NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0867n.06
Filed: October 24, 2005
No. 04-6181
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
RONALD MARTIN BAILEY, ) MEMORANDUM
) OPINION
Defendant-Appellant. )
BEFORE: DAUGHTREY, MOORE and McKEAGUE, Circuit Judges.
PER CURIAM. Appellant Ronald Martin Bailey was sentenced to a prison term of 35
months and a three-year period of supervised release after pleading guilty to the charge of
conspiracy to manufacture methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). On
appeal, he contends the district court erred in two ways: by enhancing his sentence based on facts
not admitted by him and not proved to a jury beyond a reasonable doubt, and by applying the United
States Sentencing Guidelines as mandatory, contrary to the Supreme Court’s ruling in United States
v. Booker, 125 S.Ct. 738 (2005). Finding that the district court appropriately imposed an alternative
sentence identical to the Guidelines sentence, we conclude that any Booker violation was harmless
error; and finding that the alternative sentence is reasonable, we affirm the judgment of sentence.
No. 04-6181
United States v. Bailey
I
In a four-count indictment, defendant Bailey was charged with conspiracy to manufacture
methamphetamine, attempting to manufacture methamphetamine, possession of chemicals for use
in manufacturing methamphetamine, and being a felon in possession of a firearm. Pursuant to a
plea agreement with the government, defendant pleaded guilty to the first count in exchange for
dismissal of the remaining counts. He expressly understood and agreed that the court could impose
any lawful term of imprisonment up to the statutory maximum penalty. The plea agreement did not
include any stipulation as to drug quantity or firearm possession.
Sentencing occurred on October 13, 2004. Applying the Sentencing Guidelines, the
presentence report proposed a sentencing range of 30 to 37 months’ imprisonment. This range was
based on a criminal history category of I and a total offense level of 19. In arriving at this adjusted
offense level of 19, the presentence investigator used the drug quantity of 5.64 grams of
pseudoephedrine (an ingredient of methamphetamine production) found in defendant’s camper at
the time of his arrest, yielding an offense level of 20. U.S.S.G. § 2D1.1(c)(10). The offense level
was further adjusted upward two points to 22 based on defendant’s possession of firearms in
connection with the conspiracy. U.S.S.G. § 2D1.1(b)(1). This adjustment was based (1) on the
discovery of three firearms at the time of defendant’s arrest, two in his camper and one in the yard
where the camper was parked; and (2) the investigative assessment that defendant had been trading
methamphetamine for firearms. The offense level was then adjusted downward three points to 19
based on defendant’s acceptance of responsibility. U.S.S.G. § 3E1.1(a) and (b).
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No. 04-6181
United States v. Bailey
Citing Blakely v. Washington, 542 U.S. 296 (2004), defendant objected to the proposed
offense level enhancements based on drug quantity and firearm possession. The district court
overruled the objections, holding, on the strength of United States v. Koch, 383 F.3d 436 (6th Cir.
2004) (en banc), that Blakely had no application to the federal Sentencing Guidelines. The district
court went on to sentence defendant to 35 months in prison, a sentence within the Guidelines range
and long enough, the court observed, to ensure defendant would have the opportunity to participate
in the substance abuse treatment program offered by the Bureau of Prisons. Further, anticipating
that the reasoning of Blakely could ultimately be applied by the Supreme Court to invalidate the
Sentencing Guidelines in some manner, the district court imposed an alternative sentence, stating
“that if the Court were to exercise its discretion in sentencing the defendant anywhere within the
statutory range, the Court would set his sentence at the exact same amount that I’ve just sentenced,
the 35 months.” J.A. 43. On appeal, defendant renews his Blakely challenge, as fortified by the
Supreme Court’s ruling in Booker.
II
In Booker, the Supreme Court overruled Koch and ruled that the Sixth Amendment requires
that facts “necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” 125 S.Ct. at 756. Rather than invalidating the Sentencing Guidelines
altogether, however, Booker merely severed 18 U.S.C. § 3553(b), rendering most Guidelines
enhancements advisory. Id. at 756-57; United States v. Christopher, 415 F.3d 590, 593 (6th Cir.
2005). To the extent, therefore, that the district court applied such enhancements and imposed
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United States v. Bailey
sentence under the view that the Guidelines were mandatory, it erred. Christopher, 415 F.3d at 593.
