                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0069p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 06-6233
         v.
                                                    ,
                                                     >
 THOMAS M. THOMPSON,                                -
                           Defendant-Appellant. -
                                                   N
                     Appeal from the United States District Court
                  for the Middle District of Tennessee at Nashville.
                  No. 05-00140—Robert L. Echols, District Judge.
                                   Submitted: October 26, 2007
                              Decided and Filed: February 11, 2008
                Before: MERRITT, ROGERS, and McKEAGUE, Circuit Judges.
                                       _________________
                                            COUNSEL
ON BRIEF: Thomas J. Drake, Jr., CRAIG & DRAKE, Nashville, Tennessee, for Appellant. Philip
H. Wehby, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
    McKEAGUE, J., delivered the opinion of the court, in which ROGERS, J., joined.
MERRITT, J. (pp. 12-17 ), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
       McKEAGUE, Circuit Judge. A grand jury indicted Thomas M. Thompson and six co-
defendants of various federal offenses related to a drug transaction that turned into an armed
robbery. Thompson pleaded guilty to three criminal counts. He received 360 months of
imprisonment for conspiracy to distribute five or more kilograms of cocaine and for being a felon
in possession of a firearm. He also received a mandatory consecutive sentence of ten years’
imprisonment for the discharge of a firearm in connection with a drug transaction.
       On appeal, Thompson raises several claims of error. He contends that the district court erred
when it enhanced his sentencing range under the United States Sentencing Guidelines (the
“Guidelines” or “U.S.S.G.”) for assault on an official victim and for holding a leadership role in the
crime. He also argues that the district court engaged in impermissible double-counting when it used
the same criminal activity to both enhance his Guidelines range and sentence him to the ten-year
mandatory sentence. Finally, he argues that he should have received only a five-year sentence for

                                                  1
No. 06-6233               United States v. Thompson                                            Page 2


carrying and possessing a firearm during a drug transaction, rather than the ten-year sentence for
discharging a firearm.
        For the reasons set forth below, we affirm in part, reverse in part, and remand to the district
court for the limited purpose of resentencing Thompson under 18 U.S.C. § 924(c)(1)(A).
                                                         I
       On April 6, 2005, the Metro Nashville Police Department arranged with a confidential
informant (the “CI”) to purchase cocaine. The CI proceeded to purchase small amounts of cocaine
from several of Thompson’s co-defendants. Several days later, the CI told police that he learned that
Thompson wanted to purchase a large volume of cocaine. The CI met with an undercover officer
who was to pose as a dealer from Chicago in order to arrange a drug transaction with Thompson.
        After several rounds of negotiation, the CI and the undercover officer met Thompson in a
hotel room to finalize the sale. Police had the room under video surveillance. Thompson was
shown a bag containing twenty kilograms of cocaine wrapped in smaller packages. After inspecting
the cocaine, Thompson left the room, ostensibly to get more money to complete the sale. He
returned with the money and was accompanied by co-defendant Kenneth Jones.
        Thompson and Jones turned the drug sale into an armed robbery. Both Jones and Thompson
drew semiautomatic pistols on the officer and the CI. They ordered the two men to drop to the floor
and not to move. Jones grabbed the bag of cocaine and money and the two fled from the hotel room.
        The officers observing the drug transaction from the next room pursued Jones and Thompson
down the hotel stairs, yelling, “Metro Police!” They wore jackets printed with “Police” on the
sleeves and body. When one officer reached the bottom floor he noticed several kilograms of
cocaine and money lying on the floor. As the officer turned the corner, Jones fired a shot in his
direction. When the officer peered around the corner again, Jones fired another shot. An officer in
the lobby observed Jones and Thompson running towards him. Jones fired a third shot at the
officers, missing one by just a few inches. Jones and Thompson tried to hide in a vending machine
area, but the police ordered them to come out and surrender, which they eventually did. The officers
recovered a Ruger semi-automatic pistol and a Glock semi-automatic pistol from the top of a
vending machine.
        A grand jury indicted Thompson, Jones, and five other co-defendants on drug and weapons
charges. Thompson was named in three of the five counts: Count One charged Thompson and five
others with conspiracy to distribute and possess with intent to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. § 846; Count Two charged Thompson with possession of a firearm
as a convicted felon in violation of 18 U.S.C. § 922(g)(1); and Count Four charged Thompson with
using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. Thompson eventually pleaded guilty to all three counts.
         The probation office prepared a presentence report (“PSR”).1 Beginning with a base-offense
level of thirty four under the Guidelines, the office recommended a six-level enhancement under
U.S.S.G. § 3A1.2(c)(1) for assaulting a law-enforcement officer during the course of an offense or
flight therefrom, a four-level enhancement under U.S.S.G. § 3B1.1(a) for a leadership role in the
conspiracy, and a two-level reduction under U.S.S.G § 3E1.1(a) for acceptance of responsibility.
With an adjusted base-offense level of 42 and a criminal-history category of V, the office
recommended a sentencing range under the Guidelines of 360 months’ to life imprisonment for


       1
           The probation office used the 2005 version of the Guidelines manual.
No. 06-6233           United States v. Thompson                                                  Page 3


Counts 1 and 2. On Count 4, the office recommended that Thompson receive a mandatory minimum
sentence of ten years’ imprisonment. Thompson objected to the PSR.
        The district court held a sentencing hearing. After receiving testimony from several of the
officers at the scene and after hearing the parties’ arguments, the district court sentenced Thompson
to 360 months of imprisonment each on Counts One and Two, to be served concurrently, and 120
months on Count Four, to be served consecutively.
        Thompson timely appealed his sentence.
                                                   II
A.      Sentencing
        A district court and an appellate court have different roles in federal sentencing. The district
court must consider the relevant sentencing factors set forth at 18 U.S.C. § 3553. Pursuant to the
so-called parsimony provision of 18 U.S.C. § 3553(a), a district court must “impose a sentence
sufficient, but not greater than necessary, to comply with the purposes” of § 3553(a)(2). Section
3553(a)(2) provides that the district court must consider “the need for the sentence imposed”:
        (A) to reflect the seriousness of the offense, to promote respect for the law, and to
        provide just punishment for the offense;
        (B) to afford adequate deterrence to criminal conduct;
        (C) to protect the public from further crimes of the defendant; and
        (D) to provide the defendant with needed educational or vocational training, medical
        care, or other correctional treatment in the most effective manner[.]
While the district court need not explicitly reference each of the sentencing factors of § 3553(a),
“there must be sufficient evidence in the record to affirmatively demonstrate the court’s
consideration of [these factors].” United States v. Jones, 445 F.3d 865, 869 (6th Cir.) (internal
quotation marks omitted), cert. denied, 127 S. Ct. 251 (2006).
       The appellate court, in contrast, reviews the defendant’s sentence for “reasonableness” under
an abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007).
B.      The Advisory Guidelines
        1.      In General
         One of the sentencing factors that the district court must consider is the applicable Guidelines
range. United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006), cert. denied, 127 S. Ct. 3065 (2007).
Specifically, 18 U.S.C. § 3553(a)(4) requires that the district court consider “the kinds of sentence
and the sentencing range established for--(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines--(i) issued by the Sentencing
Commission.” The Supreme Court explained in Gall that the Guidelines are the “starting point and
the initial benchmark” for federal sentencing. 128 S. Ct. at 596.
        When considering the Guidelines, the district court must calculate the correct sentencing
range. Id.; Gale, 468 F.3d at 934. In practice, this means that the court must begin at the proper
base-offense level, apply any applicable enhancements or reductions to arrive at the adjusted-offense
level, and use the resulting offense level with the appropriate criminal-history category to arrive at
No. 06-6233           United States v. Thompson                                                  Page 4


