                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0277n.06
                            Filed: April 13, 2005

                                             No. 03-5935

                           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 Eastern
THOMAS LEO PORTER,                                         )   District of Kentucky
                                                           )
       Defendant-Appellant.                                )




Before:        BOGGS, Chief Judge; and MARTIN and COOK, Circuit Judges.

               PER CURIAM. Defendant Thomas Leo Porter appeals from the district court’s

resentencing following his successful appeal from his initial sentence for conspiracy to possess with

intent to distribute cocaine and aiding and abetting another in the possession with intent to distribute

cocaine. In light of recent decisions by this court, we vacate the sentence of the district court and

remand for resentencing consistent with the Supreme Court’s decision in United States v. Booker,

__ U.S. __, 125 S. Ct. 738 (2005).



                                                   I

       Porter has already once successfully appealed to this court following his conviction on

counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§841(a)(1) and 846,

and aiding and abetting another in the possession with intent to distribute cocaine, in violation of
No. 03-5935
United States v. Porter

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The facts underlying defendant’s conviction have already

been ably described by this court. See United States v. Porter, No. 98-5846, 29 Fed. Appx. 232,

234-35 (6th Cir. Jan. 28, 2002) (“Porter I”). As they are largely irrelevant to our resolution of his

appeal, we describe only the procedural history related to defendant’s current challenge of his

sentence. During sentencing, the district court, independent of the jury, found that Porter possessed

more than five kilograms of cocaine, had been an organizer or leader of a criminal activity involving

five or more people, and had obstructed justice in trying to convince another witness to change her

testimony. Under the Guidelines, which were mandatory when Porter was sentenced, these findings

required the district court to sentence Porter within a range of 235 months to 293 months. The

district court sentenced Porter to the minimum sentence possible at the time, 235 months, and also

ordered five years of supervised release.

       Porter appealed to this court, asserting a variety of sentencing and evidentiary errors. See id.

at 235-38. This court for the most part affirmed his sentence, but remanded to the district court so

that it could reconsider its ordered term of supervised release based on Apprendi v. New Jersey, 530

U.S. 466 (2000). See id. at 235-36. The district court had violated Apprendi by basing the duration

of Porter’s period of supervised release on a quantity of cocaine not determined by a jury. See id.

at 235. Because that amount was not determined by a jury, Porter could only be sentenced under

§ 841(b)(1)(C), which provides for a minimum of three years of supervised release.1 The district

court had erroneously sentenced Porter to the minimum period of supervised release required under


       1
        This court noted in Porter I that the district court’s original imposition of five years of
supervised release was permissible under § 841(b)(1)(C). Id. at 235 n.1.

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§ 841(b)(1)(A), which provides for a minimum of five years of supervised release. Though we

remanded on that issue, this court also upheld the district court’s sentencing enhancements as not

clearly erroneous. Id. at 235-36. After a hearing, the district court resentenced Porter according to

§ 841(b)(1)(C), as this court had ordered in Porter I. See id. at 235. It reduced his sentence to only

three years of supervised release, the minimum required by § 841(b)(1)(C). The district court

concluded that its mandate under the panel’s opinion was limited to addressing only the

Apprendi issue. Defendant has timely appealed.



                                                 II

       Porter argues that the district court erred in failing to reconsider his sentencing enhancement

for his role as an organizer or leader of a criminal activity. See U.S. Sentencing Guidelines Manual

§ 3B1.1(a) (1997). Porter’s challenge implicates the mandate rule, under which “a district court is

bound to the scope of the remand issued by the court of appeals.” United States v. Campbell, 168

F.3d 263, 265 (6th Cir. 1999). Porter’s sentencing enhancements, including his enhancement as an

organizer or leader, were affirmed by this court in Porter I. As we have noted previously, however,

the mandate rule is not without exceptions. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.

1994). A district court possesses discretion to reconsider issues already decided in limited

circumstances, such as when “there is ‘substantially different evidence raised on subsequent trial;

a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision

which would work a manifest injustice.’” Id. at 1421 (quoting Petition of United States Steel Corp.,

479 F.2d 489, 494 (6th Cir. 1973)). Porter claims to fall into the exception, recognized in Moored,

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United States v. Porter

of a “subsequent contrary view of the law by the controlling authority.” Ibid. Specifically, he

maintains that our decision in United States v. Anthony, 280 F.3d 694 (6th Cir. 2002), altered the law

for organizer or leader sentencing enhancements under § 3B1.1(a). As such, he maintains, the

district court was free to reconsider its organizer or leader sentencing enhancement.

       We do not believe that Anthony altered the law of § 3B1.1(a), at least as it was applied to

Porter. Sub-section 3B1.1(a) increases a defendant’s sentence “[i]f the defendant was an organizer

or leader of a criminal activity that involved five or more participants or was otherwise extensive.”

Ibid. (emphasis added). It therefore clearly contemplates that the guideline applies in two situations:

(1) when the defendant is the organizer or leader of a criminal activity involving five or more

participants, or (2) when the defendant is the organizer or leader of a criminal activity that was

“otherwise extensive.” Ibid.

