               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                        File Name: 05a0328n.06
                         Filed: April 28, 2005

                                   No. 04-1344

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                )
                                         )
           Plaintiff-Appellant           )       ON APPEAL FROM THE
                                         )       UNITED STATES DISTRICT
     v.                                  )       COURT FOR THE EASTERN
                                         )       DISTRICT OF MICHIGAN
SHANTEL HENDERSON,                       )
                                         )
           Defendant-Appellee            )

BEFORE: DAUGHTREY and CLAY, Circuit Judges, and GRAHAM,1 District
Judge.

     GRAHAM, District Judge. Defendant-appellee Shantel Henderson

was indicted by a grand jury in the Eastern District of Michigan on

February 27, 2003.        Defendant was charged in count one of the

indictment with illegally possessing firearms after having been

convicted of a felony in violation of 18 U.S.C. § 922(g).              She was

charged   in   count    two   of   the   indictment   with    the   offense   of

possession of cocaine base with the intent to distribute it, and in

counts three and four with the offense of distribution of cocaine

base, all in violation of 21 U.S.C. § 841(a)(1).             On July 14, 2003,

defendant entered guilty pleas to counts one and three of the

indictment pursuant to a written plea agreement.

     In the presentence investigation report, the probation officer



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       The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
calculated the applicable sentencing range under the Sentencing

Guidelines (“U.S.S.G.”).     The probation officer first determined

the offense level applicable to the firearm offense by referring to

U.S.S.G. § 2K2.1.   The probation officer employed a base offense

level of 20 under U.S.S.G. § 2K2.1(a)(4)(A) for the commission of

the offense following a felony conviction for a crime of violence.

The probation officer then applied a four-level enhancement under

U.S.S.G. § 2K2.1(b)(5) because defendant possessed the firearm in

connection with another felony offense–the drug offense in this

case–yielding an adjusted offense level of 24.

     The probation officer then calculated the base offense level

for the drug offense.      The probation officer arrived at a base

offense level of 26 under U.S.S.G. § 2D1.1(a)(3) based on a total

quantity of 11.43 grams of cocaine base considered as relevant

conduct.   Under U.S.S.G. § 2D1.1(b)(1), two additional levels were

added for possession of a firearm during the offense, resulting in

an adjusted offense level of 28.

     The probation officer then grouped the two counts pursuant to

U.S.S.G. § 3D1.2(c). Since the adjusted offense level for the drug

offense was higher than the adjusted offense level for the firearm

offense, the combined adjusted offense level for the two offenses

was determined to be 28, pursuant to U.S.S.G. § 3D1.3(a).       The

probation officer then deducted three levels for acceptance of

responsibility pursuant to § 3E1.1, resulting in a total offense


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level of 25.    With a Criminal History Category II, defendant’s

guideline imprisonment range was 63 to 78 months.

     At a sentencing hearing held on December 11, 2003, the

district court determined that the proper offense level was 23.

The court concluded that the enhancement for possession of a

firearm during the drug offense would constitute impermissible

double counting since defendant was also charged with a firearm

count.   The court also declined to add the four-level enhancement

applicable to the firearm count on the ground that adding an

enhancement for use of the firearm during a drug offense would

constitute double counting since defendant had also pleaded guilty

to the drug offense. The court adjourned the sentencing hearing to

permit the government to research the legal issues presented by the

court’s rulings.   At the final sentencing hearing held on January

12, 2004, the court adhered to its previous rulings and concluded

that the appropriate total offense level was 23, Criminal History

Category II, resulting in a sentencing range of 51 to 63 months.

The government objected to the district court’s rulings. The court

sentenced the defendant to a term of imprisonment of 51 months.

The government then filed the instant appeal.

