           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    United States v. Schray                    No. 03-1136
        ELECTRONIC CITATION: 2004 FED App. 0308P (6th Cir.)
                    File Name: 04a0308p.06                                 STATES ATTORNEY, Grand Rapids, Michigan, for
                                                                           Appellee.
UNITED STATES COURT OF APPEALS                                                                _________________
                  FOR THE SIXTH CIRCUIT                                                           OPINION
                    _________________                                                         _________________

 UNITED STATES OF AMERICA , X                                                CLAY, Circuit Judge. Defendant, Bryan Scott Schray,
                                                                           appeals a January 10, 2003 judgment of the United States
            Plaintiff-Appellee, -                                          District Court for the Western District of Michigan,
                                  -
                                  -   No. 03-1136                          sentencing Defendant to 120 months imprisonment for
           v.                     -                                        manufacturing more than one thousand marijuana plants, in
                                   >                                       violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii).
                                  ,                                        For the reasons set forth below, we VACATE the sentence
 BRYAN SCOTT SCHRAY,              -
          Defendant-Appellant. -                                           and REMAND for re-sentencing.
                                 N                                                              BACKGROUND
       Appeal from the United States District Court
  for the Western District of Michigan at Grand Rapids.                      On August 14, 2002, Defendant, represented by counsel,
    No. 02-00196—Richard A. Enslen, District Judge.                        entered into a written waiver of the indictment requirement
                                                                           for the charges of having manufactured more than one
                    Submitted: June 25, 2004                               thousand marijuana plants, in violation of 21 U.S.C.
                                                                           § 841(a)(1) and § 841(b)(1)(A)(vii). On the same day,
            Decided and Filed: September 10, 2004                          Defendant entered into a plea agreement admitting that on or
                                                                           about June 17, 2002, in Ingham County, in the Western
 Before: KEITH and CLAY, Circuit Judges; O’MEARA,                          District of Michigan, Defendant committed the offenses with
                   District Judge.*                                        which he was charged.

                       _________________                                     On December 23, 2002, the government made a motion for
                                                                           a downward departure under U.S. SENTENCING GUIDELINES
                            COUNSEL                                        MANUAL (“U.S.S.G.”) § 5K1.1, based on Defendant’s
                                                                           substantial assistance to the government in the investigation
ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for                    of others. Defendant later made a separate motion for
Appellant. B. Rene Shekmer, ASSISTANT UNITED                               downward departure based upon his rehabilitation, although
                                                                           no guidelines provision provided for such a departure. See
                                                                           18 U.S.C. § 3553(b)(1) (allowing for departure from the
                                                                           guidelines, where “the court finds that there exists an
    *
      The Ho norable John Corbett O’M eara, United States District Judge   aggravating or mitigating circumstance of a kind, or to a
for the Eastern District of Michigan, sitting by designation.

                                   1
No. 03-1136                      United States v. Schray      3    4        United States v. Schray                              No. 03-1136

