                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0888n.06
                           Filed: November 8, 2005

                                           No. 04-5797

                          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
GARION LEWIS,                                         )   DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellant.                           )
                                                      )

BEFORE: KEITH, BATCHELDER, Circuit Judges, and OBERDORFER1, District Judge.

       DAMON J. KEITH, Circuit Judge. Defendant-Appellant Garion Lewis (“Lewis”) was

convicted on a guilty plea for violating 18 U.S.C. §§ 2119 (carjacking) and 924(a)(1)(A)(ii) and (b)

(use and discharge of a firearm in furtherance of a crime of violence). He appeals his sentence,

contending that the district court erred when it sentenced him under the mandatory pre-Booker

sentencing Guidelines. For the reasons set forth below, we VACATE the sentencing order and

REMAND for resentencing consistent with the Supreme Court’s decision in United States v.

Booker, 125 S.Ct. 738 (2005).

I.     BACKGROUND

       A.      Statement of the Case




       1
        The Honorable Louis F. Oberdorfer, United States District Court for the District of
Columbia, sitting by designation.
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       On November 25, 2003, a federal grand jury returned a two-count indictment charging Lewis

with violating 18 U.S.C. §§ 2119 (carjacking) and 924(c)(1)(A)(iii) (using and discharging a firearm

during and in relation to the carjacking). On January 22, 2004, a plea agreement was entered

wherein Lewis pled guilty to both counts of the indictment. In the plea agreement, Lewis agreed

that he would be sentenced according to the United States Sentencing Guidelines (“U.S.S.G.”or

“Guidelines”) and that the term of his imprisonment for violating § 924(c) was a mandatory

minimum of 10 consecutive years.

       The Presentence Report (“PSR”) was submitted on May 28, 2004. The PSR, using the facts

from Lewis’ guilty plea, determined his sentence under U.S.S.G. §§ 2B3.1 (carjacking) and 2K2.4

(using a firearm).    Section 2B3.1 resulted in a base level offense of 20.         Lewis received

enhancements under § 2B3.1(b)(4)(A) (four levels) for discharging a firearm during the offense; §

2B3.1(b)(5) (two levels) for carjacking in furtherance of the offense; and § 2B3.1(b)(7)(B) (one

level) for stealing the victim’s car that cost more than $10,000 but less than $50,000. This raised

Lewis’ adjusted offense level to 27.

       Lewis received a reduction of three levels for acceptance of responsibility, which resulted

in a total offense level of 24. Pursuant to U.S.S.G. § 2K2.4, Lewis’ Guideline for violating § 924(c)

was a statutory minimum of 10 years. The resulting Guideline range for count one was 51 to 63

months. With the addition of 120 months for count two, Lewis’ total effective Guideline range was

171 to 183 months.

       On June 4, 2004, judgment was entered finding Lewis guilty of violating 18 U.S.C. §§ 2119

and 924(c)(1)(A)(iii). At the sentencing hearing, the district court granted the government’s motion
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to depart downward based upon Lewis’ substantial assistance. The court concluded that the

sentencing range for Lewis absent a downward departure was the equivalent of an offense level of

34, Criminal History Category I. The court departed downward from that range to an offense level

of 32 and a sentencing range of 121 to 151 months. Taking into consideration the eight months

Lewis had already served but that the Bureau of Prisons would not credit, the district court sentenced

Lewis to a term of 130 months. After the entry of judgment, Lewis filed a timely notice of appeal.

       B.      Facts

       The PSR sets forth the following conduct as underlying the offense. On September 10, 2003,

Jason Brannon (“Brannon”), a distribution manager for the Chattanooga Times/Free Press

newspaper, was working at a newspaper rack. He was approached by three men, including Lewis

who was holding a gun. The three men threatened to shoot Brannon and forced him to give them

the newspaper rack money as well as his wallet. Brannon told the men that they could get more

money from newspaper racks in other locations. The men pointed the gun at Brannon’s face and

forced him to get into the rear cargo area of his car.

