                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0569n.06
                                  Filed: July 7, 2005

                                          No. 04-6352

                         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
MELBA MALONE,                                         )    TENNESSEE
                                                      )
       Defendant-Appellant.                           )


Before: SILER and GIBBONS, Circuit Judges; LAWSON, District Judge*

       PER CURIAM. Defendant Melba Malone appeals her sentence for mail theft charges

committed when she worked as a postal employee. She was sentenced to five months of

imprisonment followed by five months of home detention and two years of supervised release.

Because she was sentenced under the then-mandatory Sentencing Guidelines, we REVERSE and

REMAND for resentencing.

                                               I.

       In October 2004, Malone pled guilty to the charges of possessing stolen mail, stealing mail

as a postal employee, conspiring to possess access devices sent in the mail, and knowingly

defrauding another by using access devices to obtain more than $1,000 in cash or merchandise. At



       *
       The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 04-6352
United States v. Malone

her change of plea hearing, she admitted the essential facts necessary to support the charges, but

refused to admit any other facts in the wake of Blakely v. Washington, 124 S. Ct. 2531 (2004). She

could not deny, however, making statements to the police about stealing credit cards and other

instruments for approximately two years, at a rate of approximately two per month.

       The district court adopted the Guideline calculation recommended in the presentence report,

which included enhancements for the amount of loss, trafficking access devices, and abuse of trust.

Malone did not object to the latter two enhancements because her guilty plea established the basis

of these enhancements. She did, however, make a Sixth Amendment objection to the amount-of-loss

enhancement because it was based solely on her admission to the police regarding the frequency of

her access device trafficking. The district court overruled the objection because the Sentencing

Guidelines were still mandatory at the time.

                                                 II.

       Sixth Amendment errors that have been preserved below are reviewed de novo, while error

which has not been preserved is reviewed for plain error. United States v. McDaniel, 398 F.3d 540,

546 (6th Cir. 2005). Malone preserved her Sixth Amendment challenge to her sentence by objecting

to the amount-of-loss enhancement at the time of sentencing, and de novo review is warranted.

However, because the district court also committed plain error, we will focus our discussion on the

four-part plain error test articulated in United States v. Oliver, 397 F.3d 369 (6th Cir. 2005). We

can reverse under this test if there is error that is plain which affects the defendant’s substantial

rights. Id. at 378. If these elements are met, we may choose to exercise our discretion and reverse




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No. 04-6352
United States v. Malone

if the error “seriously affects the fairness, integrity, or public reputation of [the] judicial

proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 466 (1997)).

       Error occurred because the district court sentenced Malone under the Guidelines as if they

were mandatory. United States v. Hudson, 405 F.3d 425, 444 (6th Cir. 2005); United States v.

Barnett, 398 F.3d 516, 527 (6th Cir. 2005). This error is now plain, McDaniel, 398 F.3d at 549, and

we assume that the error affected the defendant’s substantial rights because the trial record does not

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 range.” Barnett, 398 F.3d at 529;

see also Hudson, 405 F.3d at 444.

       We choose to exercise our discretion and reverse and remand this case for resentencing. “As

our Court has observed in the wake of Booker, the court of appeals ought not assume that a

defendant’s sentence under the new discretionary sentencing regime would be the same and

therefore that a remand is superfluous.” Hudson, 405 F.3d at 445 (citing Oliver, 397 F.3d at 381

n.3). Therefore, remand is appropriate. Because Malone meets all four prongs of the plain error

test, her case would also be remanded under the more lenient de novo standard of review.

       REVERSED and REMANDED.




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