degree, not adequately taken into consideration by the             separate range specified by the guidelines. At the sentencing
Sentencing Commission in formulating the guidelines”).             hearing, the district court stated:
  On January 10, 2003, the district court held a sentencing            The [government’s] motion requests no reduction in the
hearing. After hearing arguments in favor of the requested             guideline scoring, but does request the Court relieve the
departures, the district court declined to grant a downward            mandatory minimum sentence of 120 months. The
departure. On the same day, the district court entered                 request, if granted, would reduce the sentence from 120
judgment, sentencing Defendant to a prison term of 120                 months to somewhere in the guideline range of about 63
months.                                                                to 78 months.
  On January 17, 2003, Defendant filed a timely notice of          (J.A. at 149.)1 The figures in the district court’s statement
appeal.                                                            derive from separate sources. The Probation Department’s
                                                                   Presentence Investigation Report found that the federal
                       DISCUSSION                                  sentencing guidelines would mandate a sentence in the range
                                                                   of sixty-three to seventy-eight months, based on Defendant’s
   Defendant’s appeal relates only to the denial of the            criminal history category of II, and the total offense level of
government’s motion for a downward departure. Defendant            25. There was a separate statutory mandatory minimum
raises two issues. First, Defendant contends that the district     sentence of 120 months, for Defendant’s offense, under
court erred as a matter of law in concluding that its only         21 U.S.C. § 841(b)(1)(A)(vii).
options were to deny the downward departure or to sentence
Defendant within the federal sentencing guidelines range.            The district court’s statement expressed an understanding
Secondly, Defendant argues that the district court’s               that the court faced a choice between the statutory mandatory
articulated reasons for denying the departure were not             minimum and the federal sentencing guidelines range. Under
consistent with the sentencing guidelines provisions relating      this view, if the district court had granted a downward
to substantial assistance. Because we find Defendant’s first
claim to be meritorious, we decline to address the second
issue.                                                                  1
                                                                          During the sentencing hearing, Defendant did not ob ject to this
  The sole issue for review, then, is whether the district court   statement. However, the lack of an objection is of no consequence,
erred as a matter of law in assessing its sentencing options.      because Defendant never had an opp ortunity to object. Prior to
                                                                   sentencing, Defendant lacked notice of the district court’s understanding
“A district court’s legal conclusions regarding the application    of its sentencing options. At sentencing, Defenda nt was not given the
of the sentencing guidelines are reviewed de novo.” United         opp ortunity to object after the district court stated its sentencing decision.
States v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002) (citation     F ED . R. C RIM . P. 51(b) (“If a party does not have an opportunity to object
omitted).                                                          to a ruling or order, the absence of an objection does not later prejudice
                                                                   that party.”); United States v. Bo stic, 371 F.3d 865, 871-72 (6th Cir. 2004)
  Defendant argues that the district court wrongly assessed its    (two prior cases in this Circuit have held that there wa s no oppo rtunity to
                                                                   object where “the aggrieved party did not have notice of the issue prior to
sentencing options, stating that it was not authorized to issue    district court’s pronouncement of the sentence, and the district court d id
a sentence beneath the statutory minimum but above a               not give the aggrieved party an opportunity to object after it pronounced
                                                                   the sentence”) (citing United States v. Breeding, 109 F.3d 308 , 310 (6th
                                                                   Cir. 19 97); United States v. Hickey, 917 F.2d 90 1, 906 (6th Cir. 1990)).
No. 03-1136                            United States v. Schray             5    6     United States v. Schray                      No. 03-1136

departure from the statutory mandatory minimum (120                                The district court’s understanding of the law was contrary
months), then the district court would have been prohibited                     to United States v. Stewart, 306 F.3d 295 (6th Cir. 2002). In
from issuing a sentence greater than the guidelines range’s                     Stewart, the district court sentenced the defendant below the
maximum (seventy-eight months). The district court stated                       statutory minimum but above the guidelines range–i.e., the
that it had to choose between two alternatives: a sentence of                   district court granted a sentence of the sort that the district
120 months (which was ultimately imposed) or a sentence in                      court in the instant case had believed it was prohibited from
the range of sixty-three to seventy-eight months (if the                        granting. The defendant appealed, arguing that–consistent
departure were granted). The district court indicated that it                   with the district court’s understanding in the instant case–after
lacked authority to impose a sentence in the intermediate                       the departure was granted, a sentence within the guidelines
range of seventy-eight to 120 months.                                           range was required. Id. at 331. But this Court held that it was
                                                                                permissible for the district court to sentence the defendant to
  The government argues that the district court’s statement                     anything beneath the statutory minimum; the term can exceed
did not reflect the district court’s understanding of the law                   the guidelines range. Id. at 332 (“[W]e now . . . hold that the
but, rather, merely restated the government’s proposed                          appropriate starting point for calculating a downward
request for a departure; yet this argument is unpersuasive.                     departure under 18 U.S.C. § 3553(e) is the mandatory
The government never requested a sentence within the                            minimum sentence itself.”). Applying Stewart to the instant
guidelines range (of sixty-three to seventy-eight months);                      case, if Defendant’s motion for a downward departure had
rather, the government simply requested a departure below                       been granted, then the district court would have been
the 120-month statutory minimum.2             Moreover, the                     permitted to sentence Defendant to anything under 120
government does not have the ability to request anything                        months (i.e., the statutory minimum). In granting the
more than a departure; the extent of the departure is governed                  downward departure, the district court would not have been
by the district court’s discretion, as bounded by applicable                    forced to sentence Defendant within the range of sixty-three
law. The government cannot impose conditions on a motion                        to seventy-eight months (i.e., the guidelines range that would
for a departure. We have no reason to doubt that the district                   have applied, absent the statutory minimum). The district
court’s statement reflected its own understanding of the law.                   court’s statement was contrary to Stewart.
                                                                                  The question, then, becomes whether this Court has
                                                                                jurisdiction to review the district court’s denial of the
                                                                                downward departure. The statute governing appellate
    2
        (J.A. at 20) (the motion for a downward departure stated, “the          jurisdiction contains language that covers the present case:
Governm ent requests and recommendations release of the 10 year                 this Court has jurisdiction to determine whether a sentence
statutory minimum”); (J.A. at 132) (at the sentencing hearing, the              “was imposed as a result of an incorrect application of the
government simply stated, “I . . . believe that the release of the mandatory    sentencing guidelines.” 18 U.S.C. § 3742(a)(2).
minimum would still provide sufficient punishment for this defendant.”);
(J.A. at 174) (the Presentence Investigation Report (“PIR”) stated that
based on the sentencing guidelines “the guideline range for imprisonment          As stated in United States v. Smith, 278 F.3d 605, 609 (6th
is 63 to 78 m onths. However, pursuant to U.S.S.G. § 5G1.1(c)(2), the           Cir. 2002), “[a] district court’s denial of a downward
guid eline for imprisonment becomes 120 months.”) (emphasis added);             departure can be reviewed by this Court only if the district
(J.A. at 176) (the PIR stated, “P ursuan t to the written plea agreement, the   court incorrectly believed that it lacked the authority to grant
government will determine if a downward departure will be recommended
. . . .”).
                                                                                such a departure as a matter of law.” The government argues
No. 03-1136                       United States v. Schray       7    8     United States v. Schray                      No. 03-1136