a sentencing range. This is what the district court did in the recent Supreme Court case of
Kimbrough v. United States, 128 S. Ct. 558 (2007). The district court began with a base-offense
level of 32 and a criminal history of II for Kimbrough. Id. at 565. The district court then found that
Kimbrough had testified falsely at his codefendant’s trial and added 2 levels, resulting in an adjusted
offense level of 34. Id. The Supreme Court favorably noted that the district court “began by
properly calculating and considering the advisory Guidelines range.” Id. at 575. Using the
Guidelines range (as adjusted with any judge-found facts) as the applicable Guidelines range for
purposes of § 3553(a)(4) has been the consistent practice of this court. See, e.g., United States v.
Robinson, 503 F.3d 522, 529 (6th Cir. 2007) (applying a presumption of reasonableness to a within-
Guidelines sentence where the Guidelines calculation was enhanced based on judge-found facts and
the resulting sentence would have been outside a non-enhanced Guidelines range); United States v.
Cook, 453 F.3d 775, 777 (6th Cir. 2006) (explaining that “Booker . . . has no bearing on advisory
guideline calculations”); United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005) (holding that
the district court’s fact-finding with respect to an obstruction of justice enhancement did not violate
the Sixth Amendment and stating that “Booker did not eliminate judicial fact-finding”), cert. denied,
127 S. Ct. 129 (2006); cf. Booker, 543 U.S. at 257-58 (expressly rejecting the dissent’s approach that
would have left a sentencing judge free “to consider facts or circumstances not found by a jury or
admitted in a plea agreement for the purpose of adjusting a base-offense level down, but not up,
within the applicable guidelines range”). When engaging in this fact-finding, district courts employ
the “same preponderance-of-the-evidence standard that governed prior to Booker.” United States
v. Ferguson, 456 F.3d 660, 665 (6th Cir. 2006).
        Once the district court has calculated the appropriate Guidelines range, it then considers that
range in light of the other relevant § 3553(a) factors in fashioning the sentence. United States v.
McBride, 434 F.3d 470, 476 (6th Cir. 2006). We accord a presumption of reasonableness to a
sentence that lies within the advisory Guidelines range. Gale, 468 F.3d at 937; see Rita v. United
States, 127 S. Ct. 2456, 2462 (2007) (permitting circuit courts to apply a presumption of
reasonableness to a within-Guidelines sentence).
       2.      Guidelines Enhancement for Assault on an Official Victim
       Thompson first contends that the district court erred by enhancing his offense level under
U.S.S.G. § 3A1.2 for assaulting an officer. He argues that he did not know that the purported “drug
dealer” in the hotel room was actually an undercover officer. He also argues that the district court
found that only Jones fired on the officers who were in pursuit of the two as they fled the hotel room.
       We find no error by the district court. Section 3A1.2 provides in relevant part:
       (c) If, in a manner creating a substantial risk of serious bodily injury, the defendant
       or a person for whose conduct the defendant is otherwise accountable--
               (1) knowing or having reasonable cause to believe that a person was
               a law enforcement officer, assaulted such officer during the course of
               the offense or immediate flight therefrom; . . .
       increase [the offense level] by 6 levels.
The district court made clear that the enhancement went to Thompson’s conduct after the robbery,
not his conduct in the hotel room. Both Thompson and Jones brandished their firearms as they fled
the room. The evidence presented during the sentencing hearing also confirmed that the two
defendants were on sufficient notice that the pursuing officers were, in fact, police officers.
        Even assuming arguendo that there was insufficient evidence that Thompson himself shot
at the officers, there was sufficient evidence that “a person for whose conduct” Thompson was
No. 06-6233           United States v. Thompson                                                Page 5


