                      NOT RECOMMENDED FOR PUBLICATION
                             File Name: 05a0210n.06
                              Filed: March 24, 2005

                                      No. 04-3330

                        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
DERRICK L. CARTER,                                  Northern District of Ohio.

      Defendant-Appellant.
                                           /

BEFORE:       RYAN and COOK, Circuit Judges; BELL, District Judge.*

      RYAN, Circuit Judge.        Derrick L. Carter was convicted of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district

court sentenced Carter to 41 months’ imprisonment, followed by three years of supervised

release, and a $100 special assessment. As additional conditions of supervised release,

Carter was ordered to participate in an outpatient program for the treatment of drug or

alcohol abuse, including substance abuse testing, and an outpatient mental health

program. On appeal, Carter challenges his conviction and alleges several sentencing

errors. After reviewing the record, we AFFIRM Carter’s conviction. However, we VACATE

his sentence and REMAND for resentencing in light of United States v. Booker, 125 S. Ct.

738 (2005).



*
The Honorable Robert Holmes Bell, Chief United States District Judge for the Western
District of Michigan, sitting by designation.
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                                               I.

       First, Carter argues that the district court plainly erred by incorrectly instructing the

jury on the meaning of reasonable doubt. The instruction used by the district court is taken

from Pattern Criminal Jury Instructions, U.S. Sixth Cir. District Judges Ass’n, 1.03 (1991),

and has been explicitly approved by this court in United States v. Goodlett, 3 F.3d 976, 979

(6th Cir. 1993). The defendant’s assignment of error is without merit.

                                              II.

       Next, Carter alleges several sentencing errors, among which is that the district court

erred when it sentenced Carter under the Sentencing Guidelines believing they were

mandatory, rather than merely advisory. See Booker, 125 S. Ct. at 757.

       Because Carter failed to object at sentencing to the mandatory application of the

Guidelines, we review for plain error. United States v. Barnett, 398 F.3d 516, 525 (6th Cir.

2005). An appellate court may exercise its discretion to correct an error not raised below

only if the error is plain and affects substantial rights. Johnson v. United States, 520 U.S.

461, 466-67 (1997). Even then, it is within an appellate court’s discretion whether or not

to correct such an error. Id. at 467.

       The district court erred when it treated the Guidelines as mandatory, and, although

the error was not plain at sentencing, it is sufficient that the error is plain at the time of

appellate consideration. Barnett, 398 F.3d at 525 (citing Johnson, 520 U.S. at 468).

Therefore, the determinative question is whether the error affected the defendant’s

substantial rights, i.e., whether the defendant was prejudiced.

       Under the Sentencing Guidelines, pre-Booker, Carter’s criminal history category of

III, and offense level of 20, mandated a sentence range of 41-51 months’ imprisonment.
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The district judge sentenced Carter at the lower end of this range, 41 months. In Barnett,

this court held, as a matter of law, that a sentence to confinement at the bottom of the

Guideline range supports an inference of prejudice, and that ordinarily prejudice should be

presumed. 398 F.3d at 527. We are bound by Barnett.

       The Barnett rule presuming prejudice is augmented, in this case, by a record that

strongly suggests that the district judge thought himself constrained by the Guidelines.

After imposing this sentence, the judge stated: “I just don’t think the guidelines give me any

ability to be more lenient than that. You’re caught in that set of circumstances.” The

obvious inference here, is that the judge may have imposed a lower sentence had he

known (as he could not possibly have known) that the Supreme Court would later hold in

Booker, with retroactive effect, that the Guidelines were merely advisory. We think the

court’s “error” affected Carter’s substantial rights.

       Finally, under the plain error rule, we may exercise our discretion to correct the error

only where it “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks

and citations omitted). Carter understandably failed to present his objection to the district

court, because his sentencing hearing was held on April 4, 2004, well before the Supreme

Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004), and Booker were

released. Considering the sea change in federal sentencing brought about by Booker,

foreshadowed by Blakely, and the reasonable possibility that Carter could receive a lesser

sentence under the advisory Guidelines, we believe this is an appropriate case to exercise

our discretion.

                                              III.
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      Carter also insists the district court abused its discretion in ordering him to undergo

mandatory drug testing and to participate in drug and alcohol abuse programs as conditions

of supervised release. Carter acknowledges that he did not contemporaneously object to

the conditions of release. We find no error, and certainly no plain error, in the district

court’s imposition of these requirements.

                                            IV.

      For the foregoing reasons, we AFFIRM Carter’s conviction, but VACATE his

sentence and REMAND for resentencing.