     The government argues that the application of the enhancements

mandated by the Guidelines in this case does not constitute

impermissible double counting.       The government relies on United

States v. Taylor, 248 F.3d 506 (6th Cir. 2001).      In Taylor, the


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defendant was convicted for both being a felon in possession of a

firearm and various drug offenses.   He argued that the application

of the two-level enhancement due to his possession of a weapon in

connection with a drug offense was double counting and violated the

principles of double jeopardy due to the fact that he was also

sentenced for being a felon in possession of the same weapon.   Id.

at 516.   Citing United States v. Gibbs, 190 F.3d 188, 215-16 (3d

Cir. 1999), this court concluded that the use of the enhancement

did not violate the defendant’s protection against double jeopardy

because the defendant’s possession of a weapon was the basis for

one offense and a mandatory ground for enhancement in a separate

offense with different requirements.   Id. at 517.   See also Witte

v. United States, 515 U.S. 389, 395 (1995)(use of relevant conduct

to increase the punishment of a charged offense does not punish the

offender for that relevant conduct). This court further noted that

since the drug and felon in possession offenses were grouped, so

that the felon in possession offense was effectively disregarded in

arriving at the offense level, the application of the enhancement

to the drug offense did not place the defendant in double jeopardy

or result in double counting.    Id.   The reasoning in Gibbs and

Taylor was subsequently adopted by the Eighth Circuit in United

States v. Pierce, 388 F.3d 1136, 1138-39 (8th Cir. 2004).

     Defendant argues that her case is distinguishable from Taylor.

She contends that because her possession of a firearm during the


                                 4
drug offenses could be viewed as evidence supporting an intent to

distribute, it was an element of the drug offense. She argues that

the two offenses involved the same act or transaction and the same

harm, and that, therefore, the drug offense also embodied the

conduct treated separately as the firearm offense.

     Defendant is incorrect in arguing that her possession of a

firearm may be viewed as an element of the drug offenses.            The

essential elements required to prove the offense of distribution of

cocaine    base   are   that   the   defendant:   (1)    knowingly   and

intentionally distributed cocaine base, (2) on or about the date

alleged in the indictment, (3) knowing that the substance was

cocaine base.     United States v. Gibbs, 182 F.3d 408, 433 (6th Cir.

1999).    Similarly, the elements of the offense of possession with

the intent to distribute a controlled substance are that the

defendant: (1) knowingly possessed a controlled substance, (2) with

the intent to distribute it, (3) on or about the date alleged in

the indictment.     United States v. Mackey, 265 F.3d 457, 460 (6th

Cir. 2001).     In contrast, the elements of the offense of felon in

possession of a firearm are that the defendant: (1) possessed a

firearm, (2) on or about the date alleged in the indictment, (3)

having previously been convicted of a felony.           United States v.

Harris, 293 F.3d 970, 975 (6th Cir. 2002).

     As we held in Taylor, the drug charges and the felon in

possession of a firearm charge in this case are separate offenses


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with different requirements.       Taylor, 248 F.3d at 517.         The

mandatory use of the possession of a weapon under § 2D1.1(b)(1) as

relevant conduct to enhance the sentencing range for the drug

offense and the mandatory enhancement of the separate firearm

offense under § 2K2.1(b)(5) with the relevant conduct that the

firearm was possessed in connection with the drug offense did not

result in impermissible double counting or a violation of double

jeopardy principles.      Id.   Further, as in Taylor, the drug and

firearm offenses in this case were grouped in arriving at the

appropriate sentencing range under the Guidelines, and thus the

firearm charge, with its enhancement, was effectively disregarded

in arriving at the offense level.      Id.

     We conclude that Taylor controls, and that the district court

erred in failing to apply the sentencing enhancements specified in

§ 2D1.1(b)(1) and § 2K2.1(b)(5).       Therefore, this case must be

remanded for resentencing.      It should be noted that while this

appeal was pending, the United States Supreme Court rendered a

decision in United States v. Booker, 543 U.S.          , 125 S.Ct. 738

(2005), holding that the Sentencing Guidelines are no longer

mandatory.   However, since, under 18 U.S.C. §3553(a)(4)(A), the

sentencing range dictated by the Sentencing Guidelines is still a

factor which must be considered by the district court in imposing

sentence, the correct calculation of the sentencing range under the

Guidelines   is   still     relevant   to    the   court’s   sentencing


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determination on remand.

     Therefore, the defendant’s sentence is VACATED, and this

matter is REMANDED to the district court for resentencing in

accordance with the foregoing opinion and United States v. Booker.




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