that the district court’s awareness of its ability to impose a       on the record as a whole, that the error was harmless, i.e., that
sentence below the statutory minimum but above the                   the error did not affect the district court’s selection of the
guidelines range was evinced by the district court’s citation of     sentence imposed.” United States v. Hopkins, 295 F.3d 549,
United States v. Snelling, 961 F.2d 93 (6th Cir. 1991) (per          553 (6th Cir. 2002) (citing Williams v. United States, 503
curiam). However, in Snelling, the relevant issue that this          U.S. 193, 203, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992)).
Court dealt with was whether there is a lower limit on the
sentence that the district court can impose where a departure           There is no basis for a conclusion that the error was
is granted; this Court ruled that the bounds of the pertinent        harmless, in the instant case. In denying the motion for a
statute and reasonableness impose a lower limit. Id. at 96-97.       downward departure, the district court acknowledged that
Yet the instant case deals with a different issue–the upper          Defendant had provided assistance, though the district court
limit on the sentencing range, where a departure is granted.         ultimately concluded that Defendant’s extensive drug dealing
(In the instant case, the district court wrongly perceived that      and violent tendencies outweighed this consideration. (J.A.
if it had granted a departure, then the upper limit on the           at 149-50) (“In this case, the defendant’s assistance, although
sentence would have been seventy-eight months.) This issue           valuable to the plaintiff, provides strong reasons why the
was not dealt with in Snelling; thus, the Stewart case (decided      public should be protected from this individual.”). Hence,
more than a decade after Snelling) correctly stated that the         there is a possibility that the district court’s ultimate
issue of the upper limit was “an issue of first impression in        conclusion was influenced by its misunderstanding of its
this Circuit.” Stewart, 306 F.3d at 331. Moreover, in the            sentencing options. For instance, the district court may have
instant case, the district court’s citation to Snelling could not    felt that Defendant’s “valuable” assistance justified a
possibly have shown awareness of the correct principle of            departure to a sentence of 115 or 105 months, but no shorter
law, because (as explained above) the district court’s               sentence than that. In such a scenario, the district court would
statement of law was contrary to Stewart.                            have thought that it was prohibited from granting what it
                                                                     deemed to be the most appropriate sentence, wrongly
   In the present case, the district court “incorrectly believed     believing that it had to choose between the alternatives of a
that [as a matter of law] it lacked the authority to grant . . . a   120-month sentence or a sentence within the range of sixty-
departure,” in the form of a sentence beneath 120 months but         three to seventy-eight months. The lengthier sentence would
more than seventy-eight months. Smith, 278 F.3d at 609.              have appeared to be the more appropriate of the options,
This Court has jurisdiction to review the denial of a                being closer to the district court’s optimal sentence. In light
downward departure where the district court was aware of its         of the possibility that the district court’s error influenced its
authority to depart but was unaware of the full scope of this        sentencing decision, there is no basis for us to conclude that
authority–as was the case here, where the district court             the error was harmless. Thus, a remand is required.
erroneously believed that it would have lacked authority to
issue a sentence above the sentencing guidelines range, if a                                CONCLUSION
downward departure from the statutory minimum had been
granted.                                                               For the aforementioned reasons, we VACATE the sentence
                                                                     and REMAND the case for re-sentencing in a manner
  In federal sentencing: “[o]nce the court of appeals has            consistent with this opinion.
decided that the district court misapplied the Guidelines, a
remand is appropriate unless the reviewing court concludes,
