                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0062n.06

                                             No. 09-5017
                                                                                             FILED
                            UNITED STATES COURT OF APPEALS                               Jan 31, 2011
                                 FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,                                       ON APPEAL FROM THE
                                                                    UNITED STATES DISTRICT
v.                                                                  COURT FOR THE EASTERN
                                                                    DISTRICT OF TENNESSEE
SHAUN SANDERS,
                                                                                             OPINION
          Defendant-Appellant.


                                                              /

Before:          KENNEDY and MARTIN, Circuit Judges; MURPHY, District Judge.*

          CORNELIA G. KENNEDY, Circuit Judge. Defendant-Appellant Shaun Sanders pleaded

guilty to conspiracy to distribute cocaine and cocaine base. After determining that Sanders qualified

as a career offender under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1, the district

court sentenced him within the Guidelines to 169 months’ imprisonment. Sanders now challenges

the district court’s application of § 4B1.1 to his Guidelines calculation, alleging that use of his prior

convictions to enhance his Guidelines range violated the Supreme Court’s decisions in Apprendi v.

New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), as well as the

notice requirements of 21 U.S.C. § 851(a)(1). Because we find that each of these arguments lacks

merit, we affirm Sanders’s sentence.



          *
       The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 09-5017
United States v. Sanders

       On May 13, 2008, Sanders, along with twenty other co-defendants, was indicted in the United

States District Court for the Eastern District of Tennessee on the charge of conspiracy to distribute

and to possess with intent to distribute at least five kilograms of cocaine and at least fifty grams of

cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Indictment Count 1,

ECF No. 2.) Sanders entered a plea agreement with the Government, pursuant to which he pleaded

guilty on September 17, 2008 of the lesser-included offense of conspiracy to distribute cocaine and

cocaine base. (Plea Agreement, ECF No. 229; Rearraignment Tr., Sept. 17, 2008, ECF No. 460;

Sentencing Hr’g Tr. 2-3, Dec. 18, 2008, ECF No. 414 (accepting Sanders’s plea agreement).) At

Sanders’s sentencing hearing on December 18, 2008, the district court accepted the findings in his

Presentence Investigation Report (“PSR”), (Sentencing Hr’g Tr. 5, ECF No. 414), which classified

Sanders as a career criminal under U.S.S.G. § 4B1.1 based on his three prior convictions for felony

drug offenses: a conviction for possession of cocaine with intent to sell and two convictions for

felony possession of cocaine, all of which occurred in Tennessee in 2000, (PSR 9, 10-11). As a

result, Sanders’s offense level increased by twelve points, thereby increasing his Guidelines range

to 151 to 188 months’ imprisonment. (Id. at 9, 15; see also Sentencing Hr’g Tr. 5, ECF No. 414.)

The district court sentenced Sanders to a mid-range sentence of 169 months’ imprisonment.

(Sentencing Hr’g Tr. 23, ECF No. 414.) Sanders timely appealed.

       Sanders argues that the district court erroneously used his prior convictions to enhance his

Guidelines range under U.S.S.G. § 4B1.1 in violation of the rule, announced in Apprendi and

extended in Booker, that “[i]t is unconstitutional for a legislature to remove from the jury the

assessment of facts that increase the prescribed range of penalties to which a criminal defendant is

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No. 09-5017
United States v. Sanders

exposed.” Apprendi, 530 U.S. at 490 (internal quotation marks omitted). Sanders also contends that

the application of § 4B1.1 in his Guidelines calculation contravenes 21 U.S.C. § 851, which provides

that no person convicted of an offense under title 21 of the United States Code can be “sentenced

to increased punishment by reason of one or more prior convictions” unless, before trial or entry of

a guilty plea, the Government files an information with the court “stating in writing the previous

convictions to be relied upon.” 21 U.S.C. § 851(a)(1). Sanders did not raise these issues at

sentencing, even though the district court asked him for objections to both his PSR and sentence,

(see Sentencing Hr’g Tr. 5, 25-26); therefore, we review Sanders’s sentence for plain error. See

United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc); see also United States v.

Copeland, 321 F.3d 582, 601 (6th Cir. 2003) (“Where a defendant fails to make an Apprendi

objection, this court must review the claim for plain error.” (citing United States v. Strayhorn, 250

F.3d 462, 467 (6th Cir. 2001))). To meet this standard, Sanders must show that the district court

made an “error” that is “clear or obvious,” “affect[s his] substantial rights,” and “‘seriously affect[s]

the fairness, integrity or public reputation of judicial proceedings.’” Puckett v. United States, 129

S. Ct. 1423, 1429 (2009) (second alteration in original) (quoting United States v. Olano, 507 U.S.

725, 736 (1993)).