       Brannon instructed the men to drive to Parkridge Hospital where he could remove more

money from the newspaper racks. When they arrived at the hospital, one of the men, with the gun

in his waistband, accompanied Brannon into the hospital. Brannon was forced to remove the money

from the racks.

       The men discovered Brannon’s ATM card and instructed him to withdraw $2,500 from his

account. Brannon attempted withdraw $2,500, but was only permitted to withdraw $300. The men
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then drove to another ATM and Brannon withdrew another $300. After each ATM withdrawal,

Brannon was forced back into the rear cargo area of the vehicle.

       At the third ATM, as Brannon was withdrawing money, a customer drove up and distracted

the men. Brannon ran into the nearby Krispy Kreme Doughnut shop. As Brannon ran into the shop,

Lewis fired two gun shots in Brannon’s direction. One of the bullets hit the Krispy Kreme building.

The men drove away in Brannon’s vehicle. Several days later, Lewis and the other men were

arrested in Atlanta, Georgia.

II.    ANALYSIS

       Lewis was convicted on a guilty plea for violating 18 U.S.C. §§ 2119 (carjacking) and

924(c)(1)(A)(ii), (2)(a) and (b) (use and discharge of a firearm in furtherance of a crime of violence).

Lewis argues on appeal that his sentence should be vacated under Booker, 125 S.Ct. 738, because

the district court sentenced him under the mandatory pre-Booker guidelines.

       The Booker decision made two major changes to the Guidelines. First, Booker requires this

court to determine whether the district court violated the Sixth Amendment when it imposed an

enhanced sentence based on the sentencing judge’s determination of a fact (other than a prior

conviction) that was not found by the jury or admitted by the defendant. Id. at 756. In this case,

there was no Sixth Amendment violation. Lewis admitted in the plea agreement that he discharged

a firearm in furtherance of a crime of violence, with knowledge that this offense included a

mandatory minimum sentence of ten consecutive years. The district court did not violate the Sixth

Amendment when it enhanced Lewis’ sentence beyond the base level offense Guideline range,
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relying on the facts Lewis admitted in his plea agreement. Id. at 749 (citing Blakely v. Washington,

542 U.S. 296 (2004)).

       Second, Booker excised and severed two provisions of the Sentencing Reform Act, 18 U.S.C.

§§ 3553(b)(1) and 3742(e) in order to remedy any potential Sixth Amendment violations created by

mandatory sentencing enhancements under the Guidelines.2 Id. at 764. The Guidelines are now

advisory without these provisions. Id. at 757. Thus, while a district court must still give some

consideration to the appropriate Guideline range when making a sentencing determination, the

district courts are no longer bound by the applicable Guidelines. Thus, it is erroneous for a district

court to sentence a defendant based on the belief that the Guidelines are mandatory, even if no Sixth

Amendment violation results. Id. at 769.

       This appeal presents a non-constitutional Booker error issue. Lewis failed to raise a Booker

challenge to his sentence in district court. Where a challenge to the district court’s sentencing has

not been raised below, this court reviews the district court’s decision for plain error. United States

v. Oliver, 397 F.3d 369, 375 (6th Cir. 2005); see also, United States v. Barnett, 398 F.3d 516, 525

(citing Booker, 125 S.Ct. at 769) (noting that whether a new sentencing hearing is required depends

on “ordinary prudential doctrines” such as “whether the issue was raised below and whether it fails

the plain error test.”); Fed.R.Crim.P. 52(b).

       Under the plain error test, before an appellate court can correct an error not raised at trial,

there must be (1) an error; (2) that was plain (i.e., clear and obvious); (3) that affected substantial


       2
        Section 3553(b)(1) required sentencing courts to impose a sentence within the applicable
Guideline range (in the absence of circumstance that justify a departure) and § 3742 sets forth the
standard of review on appeal for sentencing determinations. Booker, 128 S.Ct. at 764.
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rights. United States v. Hamm, 400 F.3d 336, 339 (6th Cir. 2005) (quotations omitted). If all three

conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but

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

proceedings.” Id.

