RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0295p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 03-6001
v.
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LASTER AMIKER, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20446—Jon Phipps McCalla, District Judge.
Submitted: April 18, 2005
Decided and Filed: July 11, 2005
Before: BOGGS, Chief Judge; RYAN and ROGERS, Circuit Judges.
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COUNSEL
ON BRIEF: J. Charles Wilson, Mobile, Alabama, for Appellant. Scott F. Leary, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
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OPINION
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RYAN, Circuit Judge. This is a so-called Booker appeal, see United States v. Booker, 125
S. Ct. 738 (2005), but one with an unusual twist. We conclude that we must vacate the sentence and
remand for resentencing.
The defendant, Laster Amiker, pleaded guilty to Attempting to Possess with Intent to
Distribute 1000 tablets of Ecstacy, in violation of 21 U.S.C. § 846. Pursuant to the United States
Sentencing Guidelines, the facts admitted by Amiker equate, at most, to an offense level of 32,
which in Amiker’s Criminal History Category of I, provides a sentence range of 121 to 151 months’
imprisonment. At sentencing, the district court reduced Amiker’s offense level for his acceptance
of responsibility, U.S.S.G. § 3E1.1, but applied enhancements for possession of a firearm, U.S.S.G.
§ 2D1.1(b), and acting as an organizer or leader of criminal activity, U.S.S.G. § 3B1.1(a). This left
Amiker with an offense level of 35, and a corresponding sentence range of 168 to 210 months’
imprisonment. The district court sentenced Amiker to 168 months’ imprisonment. Because this
sentence is greater than the maximum of 151 months allowed by the facts to which Amiker admitted,
and because the lengthier sentence was supported by facts that were not found by a jury, the district
court’s sentencing determinations violated the Sixth Amendment. Booker, 125 S. Ct. 738. Although
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No. 03-6001 United States v. Amiker Page 2
Amiker failed to raise a Sixth Amendment objection below, the error was plain; it affected Amiker’s
substantial rights; and it seriously affects the fairness, integrity or public reputation of judicial
proceedings. See United States v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005). Therefore, Amiker is
entitled to resentencing.
This court’s holding in United States v. Bradley, 400 F.3d 459 (6th Cir. 2005), does not alter
our conclusion. First and foremost, the court in Bradley enforced a provision in the plea agreement
in which the defendant waived his right to appeal. Thus, Bradley is inapplicable here; Amiker did
not waive his right to appeal. But the court in Bradley also suggested that a defendant, by explicitly
agreeing to be sentenced under the Guidelines, waives any right to Booker-resentencing. If we were
to construe this as an alternative holding in Bradley, Amiker, who also explicitly agreed to be
sentenced under the Guidelines, may have waived his right to resentencing. But we think this
language in Bradley is best interpreted as merely additional rationale serving only to buttress the
court’s decision that the defendant had waived his right to appeal.
The Supreme Court has said that where a defendant pleads guilty, the government “‘is free
to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts
or consents to judicial factfinding.’” Booker, 125 S. Ct. at 774 (Stevens, J., concurring in part and
dissenting in part) (quoting Blakely v. Washington, 124 S. Ct. 2531, 2541 (2004)). The plain
meaning of this language, and the equally plain language of Booker and Blakely, indicate that
consent to judicial factfinding cannot be found in an ordinary plea agreement. At the time of
Amiker’s plea agreement and sentencing, all plea agreements required, either explicitly or implicitly,
that a defendant agree to sentencing under the Guidelines. Where this requirement is spelled out,
we see no reason to imply consent to judicial factfinding. That Amiker, in his plea agreement,
agreed to be sentenced pursuant to the Sentencing Guidelines, does not preclude him from raising
the Booker error on appeal.
Another panel of this court, again in dicta, appears to suggest that Bradley stands for the
more narrow proposition that a defendant who agreed to be sentenced under the mandatory
Guidelines, is not entitled to resentencing under the post-Booker advisory Guidelines. See United
States v. Gilliam, 2005 WL 820603, at *5 (6th Cir. Apr. 8, 2005) (unpublished disposition). That
is, Bradley could be read to preclude Booker-resentencing only in the absence of a Sixth
Amendment violation. This appears problematic because such a rule could survive only if
Booker Sixth Amendment error could be meaningfully distinguished from the erroneous mandatory
application of the now advisory Guidelines. Nevertheless, because this rule would not apply to
Amiker, his Sixth Amendment right having been abridged, we do not attempt to make such a
distinction. And again, as we stated above and according to our reading of Bradley, where a plea
agreement does not include an appeal waiver, an explicit agreement to be sentenced under the
Guidelines carries no independent significance.
For the aforementioned reasons, we VACATE Amiker’s sentence and REMAND his case
to the district court for resentencing.