“otherwise accountable” created “a substantial risk of serious bodily injury.” There is little dispute
that Jones fired at the officers during the flight. In discussing Thompson’s leadership role in the
conspiracy, the district court found that Thompson “was the man in charge” because: (a) “he was
the man with whom the CI negotiated to try to arrange to buy 20 kilograms of cocaine,” JA 133; (b)
the “negotiations continued with Thompson,” id.; (c) “he was the man that was doing all the talking
and wanted to see the cocaine,” id.; (d) “[h]e’s the one that went out and brought in Jones to try to
complete the deal with his additional money,” JA 134; and (e) “[h]e was also giving directions to
Jones, who attempted to turn left down the hall. And he directed him, no, to go right down the hall
and down the stairs at the end of the hall,” id. Finding Thompson to be “the man in charge,” it was
not unreasonable for the district court also to conclude that he should be held “accountable . . . for
the shots being fired by Jones.” JA 131. Under U.S.S.G. § 3A1.2(c), this was sufficient to apply the
six-level enhancement.
       3.      Guidelines Enhancement for Leadership Role
        Thompson also challenges the four-level increase he received for his leadership role in the
conspiracy. The Guidelines call for a four-level enhancement if a defendant is an “organizer or
leader of a criminal activity that involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). Thompson argues that the evidence points to Jones, not Thompson, as the
leader. The district court recognized that Jones also played a significant role in the conspiracy and
robbery. More than one person can, however, hold a leadership role in the conspiracy for purposes
of the Guidelines enhancement. U.S.S.G. § 3B1.1 cmt. n.4 (“There can, of course, be more than one
person who qualifies as a leader or organizer of a criminal association or conspiracy.”). Given that
Thompson negotiated the details of the drug sale, had the money, and checked the cocaine for
quality, the district court properly concluded that he had a leadership role.
       4.      Double Counting
        Thompson next alleges that the district court enhanced his Guidelines offense level under
U.S.S.G. § 3A1.2(c) for the same activity it sentenced him under 18 U.S.C. § 924(c)(1)(A)(iii). He
argues that by doing so, the district court punished him twice for the same criminal activity. “[T]he
‘established rule’ in this circuit is that ‘impermissible “double counting” occurs when precisely the
same aspect of a defendant’s conduct factors into his sentence in two separate ways.’” United States
v. Sabino, 307 F.3d 446, 450 (6th Cir. 2002) (quoting United States v. Farrow, 198 F.3d 179, 193
(6th Cir.1999)). U.S.S.G. § 2K2.4(b) provides that if a defendant was convicted under 18 U.S.C.
§ 924(c), the term of imprisonment is that required by the statute. Thus, the question is whether the
same aspect of Thompson’s conduct factors into 18 U.S.C. § 924(c)(1)(A)(iii) and U.S.S.G. § 3A1.2
in two separate ways.
        The district court did not engage in impermissible double counting. A key aspect of
Thompson’s conduct that enhanced his Guidelines range under U.S.S.G. § 3A1.2—the fact that the
people Jones was shooting at were police officers and not simply private citizens—is not a factor
of the crime set forth under 18 U.S.C. § 924(c)(1)(A)(iii). Thus, this is not a case where “precisely
the same aspect” of a defendant’s conduct impacted his sentence in two separate ways. United States
v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994) (“By their terms, there is no inherent or necessary overlap
between § 924(c)(1) and § 3A1.2(b)—indeed most § 924(c) violations do not involve an ‘official
victim.’ The mere fact that the drug trafficker in this particular case used a law enforcement
officer’s gun against the officer should not preclude a court from applying both the firearm statute
and the ‘official victim’ adjustment.”); cf. United States v. Cousins, 469 F.3d 572, 575 (6th Cir.
2006) (upholding the district court’s enhancement under U.S.S.G. § 3A1.2 even though the
defendant was convicted under 18 U.S.C. §§ 871(a) and 879(a)(2) for threatening the President of
the United States and his family). Accordingly, we reject Thompson’s claim that the district court
erred by applying the enhancement under U.S.S.G. § 3A1.2.
No. 06-6233           United States v. Thompson                                                 Page 6


C.     Mandatory Sentence Under 18 U.S.C. § 924(c)(1)(A)
         In his final argument, Thompson asserts that the district court violated the Sixth Amendment
because the discharge-of-a-firearm enhancement under 18 U.S.C. § 924(c)(1)(A)(iii) was not pled
in the indictment or found by a jury beyond a reasonable doubt, in violation of the Supreme Court’s
holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296
(2004). Had the district court sentenced him under subparagraph (i) for use and carry of a firearm,
rather than (iii) for the discharge of one, he would have been subject only to a five-year, rather than
ten-year, mandatory minimum sentence.
       Although we reject Thompson’s Apprendi-based argument, we do conclude that the district
court committed reversible error by applying subparagraph (iii) to Thompson under the specific
language of the indictment.
       1.      Harris v. United States
       Section 924(c)(1)(A) provides in relevant part:
       Except to the extent that a greater minimum sentence is otherwise provided by this
       subsection or by any other provision of law, any person who, during and in relation
       to any crime of violence or drug trafficking crime (including a crime of violence or
       drug trafficking crime that provides for an enhanced punishment if committed by the
       use of a deadly or dangerous weapon or device) for which the person may be
       prosecuted in a court of the United States, uses or carries a firearm, or who, in
       furtherance of any such crime, possesses a firearm, shall, in addition to the
       punishment provided for such crime of violence or drug trafficking crime--
               (i) be sentenced to a term of imprisonment of not less than 5 years;
               (ii) if the firearm is brandished, be sentenced to a term of
               imprisonment of not less than 7 years; and
               (iii) if the firearm is discharged, be sentenced to a term of
               imprisonment of not less than 10 years.
        Thompson’s Apprendi argument is foreclosed by the Supreme Court’s holding in Harris v.
United States, 536 U.S. 545 (2002). In Harris, the Court held that subparagraphs (ii) and (iii) were
sentencing factors that may be found by a preponderance of the evidence by a judge, rather than
elements of the crime that must be found by a jury under the higher standard. Id. at 568. The
petitioner in Harris had argued that the Court’s decision in Apprendi conflicted with its earlier
decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). In Apprendi, the Court explained,
“[O]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. However, fourteen years earlier, the Court in McMillan “had declined to
adopt a more restrictive constitutional rule. McMillan sustained a statute that increased the
minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge
found, by a preponderance of the evidence, that the defendant had possessed a firearm.” Harris, 536
U.S. at 550 (discussing McMillan). The two earlier decisions could be reconciled, according to the
Court:
       . . . McMillan and Apprendi are consistent because there is a fundamental distinction
       between the factual findings that were at issue in those two cases. Apprendi said that
       any fact extending the defendant’s sentence beyond the maximum authorized by the
       jury’s verdict would have been considered an element of an aggravated crime—and
No. 06-6233           United States v. Thompson                                                  Page 7


