                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 05a0502n.06
                                 Filed: June 14, 2005

                                               Case No. 03-6496

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                                     )
                                                               )
             Plaintiff - Appellee,                             )
                                                               )        ON APPEAL FROM THE
                    v.                                         )        UNITED STATES DISTRICT
                                                               )        COURT FOR THE EASTERN
 BRYAN D. MILLER, aka Bizzy,                                   )        DISTRICT OF TENNESSEE
 Brian Miller, Benny Johnson,                                  )
 Benny Jones,                                                  )
                                                               )
             Defendant - Appellant.                            )
                                                               )
 _______________________________________                       )

BEFORE: BATCHELDER and DAUGHTREY, Circuit Judges; O’KELLEY*, District Judge.

         ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Bryan Miller appeals

his sentence for conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. § 846 and

conspiracy to launder money in violation of 18 U.S.C. § 1956(h). Because the district court relied

on judge-found facts to enhance Miller’s sentence pursuant to the mandatory sentencing guidelines

in place at the time, we will VACATE Miller’s sentence and REMAND for resentencing.

                                                          I.

         On December 5, 2002, Miller pled guilty to Counts One and Two of a Superceding

Indictment, which charged him with conspiracy to distribute cocaine and marijuana and conspiracy

to launder money. In his plea agreement, Miller stipulated that he was a member of a group that

         *
         The Honorable William C. O’Kelley, United States District Judge for the Northern District of Georgia, sitting
by designation.
shipped drugs from Los Angeles, California to Chattanooga, Tennessee. Miller also admitted that

he conspired to distribute at least five kilograms of cocaine powder and 1,000 kilograms of

marijuana. The plea agreement describes the details of Miller’s money laundering scheme.

       The district court assigned Miller a base offense level of 34 and, pursuant to U.S.S.G. §

2D1.1(b)(1), enhanced his sentence by two levels because it was “reasonably foreseeable” that his

coconspirators would have possessed firearms. The court also imposed a four-level enhancement

pursuant to U.S.S.G. § 3B1.1(a) because Miller was the leader of a criminal activity that involved

five or more participants, yielding a total offense level of 40. With a Criminal History Category of

III, the guideline range for Miller’s offense was 360 months to life. The district court sentenced

Miller to 400 months’ imprisonment.

                                                II.

       In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the mandatory

federal sentencing guidelines violated the Sixth Amendment by requiring judges to enhance the

sentences of defendants based on facts not found by a jury or admitted by the defendant. To remedy

this problem, the Court excised from the Sentencing Act the provisions making the guidelines

mandatory. Booker then instructed reviewing courts to apply its Sixth Amendment holding and its

remedial interpretation of the Sentencing Act to all cases on direct review. Id. at 769. Booker

further mandated that reviewing courts apply ordinary prudential doctrines, such as plain error

review, to determine if re-sentencing is warranted. Id.

       Though enhancements based on facts admitted by the defendant do not violate Booker’s rule,

see United States v. Milan, 398 F.3d 445, 455 (6th Cir. 2005), we do not think that the admissions

that Miller made as part of his plea agreement are sufficient to support either of the enhancements


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imposed. Pursuant to U.S.S.G. § 2D1.1(b)(1), a sentencing court should increase a drug defendant’s

base level by two points “if a dangerous weapon (including a firearm) was possessed.” United

States v. Stewart, 306 F.3d 295, 326 (6th Cir. 2004). For the enhancement to apply, the Government

must establish “1) that the defendant actually or constructively ‘possessed’ the weapon, and 2) such

possession was during the commission of the offense.” United States v. Hill, 79 F.3d 1477, 1485

(6th Cir. 1996). “If the offense committed is part of a conspiracy, however, the government does

not have to prove that the defendant actually possessed the weapon, but instead may establish that

a member of the conspiracy possessed the firearm and the member’s possession was reasonably

foreseeable by other members of the conspiracy.” Stewart, 306 F.3d at 326 (quoting United States

v. Owusu, 199 F.3d 329, 347 (6th Cir. 2000)); see also United States v. Chalkias, 971 F.2d 1206,

1217 (6th Cir. 1992).

