                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0595n.06
                                Filed: July 13, 2005

                                                   No. 04-5935

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,

v.                                                                      On Appeal from the
                                                                        United States District
SHAUN LYNN BONDURANT,                                                   Court for the Western
                                                                        District of Tennessee
            Defendant-Appellant.
__________________________________/


BEFORE: BOGGS, Chief Judge, and GIBBONS, Circuit Judge; QUIST, District Judge.*

         PER CURIAM. Defendant, Shaun Lynn Bondurant, pled guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g). The Presentence Investigation Report

recommended a total offense level of 27, with a sentencing range of 130 to 162 months. The offense

level included a four-level enhancement because Bondurant possessed 8 to 24 firearms, see U.S.S.G.

§ 2K2.1(b)(1)(B), plus a two-level enhancement because stolen firearms were possessed, see

U.S.S.G. § 2K2.1(b)(4), plus a four-level enhancement because the firearms were possessed in

connection with another felony offense, namely, conspiracy to manufacture methamphetamine, see

U.S.S.G. § 2K2.1(b)(5). Bondurant’s offense level was reduced by three points for acceptance of

responsibility. See U.S.S.G. § 3E1.1. Bondurant filed no objection to any factual statement in the



         *
          The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by
designation.
No. 04-5935                                       2
United States v. Bondurant


Presentence Investigation Report. He objected solely to the fact that none of the enhancements were

submitted to the jury to be determined beyond a reasonable doubt.

       The statutory maximum for the single charge to which Bondurant pled guilty was 120

months. Therefore, Bondurant’s sentence could not be “stacked” to run consecutively to meet the

bottom of the Guideline range. The district court held that Blakely v. Washington, ___ U.S. ___, 124

S.Ct. 2531 (2004), was not applicable to the United States Sentencing Guidelines and sentenced

Bondurant to 103 months.

       Bondurant filed a timely appeal. The only issue presented for review is whether Bondurant’s

Sixth Amendment rights were violated in light of Blakely.

       Bondurant’s rights under the Sixth Amendment were not violated. Blakely and the

subsequent case of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005), make clear that,

if the United States Sentencing Guidelines are mandatory rules that must be applied by district

courts, “any fact (other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty or a jury must be admitted by

a defendant or proved to a jury beyond a reasonable doubt” or else the Sixth Amendment is violated.

Booker, ___ U.S. ___, 125 S.Ct. at 756.

       In this case, no Sixth Amendment violation occurred because Bondurant admitted the facts

that gave rise to the enhancements. Under this court’s precedent, the district court “is allowed to

accept as true all factual allegations in a presentence report to which the defendant does not object.”

United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001); see also, United States v. Williams, __

F.3d __, 2005 WL 1384355, at *2 (6th Cir. June 9, 2005); United States v. Stafford, 258 F.3d 465,
No. 04-5935                                                  3
United States v. Bondurant


475-76 (6th Cir. 2001). Further, the failure of the Bondurant to object to the factual allegations in

a presentence report waives any future objections. United States v. Ward, 190 F.3d 483, 492 (6th

Cir. 1999).1 Thus, the district court could properly apply the enhancements because the facts

supporting these enhancements were set forth in the presentence report2 and Bondurant did not

contest the validity of these factual allegations.

         However, it is plain error in this circuit to sentence a person under the presumption that the

Guidelines were mandatory. United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). The

district court can exercise its discretion to sentence Bondurant above or below the now advisory

Guidelines. The record in this case does not indicate how the district court would have sentenced

Bondurant had the court known that the Guidelines were advisory.

         Therefore, we affirm the district court’s application of the Guidelines, but we vacate

Bondurant’s sentence and remand the case for resentencing under Booker.




         1
           Bondurant argues that he “objected to the factual allegations of offense conduct promulgated by the probation
office,” (Appellant’s Br. at 7), but a review of his objections indicates that he did not. (J.A. 9.) Rather, his objections
rested upon a Blakely argument and not that the facts contained in the presentence report were inaccurate. While the
distinction we draw between an objection to the facts as set forth in the presentence report and the process by which the
facts were found is a fine one, it is justified here by the defendant’s failure to reference the presentence report’s factual
determinations in his objections.
         2
          With respect to the number of guns Bondurant possessed, see J.A. 27-29. With respect to the fact that the guns
were stolen, see J.A. 27-29, 31. With respect to the fact that Bondurant possessed a gun in connection with a felony
(conspiracy to manufacture methamphetamine), see J.A. 30-31.
