United States v. Goff , 129 F. App'x 947 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0332n.06
Filed: April 28, 2005
No. 04-5993
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
NICHOLAS DEVON GOFF, )
) OPINION
Defendant-Appellant. )
_______________________________________)
Before: NELSON and MOORE, Circuit Judges, and RESTANI,* Judge.
KAREN NELSON MOORE, Circuit Judge. The facts of this case are not in dispute. See
Appellee Br. at 2. Defendant-Appellant Nicholas Devon Goff pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). The probation office recommended that
Goff’s sentence be computed using Base Offense Level 20, as the probation office concluded that
Goff’s prior robbery conviction qualified as a crime of violence for purposes of U.S. SENTENCING
GUIDELINES MANUAL (“U.S.S.G.”) § 2K2.1(a)(4)(A). Goff objected to this recommendation,
arguing that under Blakely v. Washington, 124 S. Ct. 2531 (2004), whether his prior robbery
conviction qualified as a crime of violence was a fact that must be either admitted by him or proved
*
The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
to a jury beyond a reasonable doubt.1 Because the jury was not asked to decide whether his robbery
conviction qualified as a crime of violence, Goff contended that his sentence should be calculated
using Base Offense Level 14, pursuant to U.S.S.G. § 2K2.1(a)(6), rather than Base Offense Level
20.
The district court denied Goff’s objection, stating that it did not believe Blakely applied to
the U.S. Sentencing Guidelines (“Guidelines”):
All right, let me state for the record — I’ve done this in every other case, so
I need to do it in this case as well. It’s this court’s judgment that the federal
sentencing guidelines are still applicable. Until a definitive opinion from the Sixth
Circuit Court of Appeals or the U.S. Supreme Court tells me otherwise, I plan to
continue following the guidelines.
It is my prediction that the Supreme Court will distinguish the federal
sentencing guidelines from the Washington state scheme found improper in Blakely
or, alternatively, that one of the Supreme Court justices will change his or her mind
in order to uphold the federal sentencing guidelines. If I’m right on that, then none
of mine will have to be resentenced. If I’m wrong on that, all of them will have to
be resentenced. And I guess we’ll just wait and see what the outcome is.
Joint Appendix (“J.A.”) at 28 (Sentencing Hr’g) (emphasis added). Goff appealed. Following
submission of the parties’ briefs, the U.S. Supreme Court issued its decisions in United States v.
Booker, 125 S. Ct. 738 (2005), and Shepard v. United States, 125 S. Ct. 1254 (2005). We requested
letter briefs on the applicability of those two cases to Goff’s appeal.
As an initial matter, we note that we remain bound by Almendarez-Torres v. United States,
523 U.S. 224 (1998), unless and until the Supreme Court decides to overrule that decision. See
United States v. Barnett, 398 F.3d 516, 524 (6th Cir. 2005) (“Existing case law establishes that
Apprendi does not require the nature or character of prior convictions to be determined by a jury.”).
1
Conceding that this position is probably inconsistent with Almendarez-Torres v. United
States, 523 U.S. 224 (1998), Goff argued that Almendarez-Torres “will be revisited.” Joint
Appendix (“J.A.”) at 30 (Sentencing Hr’g).
2
As Goff does not contend that Shepard actually overrules the prior-conviction holdings of Barnett
and Almendarez-Torres, Goff Letter Br. at 4, Goff’s contention that his sentence was calculated
using the wrong Base Offense Level must fail in this court.
Goff also contends in his letter brief that, under Barnett, the district court plainly erred by
applying the Guidelines as if they were mandatory. We agree. See Barnett, 398 F.3d at 525-31.
The record contains no “clear and specific evidence” that the district court would have imposed an
equal or greater sentence under an advisory Guidelines regime. United States v. Webb, --- F.3d ---,
2005 WL 763367, at *7 (6th Cir. Apr. 6, 2005). Indeed, the district judge’s comments suggest that
he was merely sentencing Goff in the middle of the applicable Guidelines range, and he might have
sentenced differently were he faced with a different set of sentencing options. See R. 37 at 8 (“So
I’m going to arrive at a sentence somewhere near the middle of the range.”) (Sentencing Hr’g).
Accordingly, we VACATE Goff’s sentence and REMAND the case to the district court for further
proceedings not inconsistent with this opinion.
3