       A defendant who pleads guilty admits to all of the facts in the indictment. United States v.

Burgin, 388 F.3d 177, 182 (6th Cir. 2004). The plea of guilty to the indictment’s allegation that

Miller’s coconspirators carried guns throughout the life of the conspiracy is insufficient to support

an enhancement pursuant to § 2D1.1(b)(1) because the indictment neither speaks to foreseeability

nor alleges that Miller himself carried a firearm. Miller’s plea agreement is also silent on whether

he carried a firearm. Likewise, Miller’s § 3B1.1(a) enhancement is unsupported by his admissions.

Under § 3B1.1(a), a defendant’s base offense level is increased by four points “[i]f the defendant

was an organizer or leader of a criminal activity that involved five or more participants or was

otherwise extensive.” United States v. Ward, 68 F.3d 146, 151 (6th Cir. 1995). Miller, however,

did not explicitly admit to playing a leadership role as part of his plea agreement and the indictment

does not allege that he was the leader or organizer of the conspiracy. Though the record contains


                                                  3
ample evidence to support enhancing Miller’s sentence pursuant to §§ 2D1.1(b)(1) and 3B1.1(a) on

remand, we cannot say that he admitted to the facts justifying their application under the pre-Booker

version of the guidelines.

         Because, pursuant to the mandatory federal sentencing guidelines in place at the time,

Miller’s sentence was enhanced based on facts found by the sentencing judge, his sentence violates

the Sixth Amendment under Booker. Since Miller failed to make a Sixth Amendment objection at

sentencing, however, we conduct plain error review to determine if he must be re-sentenced. Under

that test, there must be (1) error, (2) that is plain, (3) and that affects substantial rights. United States

v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005). If these three conditions are met, an appellate court

may then exercise its discretion to notice the forfeited error if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

         Miller’s sentence in violation of the Sixth Amendment constitutes error that is plain. Id. at

378-79. Moreover, according to this circuit’s precedent in United States v. Oliver, a sentence

enhancement based on judge-found facts under a mandatory guidelines system necessarily affects

Miller’s substantial rights.1 Id. at 379-80. Finally, Oliver dictates that any sentencing error that

leads to a violation of the Sixth Amendment by imposing a more severe sentence than is supported

by the jury verdict automatically diminishes the integrity and reputation of the judicial system. Id.


         1
          Speaking only for myself, I note my disagreement with Oliver’s unwarranted departure from traditional plain
error review. Despite purporting to apply plain error review, Oliver fails even to discuss, much less enforce, the
defendant’s traditional burden of proving that the district court’s error prejudiced him. Oliver reasoned that since the
defendant received a sentence “beyond that which was supported by the jury verdict and [his] criminal history,” he was
necessarily prejudiced because he “arguably received a sentence that was longer than his sentence would have been
absent a Sixth Amendment violation.” Oliver, 397 F.3d at 379-80 (emphasis added). “Arguably” is not enough,
however. Under the ordinary plain error review that Booker requires, 125 S. Ct. at 769, a defendant bears the burden
of proving that he was prejudiced by the error, United States v. Olano, 507 U.S. 725, 734 (1993): i.e., that absent that
error, he would more likely than not have received a lower sentence. By simply ignoring this requirement, Oliver
effectively holds that every Sixth Amendment violation in a Booker-type case automatically prejudices a defendant, a
holding that does not comport with Supreme Court precedent.

                                                           4
at 380. Accordingly, we VACATE Miller’s sentence and REMAND this case to the district court

for re-sentencing.




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       WILLIAM C. O’KELLEY, District Judge, specially concurring.                I concur with the

foregoing opinion of the court, including the author’s comments in footnote 1.




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