                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0933n.06
                               Filed: November 28, 2005

                                           No. 04-5848

                          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 WESTERN DISTRICT OF
RONALD DAVIS,                                           )    TENNESSEE
                                                        )
       Defendant-Appellant.                             )


Before: SILER and SUTTON, Circuit Judges; SHARP, District Judge.*

       SILER, Circuit Judge. Defendant Ronald Davis pled guilty to knowingly uttering and

possessing a counterfeited security with intent to deceive. He appeals his sentence (1) under Booker,

(2) for error in not granting a reduction for being a minimal or minor participant, and (3) for

miscalculation of criminal history. We REVERSE and REMAND for resentencing.

                                         BACKGROUND

       In 2001, John Riley approached Davis and stated that he knew someone who made

counterfeit checks. Id. Although Davis was uninterested in cashing the checks, he introduced Riley

to Keith McMinn, with whom Davis had a previous relationship involving counterfeit checks. The

three men agreed to split the proceeds of the checks. Later, Riley obtained a counterfeit check for



       *
        The Honorable Allen Sharp, United States District Judge for the Northern District of
Indiana, sitting by designation.
No. 04-5848
United States v. Davis

$32,000 and gave it to McMinn, who subsequently cashed it without notifying Davis. When Davis

learned the check was cashed, he felt he had been cheated and was owed $6,000. Accordingly, he

compelled McMinn to go to a bank to cash a personal check for Davis’s benefit.            After bank

officials became suspicious and called police, McMinn confessed and disclosed the details of the

scheme. McMinn later stated that an acquaintance of his, Lee Hale, had been threatened in her home

by Riley and an unknown man if McMinn should confess to the police. After McMinn’s release on

bond, Davis telephoned McMinn stating that Davis had “put a hit” on McMinn. Further, Davis told

McMinn that it “was on” and that McMinn owed him $6,000.

       Davis, Riley and McMinn were indicted on two separate counts of knowingly uttering and

possessing a counterfeited security with the intent to deceive. Davis pled guilty to Count 1 in 2004

and was sentenced under the 2000 Sentencing Guidelines to fifteen months imprisonment, two years

supervised release, and $27,000 in restitution. At sentencing, Davis objected to his sentence,

claiming he was entitled to a downward adjustment for having a minor or minimal role in the offense

under USSG § 3B1.2. However, the district court overruled this objection. In addition, Davis

objected to the inclusion under his criminal history of a 1996 conviction in Atlanta traffic court for

“allowing intoxicated driver to drive” for which he was sentenced to six months incarceration and

a $1,200 fine. He argued (1) that, in fact, he pled guilty to only a $100 fine, (2) there was not

enough evidence in the record to prove this conviction, and (3) this offense should be considered

a “minor traffic infraction” under USSG § 4A1.2(c)(2). After consideration, the district court ruled

the conviction was properly included and Davis was assessed two criminal history points for it.

                                           DISCUSSION

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United States v. Davis

1. Sixth Amendment

       While the failure to raise his Sixth Amendment claim below was not a waiver,1 it is a closer

question whether Davis’s failure to assert his claim forfeited the claim (thereby requiring plain error

review) or whether the claim remains preserved (thereby requiring de novo review).2 Ultimately,

however, that determination is unimportant here since the district court plainly erred in sentencing

Davis. In reviewing for plain error, we must consider whether (1) there was an error, (2) which was

plain, (3) that affected the defendant’s substantial rights and, (4) that, in the court’s discretionary

view, seriously affects the fundamental fairness, integrity, or public reputation of judicial

proceedings. United States v. Trammel, 404 F.3d 397, 401 (6th Cir. 2005) (citation omitted).

       Given that Davis was sentenced under the now-erroneous assumption that the Guidelines are

mandatory, three of the four prongs of the plain error test are easily satisfied. This court has said

there is plain error “where the defendant was sentenced under the pre-Booker mandatory Sentencing

Guidelines.” Id. at 402(citation omitted). Further, the fourth prong is satisfied because “a sentence

imposed under the pre-Booker regime satisfies this requirement, even in the absence of a Sixth

Amendment violation.” Id. at 403 (citation omitted).

       As for the third prong, a presumption of prejudice is appropriate where a defendant was

sentenced under the pre-Booker mandatory Guidelines regime and the district court could have

       1
         There has been no “intentional relinquishment or abandonment of a known right.” United
States v. McDaniel, 398 F.3d 540, 546 (6th Cir. 2005) (citation omitted).
       2
         Preservation of a Sixth Amendment claim may exist even where that claim was not raised
in the court below. United States v. Strayhorn, 250 F.3d 462, 467 (6th Cir. 2001), overruled on
other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir. 2002); but see United States
v. Davis 397 F.3d 340, 350 (6th Cir. 2005).

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United States v. Davis

imposed a lower sentence in the post-Booker world. Id. at 402 In order to rebut this presumption,

the trial record must contain “clear and specific evidence that the district court would not have, in

any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime.”

United States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005) (citation omitted). In this case, not only

is this rebuttal evidence absent from the record, but the record contained indications expressly to the

contrary.3 Therefore, the third prong is also satisfied.

