                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 05a0331n.06
                                 Filed: April 28, 2005

                                            No. 04-5980

                            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
CHRISTOPHER SHAWN TERRY,                                   THE WESTERN DISTRICT OF
                                                           TENNESSEE
          Defendant-Appellant.




                                                      /

Before:          MARTIN, COOK and LAY,* Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Christopher Terry challenges his sentence in light

of United States v. Booker, 125 S. Ct. 738 (2005). For the following reasons, we VACATE Terry’s

sentence and REMAND for resentencing.

          On May 10, 2004, the United States filed an information charging Terry with being a felon

in possession of a firearm, a violation of 18 U.S.C. § 922(g). The previous felony convictions listed

by the information were burglary of a building, theft of property valued more than $1,000, and the

sale of cocaine, a Schedule II controlled substance. That same day, Terry entered a guilty plea on

the information.



          *
        The Honorable Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
No. 04-5980
United States of America v. Terry
Page 2

       The Federal Sentencing Guidelines dictated a base offense level of fourteen if the defendant

“was a prohibited person at the time [he] committed the instant offense,” U.S.S.G. § 2K2.1(a)(6)(A),

and twenty if “the defendant committed any part of the instant offense subsequent to sustaining one

felony conviction of either a crime of violence or a controlled substance offense,” U.S.S.G. §

2K2.1(a)(4)(A). The district court set Terry’s base level at twenty and granted a three-level

departure for acceptance of responsibility. See U.S.S.G. § 3E1.1. Terry’s prior criminal history

resulted in an assessment of ten criminal history points and the district court added two points,

pursuant to U.S.S.G. § 4A1.1(d), upon finding that Terry committed the instant offense while on

probation. This resulted in twelve criminal history points and a criminal history category of V, with

a corresponding sentencing range of forty-six to fifty-seven months. In sentencing Terry, the district

court stated:

       I have a reason for the sentence that I arrive at; and in your case your criminal
       history score places you at the top of criminal history category V. That would justify
       a sentence at the upper end of your range. In addition, you had two firearms that
       didn’t result in any increase in your range. Two gets punished the same way as one.
       I suppose that factor would justify a sentence toward the upper end. So, Mr. Terry
       given your history, the nature of your prior convictions, the fact that you had twelve
       points, criminal history, I’m going to commit you to the custody of the Bureau of
       Prisons for a term of 54 months.

Terry now appeals, seeking resentencing pursuant to Booker.

       Terry’s first claim is that the district court violated his Sixth Amendment rights when it

calculated a base offense level of twenty based on a prior conviction for either a crime of violence

or a controlled substance offense. In Booker, the Supreme Court reaffirmed its holding in Apprendi

v. New Jersey, 530 U.S. 466 (2000) that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts established by a
No. 04-5980
United States of America v. Terry
Page 3

plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 125 S. Ct. at 756. The fact of a prior conviction is thus specifically

excepted from the reasoning behind the Supreme Court’s recent Sixth Amendment jurisprudence

and the prior conviction exception remains good law unless and until the Supreme Court holds

otherwise. In this case, the base level of fourteen was increased to twenty (and decreased to

seventeen based upon acceptance of responsibility) solely on the fact of a prior conviction and

therefore there is no Sixth Amendment violation.

       Terry’s final claim is that the district court committed error by treating the Federal

Sentencing Guidelines as mandatory and sentencing him accordingly. The sentencing transcript in

this case is quite similar to that in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), where this

Court remanded for resentencing. Furthermore, at oral argument the United States conceded that

remand was appropriate in this case. We therefore VACATE Terry’s sentence and REMAND for

resentencing.