Yet, “when a district court imposes alternative, identical sentences, one under a regime in
which Guidelines enhancements are not mandatory, the harmlessness of any Booker error is
established.” Id. Here, as in Christopher, the district court’s alternative sentence makes it clear that
if the court’s discretion were not restricted by the Guidelines, it would impose the same 35-month
prison sentence. Under these circumstances, remand for resentencing without mandatory Guidelines
is unnecessary. Id. at 594. Instead, we review defendant’s sentence only for “reasonableness” under
Booker. Id.
Our review for reasonableness is not confined to the length of the sentence imposed. United
States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). A sentence may be held to be “unreasonable
when the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’
the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an
appropriate sentence without such required consideration.” Id.
Here, the district court, in imposing the alternative sentence, clearly considered the
applicable Guidelines range. Moreover, the district court appears to have properly applied the
Guidelines in arriving at the appropriate range. While defendant has challenged the district court’s
authority to make fact-findings per Booker, he has not challenged the correctness of the findings
made. That is, defendant did not dispute the factual bases for either the drug quantity enhancement
or the firearm possession enhancement at sentencing, nor has he done so on appeal.1
1
Regarding firearm possession, defendant’s counsel denied, at sentencing, that any firearm
found at the scene of arrest belonged to defendant, but he acknowledged that the circumstances
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No. 04-6181
United States v. Bailey
We are also satisfied that the district court adequately considered the § 3553(a) sentencing
factors. The court did not explicitly consider each and every one of the seven factors, but there is
no requirement that a sentencing court engage in a “ritualistic incantation” of the § 3553(a) factors.
United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005). The district judge’s remarks at
sentencing indicate that he considered the history and characteristics of the defendant, § 3553(a)(1);
the seriousness of the offense and the need for the sentence to reflect the seriousness of the offense,
§ 3553(a)(1) and (a)(2)(A); the need for medical care or other correctional treatment (i.e., substance
abuse treatment), § 3553(a)(2)(D); as well as the sentencing range prescribed by the Sentencing
Guidelines, § 3553(a)(4). Defendant has not identified any factors the district court should have
considered that would have made a difference in the sentence imposed.
Concluding that the district court appropriately considered the Guidelines range and other
sentencing factors in imposing the alternative sentence, and considering that the sentence imposed
is well below the statutory maximum penalty, we hold that the alternative sentence is reasonable.2
surrounding the firearm’s discovery justified the two-level enhancement.
2
There may be a question regarding the statutory maximum penalty, but it is ultimately of
little consequence.
According to the presentence report relied on by the district court, if defendant were found
to have been previously convicted of a felony drug offense, and the current offense were found to
have involved 5.64 grams of pseudoephedrine (i.e., the methamphetamine equivalent of 56.4
kilograms of marijuana), the statutory maximum would be 30 years’ imprisonment. 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(C). Yet, the status of any prior conviction appears to have been left
undetermined.
The government had given notice of its intent to seek enhancement of defendant’s sentence
based on his 1983 conviction for sale of marijuana in Mississippi. Defendant filed a written
objection to any enhancement based on this prior conviction, arguing that it had been expunged by
order of the Lowndes County Circuit Court in Mississippi in 1988. The presentence investigator did
not address the objection in his addendum to the presentence report. At sentencing, the government
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No. 04-6181
United States v. Bailey
III
Accordingly, the court having determined that the district court’s Booker error was harmless
and that the sentence imposed is reasonable, the judgment of the district court is hereby
AFFIRMED.
did not argue for enhancement based on the prior conviction, and defendant did not expressly renew
his objection. Hence, the district court made no finding regarding a prior felony drug conviction.
In the absence of a prior felony drug conviction, and assuming a drug quantity of 5.64 grams
of pseudoephedrine, the statutory maximum would be 20 years’ imprisonment. Id. In the absence
of a prior conviction and assuming a drug quantity of less than 5 grams of pseudoephedrine (even
though defendant did not challenge the correctness of the district court’s drug quantity finding), the
statutory maximum would be 5 years’ imprisonment. 21 U.S.C. § 841(b)(1)(D).
Thus, in any case, it is plain to see that defendant’s sentence of 35 months is well below the
statutory maximum penalty, whether deemed to be 20 years or 5 years.
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