2. Reduction in Offense Level

       While a remand for resentencing is required under Booker, Davis’s remaining claims must

be addressed since the district court is required to consider the correct Guidelines-recommended

sentence on resentencing. United States v. Booker, 125 S.Ct. 738, 764 (2005). As to the first claim,

“[w]hether a defendant is entitled to a downward departure under 3B1.2 depends heavily on factual

determinations,” which an appellate court reviews only for “clear error.” United States v. Campbell,

279 F.3d 392, 396 (6th Cir. 2002). This court has noted that it “continue[s], in reviewing individual

Guidelines determinations, to apply the standards of review we applied prior to Booker.” United

States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005).

        The minimal participant provision is “intended to cover defendants who are plainly among

the least culpable of those involved in the conduct of a group” and is to be “used infrequently.”

USSG § 3B1.2, comment. (n.1-2). Defendant’s lack of knowledge, lack of understanding about the



       3
        This evidence includes an express statement by the court that it thought “ a sentence at the
low end of the Guidelines” was “appropriate,” and the fact that the actual sentence was at the bottom
of the Guidelines range. See Trammel, 404 F.3d at 402.

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No. 04-5848
United States v. Davis

enterprise, and lack of understanding of the activities of others in it are indicative factors of a

minimal participant. Id. at comment. (n.1). A minor participant is one who cannot be described as

minimal, but whose conduct is less culpable than most other participants. Id. at comment. (n.3).

       Here, the district court rested its decision on the defendant’s continued involvement in the

crime. Not only was Davis crucial to initiating the crime by bringing the parties together, but his

involvement also continued beyond this with his pressuring McMinn for payment. Furthermore,

although he did not participate in every act, Davis was to profit from it and his conduct does not

appear qualitatively different from other members of the fraud. In conclusion, the ultimate decision

appears entirely plausible in light of the record as a whole and cannot be said to be clearly

erroneous.

3. Criminal History Calculation

       As to the Atlanta traffic violation, Davis argues that (1) the evidence presented was

insufficient to warrant inclusion of the conviction and (2) even if sufficiently proven, the crime

charged was a minor traffic infraction and, therefore, should be excluded from the criminal history

calculation. We review “a district court’s legal interpretation of the Guidelines de novo” and its

factual findings under a clearly erroneous standard. United States v. Cole, --- F.3d ---, 2005 WL

1903833, *1 (6th Cir. April 29, 2005). “This standard of review is not altered by the decision of the

Supreme Court in” Booker. Id.

        Davis first argues that there was insufficient evidence to warrant a two-point criminal

history assessment for this conviction. He contends that there should have been no points issued for

this offense since “he only received a $100.00 fine and no incarceration.” However, given the

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United States v. Davis

concession alone, the offense clearly qualifies as a prior sentence and, as such, at least a one-point

assessment is appropriate.4 See USSG § 4A1.2(a)(2). In order for the conviction to warrant a two-

point assessment, there must have been a sentence of imprisonment of at least sixty days, Davis must

have served some amount of time for the conviction, and the sentence must not have been an

alternative sentence. USSG §§ 4A1.1(b); 4A1.2 comment. (n.2,4). The district court found that the

sentence “provide[d] for six months of incarceration.” However, the court made no finding as to

whether Davis served time or if this was an alternative sentence. The record itself contains scant

evidence about the nature of this conviction5 and throughout sentencing the defense strenuously

objected to the government’s characterization of the crime. Even so, Davis also failed to offer into

evidence any proof supporting his position. Due primarily to the lack of any contrary evidence in

the record and given the fact that the district court expressly found a two-point assessment

appropriate, the district court’s decision was not clearly erroneous. Nevertheless, upon remand, the

district court is not precluded from reconsidering this ruling, if Davis or the government wishes to

supplement the record on that point.

       As to Davis’s other argument, for exclusion of the conviction under USSG § 4A1.2(c)(2),

the district court correctly ruled that a conviction under Georgia Code § 40-1-3 for allowing an

intoxicated driver to drive does not qualify as a “minor traffic infraction” under §4A2.c(2). Since

       4
        The trial court mistakenly referred to “Code Section 40-1-30” during sentencing. Instead,
the conviction must have occurred under Georgia Code 40-1-3 which would authorize up to a one
year sentence of imprisonment. See GA. CODE ANN. §§ 40-6-1, 17-10-3 (1996).
       5
         The only evidence indicating a non-alternative sentence had been served was its listing in
the presentence report and the probation officer’s statement that the report “shows the defendant was
sentenced to six months confinement. It does not reflect any probationary sentence.”

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No. 04-5848
United States v. Davis

this is a purely legal question, we review it de novo. Cole, --- F.3d ---, 2005 WL 1903833, at *1.

An “‘infraction’ in the phrase ‘minor traffic infractions’... represents a ‘term of art’” and, as such,

is defined as “any offense for which the maximum authorized term of imprisonment is not more than

five days.” United States v. Rollins, 378 F.3d 535, 537 (6th Cir. 2004) (citation omitted). In this

case, the maximum authorized sentence is clearly beyond five days and, therefore, the trial court was

correct in ruling that the crime of conviction did not constitute a minor traffic infraction.

        REVERSED and REMANDED for resentencing.




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