        thus the domain of the jury—by those who framed the Bill of Rights. The same
        cannot be said of a fact increasing the mandatory minimum (but not extending the
        sentence beyond the statutory maximum), for the jury’s verdict has authorized the
        judge to impose the minimum with or without the finding. As McMillan recognized,
        a statute may reserve this type of factual finding for the judge without violating the
        Constitution.
Id. at 557.
        Blakely, in turn, applied the holding of Apprendi in reviewing a state judge’s enhancement
of a defendant’s sentence above the statutory maximum. 542 U.S. at 301. The Supreme Court
distinguished McMillan, explaining that the decision was not on-point because it “involved a
sentencing scheme that imposed a statutory minimum if a judge found a particular fact.” Id. at 304
(citing Harris in support). Pointedly, Blakely did not reverse either McMillan or Harris. Likewise,
when presented with a similar question in Booker, the Court did not overturn or otherwise comment
negatively about the continuing vitality of McMillan or Harris.
        Prior panels of this court have recognized that Harris is still controlling, even post-Blakely
and Booker. See, e.g., United States v. Gonzalez, 501 F.3d 630, 643 (6th Cir. 2007) (“The
application of this mandatory minimum [of five years under 21 U.S.C. § 841(b)(1)(B)] creates no
Apprendi problem, moreover, because five years does not exceed the statutory maximum of twenty
years’ imprisonment that can be imposed . . . under 21 U.S.C. § 841(b)(1)(C).” (citing United States
v. Wade, 318 F.3d 698, 705 (6th Cir. 2003) (holding that Harris confined the constitutional
requirements of Apprendi to factors that increase a defendant’s sentence beyond the
otherwise-applicable statutory maximum))); United States v. Bowen, 194 F. App’x 393, 404 (6th Cir.
2006) (explaining that the court could “see no reason to hold Harris has been implicitly overruled
by Booker and Blakely”). Other courts have similarly recognized the vitality of Harris. United
States v. Williams, 464 F.3d 443, 449 (3d Cir. 2006) (“Harris remains binding law in the wake of
the Booker decision.”); United States v. Estrada, 428 F.3d 387, 391 (2d Cir. 2005) (“[W]e are bound
by the Supreme Court’s rulings in AlmendarezTorres and Harris.”); United States v. Dare, 425 F.3d
634, 641 (9th Cir. 2005) (“We cannot question Harris’ authority as binding precedent.”); United
States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005) (“Under Harris, which the Supreme Court did not
disturb in Booker, imposition of the ten-year mandatory minimum sentence for violation of
924(c)(1)(A)(iii) did not violate the Sixth Amendment.”). While Thompson asks us, in effect, to
find that Harris has been implicitly overruled by Blakely and Booker, we do not have the authority
to do that. Williams, 464 F.3d at 449 (citing cases); see also Agostini v. Felton, 521 U.S. 203, 237
(1997) (reaffirming the rule that “[i]f a precedent of [the] Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling
its own decisions”). Accordingly, we deny Thompson’s Apprendi challenge.
        2.     Exceeding the Scope of the Indictment
       Yet, while we find no error under Apprendi, we do conclude that the district court erred in
applying subparagraph (iii) under the particular language of the indictment. Courts have long
understood that a criminal indictment holds a central place under the U.S. Constitution. It
        protects three constitutional due process rights, namely: the Sixth Amendment’s right
        to fair notice of the criminal charges against which one will need to defend; and the
        Fifth Amendment’s dual protections against twice placing a defendant in jeopardy
        for the same offense, and holding the defendant to answer for crimes not presented
        to or indicted by a grand jury.
No. 06-6233           United States v. Thompson                                                Page 8


United States v. Combs, 369 F.3d 925, 935 (6th Cir. 2004) (quoting United States v. Pandilidis, 524
F.2d 644, 648 (6th Cir. 1975)). The grand jury is vested with the exclusive authority of setting the
criminal charges in an indictment.
       The grand jury charged both Thompson and Jones with violating § 924(c)(1)(A).
Specifically, the indictment reads in relevant part:
                                         COUNT THREE
                          THE GRAND JURY FURTHER CHARGES:
               On or about April 26, 2005, in the Middle District of Tennessee, KENNETH
       L. JONES, knowingly used, carried, and discharged a firearm, to-wit: a Glock,
       Model 21, .45 caliber, semi-automatic pistol, during and in relation to a drug
       trafficking crime for which he may be prosecuted in a court of the United States,
       to-wit: a violation of Title 21, United States Code, Sections 846 and 841(a)(1).
              In violation of Title 18, United States Code, Section 924(c), and Title 18,
       United States Code, Section 2.
                                          COUNT FOUR
                          THE GRAND JURY FURTHER CHARGES:
               On or about April 26, 2005, in the Middle District of Tennessee, THOMAS
       M. THOMPSON, knowingly used and carried a firearm, to-wit: a Ruger, Model
       P94, .40 caliber, semi-automatic pistol, during and in relation to a drug trafficking
       crime for which he may be prosecuted in a court of the United States, to-wit: a
       violation of Title 21, United States Code, Sections 846 and 841(a)(1).
              In violation of Title 18, United States Code, Section 924(c), and Title 18,
       United States Code, Section 2.
By the terms of Count 4, the grand jury charged Thompson with using and carrying the Ruger during
and in relation to a drug trafficking crime, and aiding and abetting the same under 18 U.S.C. § 2.
Though evidence during the sentencing hearing did not establish that the Ruger was discharged
during the course of the drug trafficking crime, the district court sentenced Thompson to the 10-year
mandatory minimum under § 924(c)(1)(A)(iii) based on evidence that Jones had discharged the
Glock.
        We recognize that, as a general matter, Thompson may indeed be held liable for Jones’
conduct. As the Government points out, aiding and abetting liability is available under 18 U.S.C.
§ 2 and Pinkerton liability is available for co-conspirators. Nevertheless, the question here is not
whether Thompson may be held liable for Jones’ actions generally, but rather whether, under the
specific language of § 924(c) and the indictment, the district court appropriately sentenced
Thompson to the 10-year mandatory minimum.
        There are two fundamental problems with the district court’s sentence. First, by the terms
of the indictment, the grand jury charged Thompson with using and carrying “a Ruger” in
connection with drug trafficking, and aiding and abetting the same under 18 U.S.C. § 2. Under a
plain reading of the indictment, the Ruger, being “a firearm” for purposes of § 924(c)(1)(A), would
be “the firearm” for purposes of Thompson’s sentence. Second, the indictment charged Thompson
not only with respect to a particular make and model of firearm, it also charged him with respect to
specific criminal activity—“us[ing] and carr[ying]” a firearm. In contrast, it charged his
No. 06-6233               United States v. Thompson                                                             Page 9


