartland” of cases considered by the sentencing commission, citing U.S.S.G. § 5K2.0. In

addition, the court explained that Briceno’s family circumstances, his compliance with pretrial

services, and the time since his previous felony, also justified the departure. Although these factors

were inappropriate for consideration under the mandatory guidelines, they provide a justification

for a sentence decrease under the now-discretionary guidelines. 18 U.S.C. § 3553.

                                        III. CONCLUSION

        For the preceding reasons, we AFFIRM the judgment of the district court.



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