       The first two prongs under the plain error test are satisfied. There was an error and the error

was plain. The district court erroneously sentenced Lewis under the mandatory pre-Booker

Guidelines. The district court was required to use the mandatory Guidelines. The district court’s

error was “clear” and “obvious” in that it treated the Guidelines as mandatory. See Oliver, 397 F.3d

at 379 (stating that “where the law at the time of trial was settled and clearly contrary to the law at

the time of appeal [] it is enough that an error be ‘plain’ at the time of appellate consideration.”

(quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).

       In this case, the main issue is whether the error affected Lewis’ substantial rights. This

means that the error must have been prejudicial. A prejudicial error must affect the outcome of the

proceedings. United States v. Milan, 398 F.3d 445 (6th Cir. 2005) (citing United States v. Olano,

507 U.S. 725, 734 (1993)).

       In Barnett, this court held that when a district court sentences a defendant assuming that the

Guidelines are mandatory, there is a presumption that defendant’s substantial rights were affected.

398 F.3d at 529, reh’g en banc denied, 400 F.3d 481 (6th Cir. 2005), cert. denied, – S.Ct. –, 2005

WL 1420271 (Sept. 20, 2005). The court applied this standard to the non-constitutional Booker

error finding that the inherent nature of the error makes it exceptionally difficult for the defendant

to demonstrate that the outcome of the lower court would have been different had the error not
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occurred. Id. at 526-27; see also Hamm, 400 F.3d at 340 (stating that even if the district court might

have opted not to depart from the recommendations of the Sentencing Guidelines, the fact that it did

not have the opportunity to do so affected the defendant’s substantial rights). But see United States

v. Shelton, 400 F.3d 1325 (11th Cir. 2005) (rejecting the Barnett presumed prejudice standard);

United States v. Gonzales-Huerta, 403 F.3d 727 (10th Cir. 2005) (same).

       Further, this court in United States v. Oliver, the first Sixth Circuit case interpreting Booker,

found that “even if we conclude that the evidence is ‘overwhelming and essentially uncontroverted’

we cannot know the length of imprisonment that the district court judge would have imposed

pursuant to this evidence following Booker. . . . We would be usurping the discretionary power

granted to the district court by Booker if we were to assume that the district court would have given

Oliver the same sentence post-Booker.” 397 F.3d at 381 n.3.

       The Second Circuit case, United States v. Lake, is also instructive on this point. 419 F.3d

111, 113 (2nd Cir. 2005). In Lake, the court stated that “[a]lthough some sentences imposed under

the pre-Booker regime would not have been different had the sentences been imposed under the

post-Booker regime, it will usually not be easy to divine with certainty that the sentencing judge

would have imposed the same sentence. Id. at 113.

       “The presumption of prejudice can only be rebutted in rare cases where the trial record

contains clear and specific evidence that the district court would not have, in any event, sentenced
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the defendant to a lower sentence under an advisory Guidelines regime.” Webb, 403 F.3d at 382

(emphasis added).3

       The government argues that the record contains clear and specific evidence that the district

court would not change his sentence on remand. The government relies on a recent case from this

court, United States v. Webb, 403 F.3d 373. In Webb, this court found that the district court plainly

erred when it sentenced the defendant under the pre-Booker mandatory Guidelines. The court,

nevertheless, found that the record rebutted the presumption of prejudice and demonstrated that the

district court would not have sentenced the defendant to a lower sentence under an advisory

Guideline regime. The court reasoned that this presumption was rebutted where the district court

(1) sentenced the defendant to the maximum sentence possible within the guidelines’ range; (2)

referred to the defendant as a “menace,” and (3) actually considered an upward departure from the

appropriate guidelines range. Id. at 382. The court concluded that “this [was] an exceptional case

where the record contained clear and specific evidence that the district court would not have

sentenced Webb to a lower sentence under an advisory Guidelines regime. Id. (emphasis added).