co-defendant with “us[ing], carr[ying], and discharg[ing]” a firearm. Thus, the indictment not only
failed to provide Thompson notice that the Glock could serve as “the firearm” for purposes of the
§ 924(c)(1)(A) enhancements,2it also failed to put him on notice that he could be held responsible
for the discharge of a firearm.
        Had the grand jury expressly incorporated Count 3 into Count 4, then Thompson would have
had clear notice that by pleading guilty to Count 4, including the reference to the aiding and abetting
statute, he was also potentially liable for the actions of his co-defendant spelled out in Count 3.
Alternatively, the grand jury could have dispensed with listing any of the sentencing factors of 18
U.S.C. § 924(c)(1)(A)(i)-(iii) in either Count 3 or 4—i.e., it could have omitted any references to
the particular make and model of firearm or the term “discharge” in Count 3, and simply referred
to § 924(c)(1)(A) in both counts. See Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998)
(“An indictment must set forth each element of the crime that it charges. But it need not set forth
factors relevant only to the sentencing of an offender found guilty of the charged crime.”); United
States v. Perez-Olalde, 328 F.3d 222, 224 (6th Cir. 2003) (explaining that sentencing factors need
not be included in the grand-jury indictment); Buckley v. Butler, 825 F.2d 895, 903 (5th Cir. 1987)
(“[T]here is no Fifth Amendment right to grand jury indictment on the sentencing facts.”).
        Instead, by charging Jones specifically with using, carrying and discharging a Glock and
charging Thompson only with using and carrying a Ruger, the grand jury narrowed the indictment
vis-à-vis Thompson in a material way. Cf. United States v. Leichtnam, 948 F.2d 370, 379–81 (7th
Cir. 1991) (holding that the Government’s decision to limit indictment to a particular weapon
constituted a material narrowing of indictment); see also United States v. Bishop, 469 F.3d 896,
901–04 (10th Cir. 2006) (same). Because the indictment did not give Thompson fair notice that he
could be held responsible for discharge of the Glock, the district court impermissibly exceeded the
scope of the indictment at the sentencing stage. Accordingly, we reverse and vacate Thompson’s
ten-year mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A)(iii).
       We note for clarification that our holding today does not limit the district court on remand
to consider only whether Thompson should receive a mandatory minimum of five years under
§ 924(c)(1)(A)(i). Subparagraph (ii) of that section provides a seven-year mandatory minimum
sentence for “brandishing” a firearm. Neither Count 3 nor Count 4 specifically reference
brandishing or subparagraph (ii). As the grand jury did not narrow the indictment with respect to
brandishing as it did with respect to discharging, the district court is free to consider whether
Thompson should receive a sentence for brandishing the Ruger.
                                                          III
       Finally, we briefly respond to a few of the dissent’s comments. The dissent proposes a
“Golden Mean” to guide sentencing courts based in part on the principle that all judicial factfinding
must be eschewed unless either the factfinding results in a sentence somewhere within the initial
base-offense level under the Guidelines or the district court explicitly explains why the concepts of
general and individual deterrence outweigh the mitigating circumstances and the likelihood of

         2
           In United States v. Robison, this court held that “the specific type of firearm used or possessed by the
conspirator is not an essential element of the crime.” 904 F.2d 365, 369 (6th Cir. 1990). The Ninth Circuit has similarly
held that language in an indictment describing the model of a firearm is mere “surplusage, rather than an essential
element of the crimes for which [the defendant] was charged.” United States v. Hartz, 458 F.3d 1011, 1021 (9th Cir.
2006). As the Supreme Court has explained, “The insertion of surplus words in the indictment does not change the
nature of the offense charged.” Bridges v. United States, 346 U.S. 209, 223 (1953). Robison and Hartz, however,
involved claims of constructive amendment; in the instant case, Thompson pleaded guilty to the § 924(c) charge and,
consequently, whether he was convicted of an offense other than that charged in the indictment is not at issue. Moreover,
the indictment here not only charged Thompson and his co-defendant in relation to different firearms, but, importantly,
different criminal activity.
No. 06-6233               United States v. Thompson                                                            Page 10


successful rehabilitation. Dis. op. at 14. In order to adopt this Golden Mean, however, courts would
first have to don the crowns of philosopher-kings—for that is the only way that any court in this
circuit could avoid the clear import, reasoning and holding of binding precedent.
        As explained above, both the Supreme Court and this court have consistently treated adjusted
Guidelines ranges as the applicable ranges for purposes of 18 U.S.C. § 3553(a)(4). See supra
§ II.B.1. Adjustments to the base-offense level routinely depend upon facts found by sentencing
judges by a preponderance of the evidence. The Supreme Court has sanctioned judicial factfinding,
even factfinding that enhances rather than reduces a defendant’s sentence, so long as the factfinding
does not result in a sentence beyond the statutory maximum. See supra § II.B.1. Had the Supreme
Court meant, instead, that the applicable Guidelines range really should be the base-offense level,
unadjusted by any judicial factfinding, one would have expected that it would    have clarified and
expounded upon such a seismic shift in how the Guidelines are calculated.3 In fact, if the dissent’s
position were sound, one wonders why the Supreme Court did not excise much of the Guidelines
when it excised portions of 18 U.S.C. § 3553 and § 3742 in Booker.
       The dissent’s position also conflicts with the underlying theory of the Supreme Court’s
recent Rita decision. The theory of Rita is that the Guidelines do take the sentencing factors of
§ 3553 into account, and when the district court independently takes those factors into account, and
reaches a consistent result, a court of appeals may presume that the district court has properly
weighed the sentencing factors. See Rita, 127 S. Ct. at 2463. The theory only makes sense if the
Guidelines are applied as they were contemplated to apply—by taking into account enhancements
provided for by the Guidelines. There is simply no basis to contend that the Sentencing Commission
ever contemplated sentencing without taking into account enhancements provided for by the
Guidelines.
        As to the couple of points that the dissent makes about this particular case, the dissent’s
analysis rings hollow. Leaving aside whether engaging in a conspiracy to distribute five or more
kilograms of cocaine is a “victimless” crime, Dis. op. at 12, part of Thompson’s sentence was based
on his being a felon in possession of a firearm and using and carrying the firearm during the drug
transaction. As the district court found based on police testimony and video surveillance,
Thompson’s “use” of the firearm included pointing it at the CI and the undercover police officer.
Thompson’s illegal activities were hardly “victimless.”
        Finally, the district court did not engage in a “rote sentencing” of Thompson, the dissent’s
characterization to the contrary notwithstanding. Dis. op. at 17. The district court held a sentencing
hearing for Thompson and one of his co-defendants. The court heard testimony from three eye
witnesses. The transcript of the hearing runs over 100 pages. A review of the transcript confirms
that the district court addressed each of Thompson’s objections. It also confirms that the court
considered the relevant sentencing factors and provided a reasoned explanation for the sentence.
Accordingly, apart from the district court’s error in exceeding the indictment on the § 924(c)(1)(A)
charge, we find no other abuse of discretion in its sentencing of Thompson.



