United States v. Bondurant

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0595n.06
Filed: July 13, 2005
No. 04-5935
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. On Appeal from the
United States District
SHAUN LYNN BONDURANT, Court for the Western
District of Tennessee
Defendant-Appellant.
__________________________________/
BEFORE: BOGGS, Chief Judge, and GIBBONS, Circuit Judge; QUIST, District Judge.*
PER CURIAM. Defendant, Shaun Lynn Bondurant, pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). The Presentence Investigation Report
recommended a total offense level of 27, with a sentencing range of 130 to 162 months. The offense
level included a four-level enhancement because Bondurant possessed 8 to 24 firearms, see U.S.S.G.
§ 2K2.1(b)(1)(B), plus a two-level enhancement because stolen firearms were possessed, see
U.S.S.G. § 2K2.1(b)(4), plus a four-level enhancement because the firearms were possessed in
connection with another felony offense, namely, conspiracy to manufacture methamphetamine, see
U.S.S.G. § 2K2.1(b)(5). Bondurant’s offense level was reduced by three points for acceptance of
responsibility. See U.S.S.G. § 3E1.1. Bondurant filed no objection to any factual statement in the
*
The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by
designation.
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United States v. Bondurant
Presentence Investigation Report. He objected solely to the fact that none of the enhancements were
submitted to the jury to be determined beyond a reasonable doubt.
The statutory maximum for the single charge to which Bondurant pled guilty was 120
months. Therefore, Bondurant’s sentence could not be “stacked” to run consecutively to meet the
bottom of the Guideline range. The district court held that Blakely v. Washington, ___ U.S. ___, 124
S. Ct. 2531 (2004), was not applicable to the United States Sentencing Guidelines and sentenced
Bondurant to 103 months.
Bondurant filed a timely appeal. The only issue presented for review is whether Bondurant’s
Sixth Amendment rights were violated in light of Blakely.
Bondurant’s rights under the Sixth Amendment were not violated. Blakely and the
subsequent case of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), make clear that,
if the United States Sentencing Guidelines are mandatory rules that must be applied by district
courts, “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 must be admitted by
a defendant or proved to a jury beyond a reasonable doubt” or else the Sixth Amendment is violated.
Booker, ___ U.S. ___, 125 S.Ct. at 756.
In this case, no Sixth Amendment violation occurred because Bondurant admitted the facts
that gave rise to the enhancements. Under this court’s precedent, the district court “is allowed to
accept as true all factual allegations in a presentence report to which the defendant does not object.”
United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001); see also, United States v. Williams, __
F.3d __, 2005 WL 1384355, at *2 (6th Cir. June 9, 2005); United States v. Stafford, 258 F.3d 465,
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United States v. Bondurant
475-76 (6th Cir. 2001). Further, the failure of the Bondurant to object to the factual allegations in
a presentence report waives any future objections. United States v. Ward, 190 F.3d 483, 492 (6th
Cir. 1999).1 Thus, the district court could properly apply the enhancements because the facts
supporting these enhancements were set forth in the presentence report2 and Bondurant did not
contest the validity of these factual allegations.
However, it is plain error in this circuit to sentence a person under the presumption that the
Guidelines were mandatory. United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). The
district court can exercise its discretion to sentence Bondurant above or below the now advisory
Guidelines. The record in this case does not indicate how the district court would have sentenced
Bondurant had the court known that the Guidelines were advisory.
Therefore, we affirm the district court’s application of the Guidelines, but we vacate
Bondurant’s sentence and remand the case for resentencing under Booker.
1
Bondurant argues that he “objected to the factual allegations of offense conduct promulgated by the probation
office,” (Appellant’s Br. at 7), but a review of his objections indicates that he did not. (J.A. 9.) Rather, his objections
rested upon a Blakely argument and not that the facts contained in the presentence report were inaccurate. While the
distinction we draw between an objection to the facts as set forth in the presentence report and the process by which the
facts were found is a fine one, it is justified here by the defendant’s failure to reference the presentence report’s factual
determinations in his objections.
2
With respect to the number of guns Bondurant possessed, see J.A. 27-29. With respect to the fact that the guns
were stolen, see J.A. 27-29, 31. With respect to the fact that Bondurant possessed a gun in connection with a felony
(conspiracy to manufacture methamphetamine), see J.A. 30-31.