                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0210n.06
                             Filed: March 28, 2006

                                             No. 04-4504

                           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 THE
ROBERT E. BUTCHER,                                  )    NORTHERN DISTRICT OF OHIO
                                                    )
         Defendant-Appellant.                       )




         Before: DAUGHTREY and McKEAGUE, Circuit Judges, and McCALLA,* District
Judge.


         PER CURIAM. The defendant, Robert E. Butcher, appeals the pre-Booker prison

sentence of 37 months imposed upon him as a result of his guilty plea to the charge of

making a false statement in the acquisition of a firearm. Before this court, he asserts that

the district judge erred in his calculation under the sentencing guidelines by considering

Butcher’s previous conviction for involuntary manslaughter to be one for a “crime of

violence.” He also contends that the sentencing court committed plain error by treating the

guidelines as mandatory rather than merely advisory. Although we conclude that the

district court was justified in treating the defendant’s prior offense as a “crime of violence,”



         *
          The Hon. Jon Phipps McCalla, United States District Judge for the Western District of Tennessee,
sitting by designation.
No. 04-4504
United States v. Butcher

circuit precedent requires that Butcher’s sentence be vacated and this matter remanded

for resentencing.


                    FACTUAL AND PROCEDURAL BACKGROUND


       This case arose from the defendant’s purchase of a Remington 12-gauge shotgun

from a K-Mart store in Conneaut, Ohio. When presented with the required form to be

submitted to the Bureau of Alcohol, Tobacco, and Firearms, Butcher indicated that he had

not previously been convicted of a felony and was not then subject to any felony indictment.

In fact, however, the defendant well knew that he had previously been convicted of

voluntary manslaughter in Ohio and that he was at that time also under indictment for

aggravated vehicular assault. Law enforcement authorities eventually arrested Butcher for

making a false statement in the acquisition of a firearm, and the defendant pleaded guilty

to that offense.


       The defendant’s sentencing hearing was held prior to the Supreme Court’s release

of its decision in United States v. Booker, 543 U.S. 220 (2005). As a result, the district

judge treated the United States Sentencing Guidelines as mandatory and increased

Butcher’s base offense level from 14 to 20 because of his prior conviction for involuntary

manslaughter, a “crime of violence.”         See   U.S. SENTENCING GUIDELINES MANUAL

§§ 2K2.1(a)(6) and (4) (2003). The court subsequently decreased the total offense level

by three based on Butcher’s timely acceptance of responsibility and sentenced the

defendant as a level 17, criminal history category IV offender to 37 months in prison, the

                                           -2-
No. 04-4504
United States v. Butcher

minimum sentence in the applicable range of 37-46 months. Butcher now appeals that

sentence.


                                      DISCUSSION


       The defendant correctly contends that the sentence imposed upon him must be

vacated and the matter remanded to the district court for resentencing because the district

judge treated the guideline sentencing range as mandatory rather than merely advisory in

nature. The government concedes that we have consistently held that sentencing under

such a misconception – however unintentional on the part of the district court – amounts

to plain error, see, e.g., United States v. Hudson, 405 F.3d 425, 445 (6th Cir. 2005),

especially where a defendant has been sentenced to the lowest possible sentence in an

applicable range. See United States v. Hollingsworth, 414 F.3d 621, 624 (6th Cir. 2005).


       Nevertheless, we must still examine Butcher’s appellate challenge to the application

of a specific guideline provision to his sentencing determination. Even after Booker, any

resentencing must include, among other considerations, a calculation of the appropriate

guidelines sentence. See 18 U.S.C. § 3553(a)(4).


       A conviction under 18 U.S.C. § 922(a)(6) for making a false statement in connection

with the acquisition of a firearm falls under § 2K2.1 of the United States Sentencing

Guidelines. See U.S. SENTENCING GUIDELINES MANUAL App. A (2003). As a convicted felon,

Butcher thus would ordinarily have been subject to sentencing pursuant to § 2K2.1(a)(6),


                                           -3-
No. 04-4504
United States v. Butcher

establishing a base offense level of 14. The district court, however, determined that the

defendant’s base offense level should be increased to 20 because “the defendant

committed any part of the instant offense subsequent to sustaining one felony conviction

of . . . a crime of violence. . . .”   U.S. SENTENCING GUIDELINES MANUAL   § 2K2.1(a)(4)(A)

(2003).


