NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0467n.06
Filed: August 5, 2008
No. 05-6811
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
LEE THEODORE SMITH, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
)
BEFORE: ROGERS and McKEAGUE, Circuit Judges, and ADAMS, District Judge.*
ADAMS, J. Lee Theodore Smith appeals from the district court’s imposition of a 96 month
sentence. We affirm.
I. STATEMENT OF FACTS
On May 13, 2003, Smith was indicted for conspiracy to manufacture methamphetamine in
violation of 21 U.S.C. § 846 and possession of equipment and chemicals which may be used to
manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6). Following a mistrial, Smith
was tried a second time and convicted on May 11, 2004. In calculating Smith’s guideline range, the
district court found that he had possessed a firearm during the commission of the offense and that
Smith’s conduct created a substantial risk of harm to a minor. The district court, therefore,
*
The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
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05-6811
concluded that Smith’s mandatory guideline range was 121 to 151 months. On November 17, 2004,
Smith was sentenced to 121 months by the district court. On August 8, 2005, this Court remanded
for resentencing pursuant to Booker.
Following remand, the district court calculated the now advisory guideline range to be 121
to 151 months. The court arrived at this range by using the same enhancements it had used under
Smith’s prior sentence. The court then varied downward from the guideline range using the factors
set forth in 18 U.S.C. § 3553 and sentenced Smith to 96 months incarceration. This appeal followed.
II. ANALYSIS
Smith raises one substantive issue on appeal. He argues that the trial court’s act of finding
facts to support the sentencing enhancements violated the Sixth Amendment. There is no merit in
Smith’s argument.
On appeal, Smith has not challenged the factual findings that support the enhancements
utilized by the district court. Accordingly, the Court does not review those factual findings.
However, even if Smith’s brief on appeal could be construed as challenging the factual bases for the
sentencing enhancements, those factual bases are amply supported by the record.
Smith instead contends that the act of judicial fact finding violated his Sixth Amendment
rights. Post-Booker, this Circuit has squarely rejected that argument.
In Rita, the Supreme Court laid to rest the claim that the sentencing court may not
rely on facts not found by a jury:
“This Court’s Sixth Amendment cases do not automatically forbid a sentencing court
to take account of factual matters not determined by a jury and to increase the
sentence in consequence. Nor do they prohibit the sentencing judge from taking
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05-6811
account of the Sentencing Commission’s factual findings or recommended sentences.
Rita, 127 S.Ct. at 2465-66.”
United States v. Pinkerton, 2008 WL 2224810, at *3 (6th Cir. May 29, 2008). “[T]his Court has
repeatedly held, ‘judicial fact-finding in sentencing proceedings using a preponderance of the
evidence standard post-Booker does not violate either Fifth Amendment due process rights, or the
Sixth Amendment right to trial by jury.”’ United States v. Renner, 2008 WL 2467976, at *2 (6th Cir.
June 19, 2008) (quoting United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006)); see also United
States v. Cook, 453 F.3d 775, 777 (6th Cir. 2006). In Renner, the Court rejected Smith’s Sixth
Amendment argument regarding the findings of facts used to support a firearm enhancement. This
Circuit has also specifically rejected Smith’s challenge to the substantial risk of harm to a minor
enhancement. See United States v. Edwards, 256 Fed.Appx. 791, 792 (6th Cir. 2007). Smith’s Sixth
Amendment rights, therefore, were not violated by the district court’s findings of fact in support of
the sentencing enhancements.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment.
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