NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0513n.06
Filed: June 17, 2005
No. 02-6033
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 Eastern
MARK AKERS, ) District of Kentucky
)
Defendant-Appellant. )
Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; and QUIST, District
Judge.*
PER CURIAM. Mark Akers pled guilty to 1) conspiracy to distribute controlled
substances, in violation of 21 U.S.C. § 846, and 2) employment of a person under age 18 to possess
with intent to distribute and to distribute controlled substances, in violation of 21 U.S.C. § 861(a)(1).
The district court sentenced Akers to 63 months of imprisonment on each count, to be served
concurrently. On appeal, Akers argues that his sentence should be vacated in light of United States
v. Booker, 125 S. Ct. 738(2005), and that this case should be remanded for resentencing. For the
reasons stated below, we agree.
I
*
The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 02-6033
United States v. Akers
Investigation by the Kentucky State Police, consisting of surveillance and informant
infiltration, determined that between April 7, 2000, and May 3, 2001, Akers, along with
co-defendants Lorenzo Huffman and Terry Raines were involved in a conspiracy to possess and
distribute contraband drugs.
On November 29, 2001, a federal grand jury returned a nineteen-count indictment against
Akers and co-defendants Huffman and Raines. Akers entered a plea of guilty to Count 1 (conspiracy
to distribute controlled substances) and Count 8 (employment of a person under age 18 to possess
with intent to distribute and to distribute controlled substances). The government voluntarily
dismissed the remaining counts against Akers. The plea agreement specified a base offense level
of 26 under the Sentencing Guidelines, and specified that Akers would receive a three-level
reduction in offense level, pursuant to U.S.S.G. §3E1.1(a), for accepting responsibility for his
crimes. The plea agreement otherwise provided that there was no agreement about the sentence the
defendant would receive. Akers waived the right to appeal the guilty plea and conviction, as well
as the right to any collateral attack on the guilty plea and conviction. He did not, however, waive
right to appeal his sentence. Item 15 of the agreement provided that:
The Defendant and the Defendant’s attorney acknowledge that the Defendant understands
this Agreement, that the Defendant’s attorney has fully explained this agreement to the
Defendant, and that the Defendant’s entry into this agreement is voluntary.
It is undisputed that Akers entered into the plea agreement knowingly and voluntarily.
Based on a criminal history level of II and an offense level of 23, the Guidelines prescribe
a sentencing range of 51-63 months. The court stated that “[w]hile I would like to sentence
everyone towards the low end of the Guideline range, in your case, I don’t think I can do that
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No. 02-6033
United States v. Akers
because of the number of people . . . involved . . . . [and] the amount of drugs.” The court sentenced
Akers to 63 months on each of Counts 1 and 8 to be served concurrently, in conformity with the plea
agreement and the Sentencing Guidelines.
Akers’s counsel initially filed a brief stating that there were no non-frivolous issues to appeal
and requesting leave to withdraw. Subsequently, this court requested a letter brief addressing the
validity of Akers’s sentence in light of the Supreme Court’s recent decision in United States v.
Booker, 125 S. Ct. 738 (2005). Akers’s counsel then requested a remand for resentencing.
II
Akers’s appeal does not attack the merits of his conviction. Thus, the validity of his pre-
Booker sentencing is the only issue before this court. The government filed a letter brief opposing
remand, but its main argument was that remand had not been requested by Akers. After Akers’s
counsel filed his letter brief requesting remand for resentencing, the government’s argument is
obviously no longer valid. Akers is entitled to plain-error review of his claim that he was sentenced
erroneously by the district court. Booker, 125 S. Ct. at 769. Under United States v. Barnett, 398
F.3d 516 (6th Cir. 2005), he is plainly entitled to such a remand.
III
For the foregoing reasons, we VACATE Akers’s sentence and REMAND for resentencing
in light of United States v. Booker, 125 S. Ct. 738 (2005).
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