       This case, unlike Webb, is not a rare or exceptional case where there is clear and specific

evidence that the district court would not change its sentence under an advisory Guidelines regime.

The government relies on the district court’s statements reprimanding Lewis for his conduct and


       3
         In United States v. Milan, 398 F.3d 445 (6th Cir. 2005), this court noted that in comparison
with other circuits, this circuit has adopted a moderate approach to remanding Sixth amendment
cases involving constitutional and non-constitutional Booker errors. See, e.g., United States v.
Rodriguez, 398 F.3d 1291 (11th Cir. 2005) (finding that most Sixth amendment errors will not result
in remands because the appealing defendant will not be able to demonstrate a reasonable probability
that he was prejudiced). But see, United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005) (finding
that automatic remand is warranted in all Booker cases).
United States v. Lewis
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questioning why he committed the crime. Specifically, the government highlights the district

judge’s statements that:

        I’m at a loss to understand why someone would take the risk that you took to point
        a gun in the middle of a city, aim the gun at a business facility where you knew there
        were people, and fire the gun. I could understand your [sic] trying to shoot Mr.
        Brannon. That’s not good, and it’s not acceptable; that is understandable. What is
        not understandable is firing a weapon into a business where there is such a
        substantial risk of harm to people.
        ...

        If the Court had major concerns that when you got out of jail you would again be
        exercising such poor judgment where you were subjecting innocent citizens to a risk
        of harm, the Court would try to incarcerate you for as long as the Court could. But
        since you do have a clean record and the government has filed a motion on your
        behalf which the Court has granted, the Court is going to give you the benefit of the
        doubt and give you a sentence which is going to result in your being back out on the
        streets in about ten years. You’ll be about 28-29, 29 years old [sic], if you get good
        time. Compared to what other people get, that is not a long time.
        ...

        Giving you the credit for the cooperation that you have rendered to the government,
        the Court is of the view that a sentence of 138 months would be appropriate.

The district court’s statements do not show that this is the rare or exceptional case that presents clear

and specific evidence that it would not have ruled differently under an advisory sentencing regime.

        In addition, even though the district court commented on the severity of Lewis’ crime, it

chose to depart downward. Cf. Webb, 403 F.3d 373 (finding an upward departure, in addition to

other factors, as clear and specific evidence that the district court would not reduce its sentence

under an advisory Guidelines scheme). The district court also indicated that if it had major concerns

that Lewis would commit another crime when he is released from jail, it would incarcerate him for

as long as it could. This is evidence that the district court did not feel that Lewis should receive the

maximum sentence.        Furthermore, Lewis was not sentenced at the top of the Guideline range.
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Unlike Webb, the court did not sentence Lewis at the top of the Guideline range when his range was

121 to 151 months and he was sentenced to 138 months.

       Because the district court might have opted to depart from the recommendations of the

Sentencing Guidelines, the fact that it did not have the opportunity to do so affected the defendant’s

substantial rights. Hamm, 400 F.3d at 340. The district court committed a reversible error that

affected Lewis’ substantial rights when it sentenced him pursuant to the mandatory pre-Booker

sentencing guidelines.

       Finally, it is within this court’s discretion to decide whether the error “seriously affected the

fairness, integrity, or public reputation of the judicial proceedings.” Hamm, 400 F.3d at 340. This

court believes that “[w]e would be usurping the discretionary power granted to the district courts

by Booker if we were to assume that the district court would have given [the defendant] the same

sentence post-Booker.” Id. (citing United States v. Oliver, 397 F.3d 369 (6th Cir. 2005)).

III.   CONCLUSION

       For the reasons stated above, we VACATE Lewis’ sentence and REMAND the case to the

district court for re-sentencing consistent with this opinion.
