NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0092n.06
Filed: February 6, 2006
05-5077
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
JAMES A. STANBACK, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: NELSON, DAUGHTREY, and ROGERS, Circuit Judges.
PER CURIAM. The defendant, James Stanback, appeals the sentence imposed by
the district court following his entry of a guilty plea to the charge of being a felon in
possession of a firearm. Because the sentencing order was entered prior to the release
of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738
(2005), the district court imposed a 37-month term of incarceration in accordance with the
then-mandatory provisions of the United States Sentencing Guidelines. The defendant
contends that the district judge erred in not submitting to a jury the question of whether his
prior conviction involved a “crime of violence,” and in treating the suggested guideline
sentencing range as mandatory.
Even after Booker, a sentencing court need not submit issues regarding the fact or
nature of prior convictions to a jury. The district judge thus did not err in determining that
Stanback had committed a prior crime of violence. However, because the court treated the
sentencing guidelines as mandatory, the case must be remanded for resentencing under
Booker.
I. FACTUAL AND PROCEDURAL BACKGROUND
Following Stanback’s guilty plea, the district court determined that Stanback’s prior
felony conviction was for a “crime of violence” and thus assigned him a base offense level
of 20, rather than the base offense level of 14 otherwise provided by the sentencing
guidelines. See U.S. SENTENCING GUIDELINES MANUAL §§ 2K2.1(a)(4)(A), 2K2.1(a)(6). After
concluding that the defendant had a criminal history category of III and deserved a three-
level reduction for acceptance of responsibility, the district court ordered that Stanback be
sentenced in the range provided for level 17, criminal history category III – between 30 and
37 months.
Before imposing sentence, the district judge noted that the defendant had recently
been convicted of another offense, this one involving “simple assault, domestic violence.”
The court then indicated “because of this new conviction that a sentence at the upper end
of the range is appropriate . . . I’m going to commit you to the custody of the Bureau of
Prisons for a term of 37 months,” the maximum sentence in the applicable guideline range.
Stanback now appeals the propriety of that term of imprisonment.
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II. DISCUSSION
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court
confirmed that “[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490. See also Booker, 543 U.S. at ___, 125
S.Ct. at 756. Stanback now asserts that the district court violated this constitutional
principle by itself determining, without concession by the defendant or the intervention of
a jury, that one of Stanback’s prior felony convictions was for a “crime of violence.” We
recently held, however, that
. . . case law establish[es] that Apprendi does not require the nature of prior
convictions to be determined by a jury. . . . Moreover, there is no language
in Booker suggesting that the Supreme Court, as part of its remedial scheme
adopted in that case, intended to alter the exception to Apprendi allowing
district courts to consider the fact and nature of prior convictions without
submitting those issues to the jury.
United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (emphasis added).
Stanback argues that the efficacy of Barnett has been undermined by the United
States Supreme Court’s opinion in Shepard v. United States, 125 S.Ct. 1254 (2005). In
Shepard, the Court held that a sentencing court may not “look to police reports or complaint
applications to determine whether an earlier guilty plea necessarily admitted, and supported
a conviction for, generic burglary.” Id. at 1257. Instead, the Court reaffirmed that a
sentencer “determining the character of an admitted burglary is generally limited to
examining the statutory definition, charging document, written plea agreement, transcript
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of plea colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.” Id. Thus, Shepard did not outlaw judicial fact-finding in the context of prior
convictions, but rather merely limited the sources of information that a sentencing court can
consider.
Stanback’s prior conviction at issue in this appeal was for “aggravated assault,” an
offense defined statutorily in Tennessee as an intentional, knowing, or reckless assault that
“causes serious bodily injury to another,” or that involves the use or display of a deadly
weapon. See TENN. CODE ANN. §§ 39-13-102(a)(1) and (2). Because the district court could
determine, without reference to potentially biased opinions or conjecture, that such a
criminal act clearly constitutes a “crime of violence,” the court did not err in considering the
prior offense in the calculation of the appropriate base offense level. Stanback is not
entitled to resentencing on this basis.
The defendant is, however, entitled to a new sentencing hearing to determine the
appropriate sentence under the now non-mandatory sentencing guidelines, following the
amendment of the presentence report to reflect his subsequent conviction and its effect,
if any, on his criminal history calculation. See Barnett, 398 F.3d at 525-30.
III. CONCLUSION
For the reasons set out above, this case is REMANDED to the district court for
resentencing.
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