                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0198n.06
                            Filed: March 24, 2006

                                           No. 04-6119

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff - Appellee,                          )   ON APPEAL FROM THE
                                                      )   UNITED STATES DISTRICT
v.                                                    )   COURT FOR THE WESTERN
                                                      )   DISTRICT OF KENTUCKY
CHARLES A. PAYNE,                                     )
                                                      )
       Defendant - Appellant.                         )


Before: GIBBONS, GRIFFIN, and BRIGHT*, Circuit Judges.

       PER CURIAM. A jury convicted Charles Payne of manufacturing and possessing with

intent to manufacture and distribute marijuana, possession of methamphetamine, and possession of

firearms in furtherance of a drug trafficking crime. Payne appeals his conviction and sentence,

arguing that (1) the district court erred in permitting the prosecution to recall a deputy sheriff to

testify that Payne did not have a hunting license after Payne had advanced the defense theory that

he possessed the firearms1 for hunting and target shooting; (2) the district court erred in light of

United States v. Booker, 543 U.S. 220 (2005), and United States v. Harris, 397 F.3d 404 (6th Cir.

2005), because Payne’s sentence was increased based on the judge’s determination of firearm type;

and, (3) the district court committed plain error by sentencing Payne under a now impermissible


       *
         The Honorable Myron H. Bright, Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
       1
         The jury determined Payne possessed in furtherance of his drug activity two .38 caliber
revolvers, a .22 caliber rifle, and a .762 caliber assault rifle.
No. 04-6119
United States v. Payne
Page 2

mandatory sentencing guidelines system. With respect to the first point on appeal, we affirm

because Payne has not shown plain error. The government concedes the second and third points on

appeal.

                                         BACKGROUND

          On December 10, 2002, the police went to Payne’s residence on suspicion of drug activity.

After obtaining Payne’s consent, the police searched his house and found methamphetamine,

products used in the manufacture of methamphetamine, 5.1 pounds of marijuana, and six guns.2 The

guns were found in the kitchen, about five feet from the marijuana, and some of the guns were

propped against the kitchen wall. Evidence presented at trial showed four of the six guns were

loaded.

          At trial, Payne’s main defense to the weapons charge was that he owned the guns because

he was a hunter and gun collector. Payne’s girlfriend testified that Payne collected guns and

occasionally used them to target shoot or hunt game. Payne’s residence was situated on thirty-eight

acres of land. The government later recalled a deputy sheriff, Tracey Batey, to testify that Payne

did not have a hunting license. Batey’s recall testimony in its entirety is as follows:

BY [PROSECUTOR]:
          Q.     Good morning. At my request, have you checked to see whether the
          defendant, Charles Anthony Payne, had a hunting license in December of 2002?
          A.     Yes, sir, I did. I checked with the Kentucky Fish and Wildlife.
          Q.     Did he have a license?




          2
           The police also found four additional “fake” guns in Payne’s house, but these did not
figure into the trial.
No. 04-6119
United States v. Payne
Page 3

        A.      No, sir, he did not.3

J.A. at 91.

        Payne did not object to this testimony and did not cross-examine Batey. Payne did not testify

on his own behalf. Although neither side mentioned it at trial, Ky. Rev. Stat. § 150.170(3) allows

landowners and tenants to shoot game on their own property without first procuring a license.

        The jury convicted Payne of manufacture and possession with intent to distribute marijuana,

as well as simple possession of methamphetamine. The jury also found that Payne possessed four

of the six charged guns, specifically those guns that were loaded, in furtherance of his drug

trafficking crime. The district court sentenced Payne to two concurrent six-month terms for the first

two counts and a consecutive 126-month term for the third count. Payne now appeals his conviction

and sentence.