         3
           In fact, it is unclear whether the dissent’s approach would apply to all adjustments to a defendant’s base-
offense level or just enhancements but not reductions. On the one hand, logic would suggest that the base-offense level
is just that—no adjustments, period. This approach would put in jeopardy, among other things, all reductions for
acceptance of responsibility and cooperation, neither of which are ever submitted to the jury and which collectively have
to be among the most frequently applied adjustments of all. On the other hand, the Sixth Amendment protects a criminal
defendant, not the Government, so presumably the dissent’s approach would permit reductions to the base-offense level
based on judicial factfinding, although one might expect that the Government would be far more inclined to oppose
vigorously all reductions if enhancements were off the table. If the latter approach is the one proposed by the dissent,
then “seismic shift” likely understates the impact it would have on federal sentencing.
No. 06-6233        United States v. Thompson                                      Page 11


                                           IV
        Accordingly, for the reasons set forth above, we AFFIRM IN PART and REVERSE IN
PART Thompson’s sentence. We REMAND the case to the district court for the limited purpose
of resentencing under 18 U.S.C. § 924(c)(1)(A) consistent with this opinion.
No. 06-6233                United States v. Thompson                                                             Page 12


                                                  _______________
                                                     DISSENT
                                                  _______________
        MERRITT, Circuit Judge, dissenting. Except for those judges and lawyers who prefer to
continue routine conformity to the old pre-Blakely-Booker process of guideline sentencing, there is
widespread disapproval of the present muddled system. This is because, in the main, the old system
is just continuing on as though nothing had happened — continuing under the pretext that the
guidelines are only “advisory” instead of being considered only as a starting point against the
backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This
case is one more example of the continuing problem, the problem of guidelineism, or “guidelinitis,”
the inability of most federal courts to break their habit of mechanically relying just on the guidelines
alone.
         Here we have a young, drug-addicted, black man dealing in cocaine. Born illegitimate in
Nashville without a father figure, he was abandoned as a child and sent to Tennessee Preparatory
School, a school for orphans, juvenile delinquents and other problem children. Tests showed some
mental retardation as a child. He is now a sad case, with two small children of his own to support
and a virtual lifetime in prison. By ratcheting up the sentence, as is typical under the guidelines,
piling aggravator on aggravator, the District Court, in lock-step with the Nashville, Tennessee, U.S.
Probation Office recommendations (as though Booker had never been decided), went from a base
offense level of 32 with 10 criminal history points (corresponding to defendant’s guilty plea),
carrying a penalty of 15 years, 8 months, to a sentence of 40 years — forty years in prison for a
victimless drug crime. The District Court even made findings of fact not admitted by the defendant
that triggered an additional mandatory minimum consecutive sentence of 10 years on top of all the
other judicial findings of enhancements not admitted by the defendant. Most of the 40-year sentence
imposed by the court was based on facts never admitted by the defendant or found by a jury.
        Such harsh sentences are par for the course under the guidelines. The sentencing court
imposed a harsh sentence without seriously considering mitigating family and personal factors or
rehabilitation possibilities — all in line with the U.S. Sentencing Commission rules    against the
consideration of such individual factors in Chapters 5H and 5K of the Guidelines.1 This refusal to
seriously consider individual factors, including rehabilitation, has been the most important
characteristic of the work of the Sentencing Commission. From the beginning, the guidelines have
emphasized collectives, not individuals; and individualized sentencing by federal judges, the
weighing of aggravators and mitigators through a process of dialectic reflection and reconciliation,
has become a relic of the past. The creation of these guidelines involved the breakdown of behavior
into smaller and smaller parts and categories of aggravators or enhancements without consideration
of other important individual factors.




         1
            The Commission’s “not relevant” rule against consideration of a host of mitigating factors such as age,
physical condition, education, employment, military, public service, good works, disadvantaged upbringing, addiction,
mental illness, family ties, and rehabilitation possibilities are directly contrary to the Supreme Court’s interpretation of
the Eighth Amendment in Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982),
requiring states in sentencing to consider such mitigating factors. The Sentencing Commission, and now the federal
courts at its direction, refuse to take into account the mitigating and humanizing factors that Lockett and Eddings require.
There is no indication that any such factors were considered or influenced the sentence in this case.
No. 06-6233                United States v. Thompson                                                              Page 13


         The ratcheting-up process in the instant case was all based upon judicial findings of fact.2
It is obvious to anyone who has watched this disingenuous process develop that the present system
is completely inconsistent with the Blakely and Booker opinions, which confine judicial fact finding
to those facts carrying out a jury verdict or plea of guilty. As the Court said in Cunningham, “under
the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be
found by a jury, not a judge.” Cunningham v. California, 127 S. Ct. 856, 863-64 (2007) (emphasis
added). This statement of the Sixth Amendment rule was first stated in Blakely even more clearly
and then repeated in Booker and Rita. It is still unclear, however, whether the Supreme Court is
going to stay with or erode and then reject the clear holding of Blakely:
         [T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
         may impose solely on the basis of the facts reflected in the jury verdict or admitted
         by the defendant. In other words, the relevant ‘statutory maximum’ is not the
         maximum sentence a judge may impose after finding additional facts, but the
         maximum he may impose without any additional findings. When a judge inflicts
         punishment that the jury's verdict alone does not allow, the jury has not found all the
         facts ‘which the law makes essential to the punishment,’ and the judge exceeds his
         proper authority.
Blakely v. Washington, 542 U.S. 296, 303-04 (2005) (emphasis added). What is clear is that the
district courts and the courts of appeals, as the majority in this case expressly acknowledges, are not
applying this rule and do not believe the Supreme Court actually intends to enforce it. The view
seems to be that the remedial opinion in Booker is inconsistent with this rule, and so the rule may
be simply disregarded in practice.3 Justice Scalia predicted such a result in Booker, noting that the
Court’s remedial scheme risked preserving “de facto mandatory guidelines by discouraging district
courts from sentencing outside Guidelines ranges.” United States v. Booker, 543 U.S. 220, 313
(2005) (Scalia, J., dissenting). Indeed, this de facto, mandatory application of the guidelines runs
afoul of the Supreme Court’s admonition that “Booker’s remedy for the Federal Guidelines . . . is
not a recipe for rendering our Sixth Amendment case law toothless.” Cunningham v. California,
127 S. Ct. 856, 870 (2007). Many of the members of the Supreme Court have recognized in