       Anthony only articulated the legal standard for the second, “otherwise extensive” half of §

3B1.1(a). See 280 F.3d at 699-701 (analyzing the issue according to whether the combined effort

of the participants equals that of five criminally responsible participants). Our decision in Anthony

did not in any way alter the legal standard for the first set of situations, where the criminal activity

involved five or more participants. It is this circumstance, however, that served as the sole basis for

Porter’s sentencing enhancement. The district court exclusively considered whether there had been

five or more individuals involved with Porter’s drug distribution. When this court reviewed Porter’s

sentence, we also limited our inquiry to the question of whether there had been five or more

participants. We affirmed the district court’s conclusion that “the defendant played a leadership role




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United States v. Porter

in the charged criminal activity, and that the activity involved five or more participants.” Porter I,

29 Fed. Appx. at 236 (emphasis added).

        On appeal, defendant emphasizes the standard offered in Anthony for determining who

counts as a participant in the criminal activity. See Anthony, 280 F.3d at 698 (“participants [are]

persons who were (i) aware of the criminal objective, and (ii) knowingly offered their assistance.”).

But this court in Anthony evinced no desire to alter the standard for who was a participant. See ibid.

In fact, we made clear that this standard was a straightforward application of prior case law. See

ibid. (noting that though the Guidelines offer no definition of who is a participant, courts have

“uniformly” treated the issue the same way). We therefore conclude that there has been no

“subsequent contrary view of the law” upon which the district court enhanced Porter’s sentence.

Moored, 38 F.3d at 1421. As such, we have no opportunity to question whether the district court

ought to have reconsidered his sentence on that basis.



                                                   III

        Nevertheless, given the Supreme Court’s recent decision in United States v. Booker, __ U.S.

__, 125 S. Ct. 738 (2005), as applied by this court in United States v. Barnett, 398 F.3d 516 (6th Cir.

2005), we must vacate Porter’s sentence and remand the case to the district court for resentencing.

Because Porter did not raise any Sixth Amendment challenge to his sentence before the district

court, we only review his sentence for plain error. See United States v. Oliver, 397 F.3d 369, 377

(6th Cir. 2005). Under plain-error review, we follow the test articulated by the Supreme Court. See,

e.g., id. at 378. For us to vacate Porter’s sentence, “there must be (1) error, (2) that is plain, and (3)

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United States v. Porter

that affects substantial rights. If all three conditions are met, an appellate court may then exercise

its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Ibid. (quoting Johnson v. United States, 520

U.S. 461, 467 (1997)) (quotations and citations omitted).

        In Barnett, this court engaged in a thorough analysis of whether a defendant’s sentence must

be remanded because of plain error. See 398 F.3d at 525-30. Applying Barnett’s reasoning, we

conclude that we must vacate Porter’s sentence and remand to the district court for resentencing in

light of Booker. The district court, though acting correctly at the time, erred by treating the

Sentencing Guidelines as mandatory. Id. at 525. Booker “effectuated a ‘clear’ and ‘obvious’ change

in law by making the Sentencing Guidelines advisory.” Id. at 526 (quoting United States v. Olano,

507 U.S. 725, 734 (1993)). The error of treating the Guidelines as mandatory is therefore plain,

regardless of whether the law indicated as much at the time. Ibid. (quoting Johnson, 520 U.S. at

468).

        Barnett further instructs us to presume prejudice in this case. In that case, this court

emphasized that “the most prudent course . . . is to presume prejudice given the distinct possibility

that the district court would have imposed a lower sentence under the new post-Booker framework

and the onerous burden he would face in attempting to establish that the sentencing court would

have imposed such a sentence.” Id. at 529. During sentencing, the district court cast some doubt

on whether it would have imposed a lower sentence when it stated that “this sentence is well

deserved because this man is a career drug dealer and he’s ruined countless lives, directly or

indirectly, . . . and I think he deserves every month he’s going to serve.” However, when reviewed

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in light of the district court’s sentence at the bottom of the applicable guideline range, we believe

that discussion falls short of Barnett’s demand that “the trial record contains 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.” Ibid. (emphasis added) (citing United States v.

Crosby, 397 F.3d 103, 117 (2d Cir. 2005)).

       As to the fourth step, whether the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings,” Johnson, 520 U.S. at 467 (internal quotations and citations

omitted), our recent ruling in Barnett made clear that we will exercise our discretion to vacate

sentences premised on the mandatory Guidelines regime. See Barnett, 398 F.3d at 529-30 (stating

it is fundamentally unfair to apply a sentence determined under the previous system). We therefore

conclude that though the legal doctrine for determining whether Porter’s criminal activity merited

application of § 3B1.1(a) has not changed, Booker drastically changed the law under which Porter

was sentenced by rendering § 3B1.1(a)’s sentence enhancement only advisory on the district court.

Under our recent precedent in Barnett, the district court’s original sentence, which treated the

Sentencing Guidelines as mandatory, was plain error. We therefore VACATE Porter’s sentence and

REMAND for resentencing consistent with this opinion and the Supreme Court’s decision in

Booker.




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