                                           DISCUSSION

a. The recall testimony of Tracey Batey

        Payne maintains that the district court erred in allowing the recall testimony of deputy sheriff

Tracey Batey. He also argues that the government’s recalling of Batey rose to the level of

prosecutorial misconduct. As we have noted, Batey testified that he had checked with the Kentucky

Fish and Wildlife Department and had been told that Payne did not have a hunting license. Because

Payne did not object to this testimony at trial, the appellate court reviews it for plain error. Under

the plain error standard, a reviewing court will correct an error only if the error is (1) plain, (2)



        3
          The questioned testimony in this case was clearly hearsay and perhaps not relevant. We
shall assume that the trial judge would have excluded the testimony on proper objection.
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Page 4

affects substantial rights, and (3) seriously affects the fairness, integrity, or public reputation of

judicial proceedings. United States v. Cotton, 535 U.S. 625, 632 (2002).

       The admission of Batey’s testimony did not constitute plain error. This testimony did not

affect Payne’s substantial rights. Whether Payne used the guns for hunting appeared to be of lesser

importance to the jury than the fact that the guns were loaded and in close proximity to the drugs.

Moreover, some of the weapons, particularly an assault rifle and handguns, would not be used to

hunt. Finally, the claim of using the guns or any of them for target shooting is eroded by evidence

that both handguns were loaded. A target shooter is unlikely to keep his target guns loaded and

ready for use while the guns are in the home. If Payne’s lack of a hunting license were crucial to

the jury’s determination, the jury probably would have determined that all six guns were used in

association with the drug trafficking. We emphasize that only the loaded guns, close to the drugs,

were the offending weapons. In addition, the government points out that the circumstances could

indicate that Payne possessed the guns both for hunting and in furtherance of his drug trafficking

crimes, and thus the knowledge that the defendant could hunt on his own land without a hunting

license would not necessarily establish the defense.

       In connection with the above argument, Payne asserts that the government’s action in

recalling Batey constituted prosecutorial misconduct. This claim fails as well. Batey was not

recalled to testify until just before the trial concluded, and the defense chose not to object to this

testimony. In addition, the evidence that Batey gave did not appear to be crucial to the jury’s

determination that four of Payne’s six guns were used in furtherance of drug trafficking. In order

for a prosecutorial misconduct claim to succeed, the prosecutor’s statements must have been
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Page 5

improper, and they must have been flagrant and warrant reversal. United States v. Crayton, 357 F.3d

560, 572 (6th Cir. 2004). “To warrant a new trial, however, prosecutorial misconduct must be so

pronounced and persistent that it permeates the entire atmosphere of the trial.” United States v.

Krebs, 788 F.2d 1166, 1177 (6th Cir. 1986). Batey’s recall testimony did not rise to the level of

prosecutorial misconduct required for a new trial. Id.

b. Sentencing under 18 U.S.C. § 924(c)

       Payne next maintains that his sentence under 18 U.S.C. § 924(c) violates United States v.

Booker, 543 U.S. 220 (2005), and United States v. Harris, 397 F.3d 404 (6th Cir. 2005). The district

court sentenced Payne to the section 924(c) ten-year mandatory minimum triggered by the use of

semiautomatic assault weapons, as opposed to the five-year mandatory minimum for non-

semiautomatic weapons. Weapon type, however, was neither charged in the indictment nor

presented to the jury. Under United States v. Harris, firearm type for section 924(c) purposes is an

element of the offense rather than a sentencing factor and therefore must be charged in the

indictment and proved beyond a reasonable doubt. 397 F.3d at 412. The government concedes and

we agree that, under Harris, this court should vacate the district court’s application of the 18 U.S.C.

§ 924(c)(1)(B)(i) penalty and remand for resentencing.

c. Sentencing under the mandatory sentencing guidelines system

       Finally, Payne argues that this court should remand for resentencing on all three counts

because the district court sentenced him under a now impermissible mandatory sentencing

guidelines system. The government concedes this point as well. Under United States v. Barnett,

it is plain error for a defendant “to be sentenced under a mandatory Guidelines regime that has now
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Page 6

become advisory.” 398 F.3d 516, 526 (6th Cir. 2005). Such cases should be remanded for

resentencing unless the 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.” Id. at 529. The district court sentenced Payne at the low end of the guidelines range,

making this a “particularly strong” case for remand. United States v. Sanders, 404 F.3d 980, 988

(6th Cir. 2005).

       We affirm the convictions but vacate the sentences and remand for resentencing.
