United States v. Terry

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0331n.06
Filed: April 28, 2005
No. 04-5980
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
CHRISTOPHER SHAWN TERRY, THE WESTERN DISTRICT OF
TENNESSEE
Defendant-Appellant.
/
Before: MARTIN, COOK and LAY,* Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Christopher Terry challenges his sentence in light
of United States v. Booker, 125 S. Ct. 738 (2005). For the following reasons, we VACATE Terry’s
sentence and REMAND for resentencing.
On May 10, 2004, the United States filed an information charging Terry with being a felon
in possession of a firearm, a violation of 18 U.S.C. § 922(g). The previous felony convictions listed
by the information were burglary of a building, theft of property valued more than $1,000, and the
sale of cocaine, a Schedule II controlled substance. That same day, Terry entered a guilty plea on
the information.
*
The Honorable Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
No. 04-5980
United States of America v. Terry
Page 2
The Federal Sentencing Guidelines dictated a base offense level of fourteen if the defendant
“was a prohibited person at the time [he] committed the instant offense,” U.S.S.G. § 2K2.1(a)(6)(A),
and twenty if “the defendant committed any part of the instant offense subsequent to sustaining one
felony conviction of either a crime of violence or a controlled substance offense,” U.S.S.G. §
2K2.1(a)(4)(A). The district court set Terry’s base level at twenty and granted a three-level
departure for acceptance of responsibility. See U.S.S.G. § 3E1.1. Terry’s prior criminal history
resulted in an assessment of ten criminal history points and the district court added two points,
pursuant to U.S.S.G. § 4A1.1(d), upon finding that Terry committed the instant offense while on
probation. This resulted in twelve criminal history points and a criminal history category of V, with
a corresponding sentencing range of forty-six to fifty-seven months. In sentencing Terry, the district
court stated:
I have a reason for the sentence that I arrive at; and in your case your criminal
history score places you at the top of criminal history category V. That would justify
a sentence at the upper end of your range. In addition, you had two firearms that
didn’t result in any increase in your range. Two gets punished the same way as one.
I suppose that factor would justify a sentence toward the upper end. So, Mr. Terry
given your history, the nature of your prior convictions, the fact that you had twelve
points, criminal history, I’m going to commit you to the custody of the Bureau of
Prisons for a term of 54 months.
Terry now appeals, seeking resentencing pursuant to Booker.
Terry’s first claim is that the district court violated his Sixth Amendment rights when it
calculated a base offense level of twenty based on a prior conviction for either a crime of violence
or a controlled substance offense. In Booker, the Supreme Court reaffirmed its holding in Apprendi
v. New Jersey, 530 U.S. 466 (2000) that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts established by a
No. 04-5980
United States of America v. Terry
Page 3
plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, 125 S. Ct. at 756. The fact of a prior conviction is thus specifically
excepted from the reasoning behind the Supreme Court’s recent Sixth Amendment jurisprudence
and the prior conviction exception remains good law unless and until the Supreme Court holds
otherwise. In this case, the base level of fourteen was increased to twenty (and decreased to
seventeen based upon acceptance of responsibility) solely on the fact of a prior conviction and
therefore there is no Sixth Amendment violation.
Terry’s final claim is that the district court committed error by treating the Federal
Sentencing Guidelines as mandatory and sentencing him accordingly. The sentencing transcript in
this case is quite similar to that in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), where this
Court remanded for resentencing. Furthermore, at oral argument the United States conceded that
remand was appropriate in this case. We therefore VACATE Terry’s sentence and REMAND for
resentencing.