       The application notes to § 2K2.1 specify that the term “crime of violence” “has the

meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to

§ 4B1.2.”   U.S. SENTENCING GUIDELINES MANUAL       § 2K2.1, comment. (n.5) (2003). In turn,

§ 4B1.2(a) defines a “crime of violence” to mean:


       any offense under federal or state law, punishable by imprisonment for a
       term exceeding one year, that –
       (1) has as an element the use, attempted use, or threatened use of physical
       force against the person of another, or
       (2) is burglary of a dwelling, arson, or extortion, involves use of explosives,
       or otherwise involves conduct that presents a serious potential risk of
       physical injury to another.


Furthermore, application note 1 to the commentary on § 4B1.2 explicitly provides:


       “Crime of violence” includes murder, manslaughter, kidnapping, aggravated
       assault, forcible sex offenses, robbery, arson, extortion, extortionate
       extension of credit, and burglary of a dwelling. Other offenses are included
       as “crimes of violence” if (A) that offense has as an element the use,
       attempted use, or threatened use of physical force against the person of
       another, or (B) the conduct set forth (i.e., expressly charged) in the count of
       which the defendant was convicted involved the use of explosives (including
       any explosive material or destructive device) or, by its nature, presented a
       serious potential risk of physical injury to another.

                                              -4-
No. 04-4504
United States v. Butcher

(Emphasis added.)


       The guidelines, therefore, categorically define manslaughter, whether voluntary or

involuntary, as a “crime of violence” for guidelines purposes. See also United States v.

Sanders, 97 F.3d 856, 859-60 (6th Cir. 1996) (holding that, for purposes of 18 U.S.C.

§ 924(e), involuntary manslaughter in Ohio is a “violent felony,” the definition of which is

identical for all relevant purposes to the definition of “crime of violence” in § 4B1.2(a)).

Thus, in calculating the appropriate guidelines sentencing range, the district court properly

increased the defendant’s base offense level from 14 to 20 because Butcher’s prior

involuntary manslaughter conviction is considered, for guidelines purposes, a “crime of

violence.”


       Butcher nevertheless argues that the indictment in his involuntary manslaughter

case indicates that the facts underlying that earlier conviction – the accidental death of a

young boy caused by the defendant allowing his own underage son to operate a motor

vehicle – does not reflect upon the defendant’s own propensity or lack of propensity for

violence. Such an argument is appropriate for the resentencing hearing when the district

judge may, and indeed must, take into consideration not only the suggested guidelines

sentence, but also each of the other six factors set out in 18 U.S.C. § 3553(a). See, e.g.

United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006) (even a sentence within the

guidelines range is not reasonable “if there is no evidence that the district court followed




                                            -5-
No. 04-4504
United States v. Butcher

its statutory mandate to ‘impose a sentence sufficient, but not greater than necessary’ to

comply with the purposes of sentencing in section 3553(a)(2)”).


       The defendant also contends that the presentence report prepared in his case

improperly sought to justify categorization of Butcher’s involuntary manslaughter conviction

as a “crime of violence” by reference to language in § 4B1.2(a)(1) that describes crimes

involving the use of physical force against another person. Butcher maintains that he used

no “force” against the manslaughter victim and, even though his actions could be

considered to present a “serious potential risk of physical injury to another” under

§ 4B1.2(a)(2), the government did not object to the presentence report’s failure to invoke

that basis for sentence enhancement. Viewing §§ 4B1.2(a)(1) and (2) in isolation, an

argument could be made that the probation officer and the district court did not align the

defendant’s prior conviction with the proper guideline justification for sentence

enhancement. However, any confusion in this regard can be resolved on remand by

specific reference to subsection (a)(2) in the district court’s sentencing order.


                                      CONCLUSION


       The district court sentenced the defendant under the then-existing statutory provision

– since invalidated – that made the guidelines mandatory, not merely advisory. The

sentence imposed upon Butcher must, therefore, be VACATED and this case REMANDED

for resentencing.     After Booker, one component of a district court’s sentencing

determination continues to be consideration of the sentencing range calculated in

                                            -6-
No. 04-4504
United States v. Butcher

accordance with the applicable provisions of the guidelines.           In this case, such

consideration requires a recognition by the sentencing court of the fact that the Ohio

offense of manslaughter categorically constitutes a “crime of violence.” On remand, the

district court must give due consideration to the guidelines range but should also determine

what sentence is “reasonable” in light of the appropriate factors listed in 18 U.S.C.

§ 3553(a).


       Finally, the defendant’s “motion to take judicial notice of prior state conviction” is

DENIED as moot.




                                            -7-
