                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0251n.06
                            Filed: April 11, 2006

                                            No. 05-3699

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                                  )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT     FOR     THE
v.                                                        )        NORTHERN DISTRICT OF
                                                          )        OHIO
GREGORY J. GEIG                                           )
                                                          )                           OPINION
       Defendant-Appellant.                               )




BEFORE:        MERRITT, MARTIN, and McKEAGUE, Circuit Judges.

       David W. McKeague, Circuit Judge. Defendant-Appellant Gregory J. Geig appeals the

judgment of sentence entered on his guilty plea to conspiracy to defraud the United States. We

affirm the district court’s sentence.

                                                  I.

       From 1997 through April 2002, Geig and his co-conspirators engaged in an illegitimate

property “flipping” scheme which involved purchasing low-priced properties and, instead of

performing repairs to increase their value, obtaining false appraisal reports which inflated their

value. Using these false appraisals, they obtained loans from financial institutions for far more than

the true value of the properties and left buyers with overvalued properties with a high risk of

foreclosure. Geig was caught with a co-conspirator during an FBI undercover sting and charged

with making false statements to financial institutions insured by the Federal Deposit Insurance
No. 05-3699
United States v. Geig

Corporation (“FDIC”). On February 9, 2005, Geig entered into a plea agreement which outlined the

applicable sentencing guidelines and enhancements. The parties stipulated to specific guideline

calculations which included a base offense level of 6 pursuant to U.S.S.G. § 2B1.1 with an upward

adjustment of 6 levels pursuant to U.S.S.G. § 2B1.1(b)(1)(D) based upon a loss of more than thirty

thousand dollars. The calculations also included a reduction of 2 levels for Geig’s acceptance of

responsibility. No other enhancements were outlined or agreed upon in the plea agreement.

       A sentencing hearing was held on May 27, 2005. The district court found Geig’s total

offense level to be 15, which included 6 levels for the base offense, a 6-level enhancement for an

offense involving a loss of more than thirty thousand dollars, a 2-level enhancement for an offense

involving ten or more victims, a 4-level enhancement for being involved in an offense that engaged

in mass marketing, and a 3-level reduction for acceptance of responsibility. After establishing a

sentencing range under the advisory Sentencing Guidelines, the district court considered each of the

factors in 18 U.S.C. § 3553(a) as required by United States v. Booker, 543 U.S. 220 (2005). The

court then sentenced Geig to twenty months imprisonment, assessed a $100 special assessment, and

ordered Geig to pay restitution in the amount of $240,000.

       Geig now appeals his sentence arguing that the district court impermissibly determined the

Guideline range based on judicially found facts in violation of the Sixth Amendment.

                                                II.

       The district court properly acknowledged that it was required to calculate and consider the

applicable sentencing range under the Guidelines and that the resulting range was not mandatory,

but only one of several factors to be considered in ultimately choosing an appropriate sentence. In

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United States v. Geig

the course of calculating the Guideline range, the district court based certain enhancements on facts

which were neither proven to a jury beyond a reasonable doubt nor agreed to by the defendant.

Geig argues that this reliance on judicial fact-finding to increase the advisory Guideline range was

a Sixth Amendment violation under Booker. This argument misconceives the ultimate effect of

Booker on federal sentencing. Booker held that judicial fact-finding (of facts other than a prior

conviction) to increase a defendant’s Guideline range violated the Sixth Amendment right to trial

by jury where the Guideline range was mandatory. Booker, 543 U.S. at 231-33 (“If the Guidelines

as currently written could be read as merely advisory provisions that recommended, rather than

required, the selection of particular sentences in response to differing sets of facts, their use would

not implicate the Sixth Amendment.”). The Booker Court proceeded to excise the portion of the

Guidelines which made them binding on district judges. Id. at 259-60. This approach left the long-

standing practice of judicial fact-finding in place by rendering the Guidelines advisory. Id. at 233

(stating that all nine justices agreed that judicial fact-finding is not a Sixth Amendment violation

under an advisory Guideline scheme).1

                                                 III.

       The Booker decision clearly establishes that when a district court considers the Guideline

sentencing range as advisory, judicial fact-finding does not violate the Sixth Amendment right to



       1
         Every other circuit which has considered this issue has come to the same conclusion. United
States v. Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006); United States v. Crosby, 397 F.3d 103, 112
(2nd Cir. 2005); United States v. Owens, No. 05-2397, slip op. at 6-7, 2006 WL 679830 (7th Cir.
Mar. 17, 2006); United States v. Arroyo-Santiago, No. 05-2563, slip op. at 2, 2006 WL 588091 (8th
Cir. Mar. 16, 2006) (unpublished); United States v. Roa, 160 Fed. Appx. 894, 897 (11th Cir. 2005)
(unpublished).

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United States v. Geig

trial by jury. Geig does not raise any other challenges to his sentence. Therefore, the district court’s

judgment of sentence is AFFIRMED.




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