        Sanders’s claim that the district court’s application of the U.S.S.G. § 4B1.1 enhancement

runs afoul of the Supreme Court’s decisions in Apprendi and Booker is without merit. In Apprendi,

the Supreme Court specifically excepted prior convictions from the “facts” that the Constitution

requires be proven to a jury or admitted in a guilty plea: “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

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No. 09-5017
United States v. Sanders

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis

added); see also Booker, 543 U.S. at 244 (“Accordingly, we reaffirm our holding in Apprendi: Any

fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” (emphasis added)). In fact, the Supreme

Court has explicitly held that a defendant’s prior convictions may be used to increase his maximum

sentence without violating the Constitution—at least when, as here, the fact of those convictions are

uncontested. Almendarez-Torres v. United States, 523 U.S. 224, 239-48 (1998). This decision

remains valid precedent. See Apprendi, 530 U.S. at 489-90 (“Even though it is arguable that

Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today

should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity

and we need not revisit it for purposes of our decision today to treat the case as a narrow exception

to the general rule . . . .” (footnote omitted)); Nichols v. United States, 563 F.3d 240, 243 n.1 (6th

Cir. 2009) (noting that Almendarez-Torres remains good law despite the suggestion in Apprendi that

it was wrongly decided), cert. denied, 130 S. Ct. 277 (2009). Therefore, it was not error, much less

plain error, for the district court to rely on Sanders’s prior felony drug convictions when imposing

his sentence.

       Furthermore, even if prior convictions were “facts” that, under Apprendi, must be proven to

a jury or admitted in a guilty plea, their use at sentencing can violate the Constitution only if they

“increase[] the sentence that the defendant could have otherwise received.” Booker, 543 U.S. at 232.

In contrast, a judge may “exercise discretion—taking into consideration various factors relating both

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No. 09-5017
United States v. Sanders

to offense and offender—in imposing a judgment within the range prescribed by statute.” Apprendi,

530 U.S. at 481; see also Booker, 543 U.S. at 233 (“We have never doubted the authority of a judge

to exercise broad discretion in imposing a sentence within a statutory range.”). Thus, as the Supreme

Court determined in Booker, using judge-found facts to adjust a defendant’s sentence within a

prescribed statutory range, pursuant to advisory sentencing Guidelines, does not violate Apprendi.

Booker, 543 U.S. at 233, 259. Here, Sanders’s offense was subject to the twenty-year maximum

sentence proscribed for the substantive offense of conspiracy to distribute a controlled substance,

(see PSR 15), not the heightened, thirty-year maximum sentence that applies to that offense when

it is committed “after a prior conviction for a felony drug offense has become final.” 21 U.S.C.

§ 841(b)(1)(C).1 The district court’s application of § 4B1.1 to increase Sanders’s advisory

Guidelines range cannot give rise to an Apprendi claim, as it did not affect Sanders’s statutorily

authorized maximum sentence or otherwise result in the mandatory imposition of a higher sentence.

       Similarly, Sanders’s arguments based on 21 U.S.C. § 851 are unavailing. Though the

Government did not file an information listing Sanders’s prior felony drug convictions before

Sanders entered his guilty plea, it did not need to do so before the district court could apply the



       1
          During the rearraignment hearing at which Sanders pleaded guilty, the Government
incorrectly stated that, “because of prior drug felony conviction [sic] in [his] record[],” Sanders was
“subject to an enhanced sentence which would be up to 30 years of imprisonment.” (Rearraignment
Tr. 19-20, ECF No. 460). It seems that Sanders’s original PSR incorporated this misstatement,
which in turn inflated his Guidelines range. However, Sanders objected to this error; as a result, the
Probation Officer revised Sanders’s PSR to reflect the correct twenty-year maximum sentence and
amended his Guidelines calculation accordingly. (Appellant’s Br. 5-6.) In sentencing Sanders, the
district court relied on the corrected PSR, thereby subjecting Sanders to the twenty-year maximum
sentence.

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No. 09-5017
United States v. Sanders

career-offender Guidelines enhancement.          This Court has previously determined that “the

requirements of § 851(a)(1) apply only to statutory sentence enhancement, not sentence enhancement

under § 4B1.1 of the Sentencing Guidelines.” United States v. Mans, 999 F.2d 966, 969 (6th Cir.

1993). Because Sanders’s statutory maximum sentence was not increased by reason of his prior

conviction, there was no violation of § 851. “The government was therefore under no obligation to

inform the defendant of the potential applicability of Section 4B1.1 of the Sentencing Guidelines,

and its failure to provide such notice is not a basis for vacating the defendant’s sentence in this case.”

United States v. Wright, 43 F. App’x 848, 851 (6th Cir. 2002).

         For the foregoing reasons, we AFFIRM the sentence imposed on Sanders by the district

court.




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