         2
            It is significant that in the recent cases, Rita v. United States, 127 S. Ct. 2456 (2007), Gall v. United States,
2007 U.S. LEXIS 13083 (Dec. 10, 2007), and Kimbrough v. United States, 2007 U.S. LEXIS 13082 (Dec. 10, 2007),
in which the Supreme Court upheld the district court sentences, the sentence was within or below the guideline range
corresponding to the jury verdict or guilty plea. There was no ratcheting up of the sentence by enhancements outside
of the initial sentencing range. There were no judicial fact findings that raised the sentence, and there is no Supreme
Court case that allows a court to use guideline enhancements to raise a sentence above the guideline range corresponding
to the jury verdict or plea. So when the Supreme Court uses the phrase “within the guidelines,” as it does frequently in
these cases, it is not yet clear what precisely it means or that it means enhanced sentences based on findings of facts by
the judge over and above the facts found by the jury verdict or the guilty plea.
          The Supreme Court did not say in Gall or Rita that the sentencing judge should “start” the sentencing process
by enhancing the sentence aggravator by aggravator, as happened in the instant case. The Court said that the sentencing
judge should begin with the “applicable Guidelines range” which in Gall was the initial base offense level corresponding
to facts admitted by the guilty plea, which carried a range of 30 to 37 months. There is no language in Gall or Rita that
requires appellate or district judges to “begin” with the enhancement process. That process is directly contrary to the
language quoted below in Blakely that a “judge exceeds his proper authority” by basing a higher sentence on judicial
findings outside the jury verdict.
         3
          The empirical data on this point are clear. From 1990-2003, 90.6% of offenders received sentences adhering
to the Guidelines range. In 2006, after Booker purportedly made the Guidelines “advisory,” 86.3% of offenders still
received sentences in the Guidelines range, a range including judicial enhancements. Furthermore, appellate review of
these within-Guidelines sentences has not changed post-Booker, as circuit courts have affirmed 99.9% of within-
Guidelines sentences. Conversely, Circuit courts reversed below Guidelines sentences almost 85% of the time, while
only reversing above-Guidelines sentences in less than 5% of the cases. See James Bilsborrow, Note, Sentencing
Acquitted Conduct to the Post-Booker Dustbin, 49 WM. & MARY L. REV. 289, 314-15 (2007).
No. 06-6233                United States v. Thompson                                                              Page 14


opinions at one time or another the unprincipled, inconsistent nature of the sentencing game in
which we are now engaged.4
        The only way to begin to return the process to something consistent with the Sixth
Amendment and with the concept of individualized sentencing is to recognize and insist that we
stick with two overriding principles: First, that judicial fact finding and the length of a sentence be
limited somewhere within the base-offense-level, guideline range corresponding to the jury verdict
or the plea, unless the sentencing judge explains why the concepts of general and individual
deterrence should require a longer sentence for the particular individual and outweigh the mitigating
circumstances of the case (including factors like age, addiction, and family responsibility deemed
irrelevant by the Sentencing Commission in Chapters 5H and 5K), as well as the likelihood of
successful rehabilitation. Second, that the sentencing judge explain the weighing process outlined
above (taking into account moral culpability, general and special deterrence, mitigating
circumstances and rehabilitation) so that the sentence and its explanation comply with the
“overarching provision instructing district courts to ‘impose a sentence . . . not greater than
necessary’ to accomplish the goals of sentencing,” Kimbrough v. United States, 2007 U.S. LEXIS
13082, at *30 (Dec. 10, 2007) (quoting 18 U.S.C. § 3553(a)). This “overarching provision,” enacted
by Congress in § 3553(a), sets a humane, balancing standard that the sentencing judge should keep
as the Golden Mean governing the judicial reflection necessary in each sentencing case to reconcile
contrary factors and arguments in the weighing process in order to arrive at a fair sentence.
       If judges or lawyers have any doubt about the limitation on judicial fact finding that the
Blakely-Booker-Cunningham line of cases imposes on sentencing judges and the courts of appeals,
they should carefully reread the Cunningham case decided a year ago. Six justices joined in the
opinion. The opinion opens by stating the question:
                The question presented is whether the DSL [the California determinate
         sentencing law], by placing sentence-elevating fact finding within the judge’s
         province, violated the defendant’s right to trial by jury safeguarded by the Sixth and
         Fourteenth Amendments. We hold that it does.
Cunningham v. California, 127 S. Ct. 856, 860 (2007). After stating the fact that the sentencing
judge ratcheted up the defendant’s sentence by one level based on judicial fact finding, the court
began its analysis of the question in Section II, as follows:
         This court has repeatedly held that, under the Sixth Amendment, any fact that
         exposes a defendant to a greater potential sentence must be found by a jury, not a
         judge, and established beyond a reasonable doubt, not merely by a preponderance of
         the evidence.
Id. at 863. The court then finds the basis for its decision in the Blakely precedent, quoted above,
decided two years before:
         The judge could not have sentenced Blakely above the standard range without
         finding the additional fact of deliberate cruelty. Consequently, that fact was subject
         to the Sixth Amendment’s jury trial guarantee. 542 U.S. at 304-314, 124 S. Ct. 2531.


         4
            See, for example, the separate opinions of Justice Stevens (“I am not blind to the fact” that “many federal
judges continue to treat the Guidelines as virtually mandatory”); Justices Scalia and Thomas, (“no one knows — and
perhaps no one is meant to know — how advisory Guidelines . . . will function in practice”); Justice Souter (“consistency
began to falter,” the “gravitational pull to now-discretionary Guidelines . . . preserve the very feature . . . that threaten
to trivialize the jury right” so that it is “fair to ask just what has been accomplished”). See Rita, 127 S. Ct. 2456, 2474,
2475, 2487-88.
No. 06-6233           United States v. Thompson                                               Page 15


