United States v. Morris

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0353n.06
Filed: May 17, 2006
No. 04-5604
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
MELINDA MORRIS, A.K.A. MELINDA ) EASTERN DISTRICT OF KENTUCKY
MARTIN, )
)
Defendant-Appellant. )
Before: SILER and ROGERS, Circuit Judges; JORDAN, District Judge.*
ROGERS, Circuit Judge. Melinda Morris appeals her sentence for conspiracy to
manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846. The government
concedes that Morris is entitled to resentencing under United States v. Booker, 543 U.S. 220 (2005),
because the district court treated the Sentencing Guidelines range as mandatory rather than advisory.
Accordingly, we vacate her sentence and remand for resentencing consistent with Booker.
Morris’s additional argument—that the two-level enhancement to her sentence pursuant to
U.S.S.G. § 2D1.1(b)(1) was clearly erroneous because the presence of a firearm was not proven by
*
The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 04-5604
United States v. Morris
a preponderance of the evidence—is without merit. Based upon the Presentence Investigation
Report (PSR), the district court found that Morris had admitted to possessing a firearm on May 21,
2001, when she pleaded guilty to the state-law offense of trafficking in a controlled substance “while
being in possession of a .38-caliber handgun.” Morris argues that the possession of a firearm was
not an element of her state conviction, but she provides no evidence to refute the findings of the PSR
and district court. A defendant cannot show that a PSR is inaccurate simply by denying its truth,
but must show “some evidence beyond a bare denial that calls the reliability or correctness of the
alleged facts into question.” United States v. Lang, 333 F.3d 678, 681-82 (6th Cir. 2003).
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