                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0315n.06
                              Filed: May 4, 2006

                                           No. 05-6137

                          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 WESTERN
v.                                                        )        DISTRICT OF TENNESSEE
                                                          )
KENNETH CHALMERS,                                         )                           OPINION
                                                          )
       Defendant-Appellant.                               )


BEFORE:        SUTTON and McKEAGUE, Circuit Judges; and CALDWELL,* District Judge.

       PER CURIAM. Defendant-Appellant Kenneth Chalmers pleaded guilty to knowingly

uttering and possessing five counterfeit securities with the intent to deceive while aiding and

abetting a co-defendant, in violation of 18 U.S.C. §§ 513(a) and 2. On appeal, he challenges the

sentence he received, namely the district court’s decision to increase the length of his confinement

due to the specific amount of economic loss he caused. Upon review of the record, we find no error.

                                                 I.

       Chalmers entered his guilty plea following a written plea agreement filed in the district court

for the Western District of Tennessee. During the hearing on his guilty plea, the Government stated

that it was prepared to prove, among other things, that the amount of the counterfeit checks totaled

$42,000. Chalmers conceded that the Government’s description of his crime was accurate.



       *
       The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 05-6137
United States v. Chalmers

       Pursuant to Chalmers’s guilty plea, the probation office prepared a presentence investigation

report (“PSR”). The PSR calculated his United States Sentencing Guidelines (the “Guidelines”)

base offense level as six. The PSR suggested the following modifications to that offense level:

       a.      a six-point enhancement under § 2B1.1(b)(1)(D) because the amount of loss due to
               the defendant’s crime was more than $30,000 and less than $70,000; and

       b.      a two-point reduction under § 3E1.1(a) for the defendant’s acceptance of
               responsibility.

The adjusted offense level equaled ten. With a criminal history category of VI, the Guidelines

sentencing range was twenty-four to thirty months imprisonment.

       The district court held a sentencing hearing. The Government offered testimony from a

secret service agent, who testified that Chalmers gave a written statement admitting to attempting

to deposit the counterfeit checks. The agent also testified that the loss resulting from the offense

equaled $42,432.01. The court received the written statement into evidence.

       Based on the agent’s testimony and the written statement, as well as Chalmers’s prior

admission, the district court found the six-point enhancement to be well supported by the record.

After earlier noting that the Guidelines were advisory, the district court then considered the

remaining sentencing factors set out under 18 U.S.C. § 3553. The court concluded that the

appropriate sentence for Chalmers included twenty-four months of imprisonment.

                                                II.

       Chalmers claims that the district court violated the Supreme Court’s holding in United States

v. Booker, 543 U.S. 220 (2005), by engaging in judicial fact-finding during sentencing. He argues

that the Booker decision precludes district courts from engaging in such fact-finding. Accordingly,

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No. 05-6137
United States v. Chalmers

he asks that we reverse the district court on its finding that the economic loss from his crime justified

the six-point enhancement under the Guidelines and remand for resentencing.

        We decline to do so for two reasons. First, Chalmers admitted to the amount of loss during

his guilty-plea hearing. This was sufficient, by itself, to support the enhancement. Id. at 276-77

(Stevens, J., concurring in part and dissenting in part) (“When a defendant pleads guilty, the

[Government] is free to seek judicial sentence enhancements so long as the defendant either

stipulates to the relevant facts or consents to judicial factfinding.”) (quoting Blakely v. Washington,

542 U.S. 296, 310 (2004)). Second, Booker permits judicial fact-finding during sentencing under

the now-advisory Guidelines sentencing regime. See id. at 233 (“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.”); United States v. Williams, 411 F.3d 675, 678 (6th Cir. 2005) (“Booker did

not eliminate judicial fact-finding in sentencing in cases where a defendant plead[s] guilty.”). A

review of the record shows that there was more than sufficient evidence for the district court to find

that the economic loss equaled approximately $42,000.

                                                  III.

        For the foregoing reasons, we AFFIRM the district court’s sentence in this case.




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