       It did not matter, we explained, that Blakely’s sentence, though outside the standard
       range, was within the 10-year maximum for class B felonies:
               “Our precedents make clear . . . that the ‘statutory maximum’ for
               Apprendi purposes is the maximum sentence a judge may impose
               solely on the basis of the facts reflected in the jury verdict or
               admitted by the defendant . . . . In other words, the relevant ‘statutory
               maximum’ is not the maximum sentence a judge may impose after
               finding additional facts, but the maximum he may impose without
               any additional findings. When a judge inflicts punishment that the
               jury’s verdict alone does not allow, the jury has not found all the facts
               ‘which the law makes essential to the punishment,’ . . . and the judge
               exceeds his proper authority.” Id. at 303, 124 S. Ct. 2531 (emphasis
               in original) (Quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d.
               ed. 1872)).
Id. at 865. The court emphasized, reemphasized and then stated again that ratcheting up sentences
through judicial fact finding violates the Sixth Amendment:
       If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must
       find an additional fact to impose the longer term, the Sixth Amendment requirement
       is not satisfied.
Id. at 869. Finally, the court makes it clear that Justice Breyer’s remedial opinion in Booker in no
way alters the rule against ratcheting up the sentence by judicial, factual findings of enhancements:
       Booker’s remedy for the federal guidelines, in short, is not a recipe for rendering our
       Sixth Amendment case law toothless. [Footnote 15] Justice Alito, however, would
       do just that. His opinion reads the remedial portion of the Court’s opinion in Booker
       to override Blakely, and to render academic the entire first part of Booker itself.
        In other words, the sentencing judge should start with the base offense level corresponding
to the facts found by the jury verdict or admitted by the guilty plea. The sentencing judge should
not go up or down from that point unless in his or her own mind the weighing process of the two
overriding principles stated above requires it. The judge should not engage in guidelineism,
adjusting the sentence up or down just because the guidelines say so, as occurred in the instant case,
but rather because the judge’s own sense of justice, upon reflection, leads to a different result than
the beginning, base-offense level. This allows the guidelines to play a pivotal role to begin with but
requires the judge to use his or her own mental faculties and best judgment, just as judges did in the
days of indeterminate sentencing before the mandatory federal sentencing guideline era.
        The job of the Court of Appeals should be only to see that the federal sentencing judge
(1) starts at the right place in the reasoning process (at the base offense level corresponding to the
jury verdict or guilty plea), as required by the Sixth Amendment as interpreted by Blakely, Booker,
and Cunningham, and (2) engages in a general process of serious dialectical reflection and
reconciliation, as evidenced by the reasons given for deviating from the starting point established
under Sixth Amendment constraints. This process should put an end to the rote, ratcheting-up
process that now characterizes the sentencing process, a process based on the Commission’s rule
that mitigating factors are “not relevant.”
        This modified system based on these two principles is, more or less, what the system would
have looked like in the beginning if the Guidelines were truly “guidelines” rather than mandatory
rules. If the Commission, in the beginning, as many judges and lawyers recommended, had adopted
guidelines to assist judges rather than to discipline and correct judges this modified system would
No. 06-6233              United States v. Thompson                                                          Page 16


have perhaps provided a workable system. I myself testified before the Commission advising it not
to saddle the judiciary with mandatory rules that are constitutionally suspect because such rules
would most likely eliminate individualized sentencing and full consideration of mitigating factors.
The Commission, however, believed that federal judges could not be trusted to exercise discretion
properly and that harsher sentencing rules must be imposed on judges in order to insure longer
sentences and collective uniformity. The current Guidelines that ratchet up sentences without
considering mitigating factors or rehabilitation are the result.
         The modified system described above is a different process of sentencing from either pure
indeterminate sentencing, as it operated before the guidelines, or the mandatory, rote guideline
process that prevailed before the Sixth Amendment was recognized as a limitation on fact finding.
Hopefully, such a modified system would begin to provide a balance between the collectivized,
sentencing process of lock-step, upward adjustments heretofore required by the Commission, and
the thoughtful individual sentencing by federal judges that was the ideal behind the federal
sentencing system used so effectively (in my opinion) for 200 years since the first Congress enacted
the first sentencing law, 1 Stat. 112, ch. 9 (1790).5 Further, a system that incorporates facets of
indeterminate sentencing preserves the historical role of judges as sentencing experts and the jury
as fact finder. Sentencing procedures based on these roles were never challenged as undermining
the Sixth Amendment’s right to a jury trial because judges did not function as objective fact finders
and judge-found facts did not carry determinate consequences.
        Such a modified system includes an element of democratic, legislative control over
sentencing while keeping elements of individualized sentencing from the old system. Such a
modified system may be strongly resisted by prosecutors and the Department of Justice officials who
have now become accustomed to controlling sentencing through the charging process, the release
of enhancement information to probation officers and plea bargaining. Back in my day as U.S.
Attorney 40 years ago, prosecutors were viewed solely as parties to the case and not entitled to
control the length of the sentence. Removing control of sentencing from the prosecutorial arm of
the government should be viewed as a step forward, although it is really a step back in history to
restore the benefits of individualized sentencing practiced by English and American judges since
the beginning of the 18th Century.
        The modified scheme proposed above squares with the most recent Supreme Court decision,
Gall v. United States, No. 06-7949, 2007 U.S. LEXIS 13083, at *21 (December 10, 2007), in which
the Court instructed district court judges to “make an individualized assessment based on the facts
presented” with the Guidelines operating as the “initial benchmark” but “not the only consideration.”
In Gall, the Supreme Court affirmed the district court’s sentence of thirty-six months probation, a
punishment based upon the district judge’s individualized evaluation of the factors under 18 U.S.C.
§ 3553(a) — particularly rehabilitation — and rejected the appellate court’s rote application of the
Guidelines. Moreover, this approach lessens the likelihood of as-applied Sixth Amendment
challenges, which, as Justice Scalia points out, are still available. Id. at *39 (Scalia, J., concurring).
        Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system
of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in

         5
           The system of jury fact finding and individualized sentencing by judges enacted by the First Congress was
the system developed to reconcile justice with mercy by our judicial forebearers as the English system of criminal law
— developed particularly after the demise of the prerogative courts of Star Chamber and High Commission following
the English civil war, the Glorious revolution of 1688, the English Bill of Rights of 1689, and the creation of an
independent judiciary in the Judges’ Bills of 1692 and 1701. See Harold J. Berman, Law and Revolution II, The Impact
of the Protestant Reformation on the Western Legal Tradition, 226-28, 306-29 (Harvard Univ. Press 2003); Blackstone,
Commentaries on the Laws of England, Book IV, Chap. 29, 368-82 (Legal Classics Library Ed. 1983). The Sentencing
Guidelines removed individualized sentencing by judges that had existed in Anglo-American law for more than three
centuries.
No. 06-6233           United States v. Thompson                                              Page 17


anything close to the deliberative or reflective process outlined by the two overriding principles
stated above. The determinate sentence based on judicial fact finding, including a consecutive
mandatory sentence based entirely on facts never found by the jury or admitted, makes the principle
of Blakely, Booker, and Cunningham a joke. Hence, I would reverse and remand the case for
resentencing from the beginning in compliance with the two overriding principles stated above. The
sentencing court should start with the guideline sentence corresponding to the guilty plea, take a
look at how the guidelines would operate from that point and then engage in the weighing and
explanatory process outlined above without feeling an obligation to reach a result consistent with
the Commission’s guideline structure or policies. After finding the beginning guideline sentence,
it is up to the judge to act like a common law judge of old engaged in the same process that prevailed
in the federal system after 1790 but before the failed, 20-year experiment in mandatory guideline
sentencing.
