United States v. Clements

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0538n.06

Filed: June 22, 2005

No. 04-5414

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

CHRISTOPHER CLEMENTS )

)

Defendant-Appellant. )

BEFORE: DAUGHTREY and CLAY, Circuit Judges, and GRAHAM,1 District

Judge.

GRAHAM, District Judge. Defendant-Appellant Christopher

Clements was indicted on January 16, 2003, in the Western District

of Tennessee for one count of conspiracy to manufacture

methamphetamine and one count of attempt to manufacture

methamphetamine in violation of 21 U.S.C. § 846, and one count of

aiding and abetting the possession of equipment, chemicals,

products and materials used to manufacture methamphetamine in

violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2. Defendant

was arrested on January 29, 2003. Defendant was arraigned on

February 5, 2003, and an order of detention pending trial was

entered. On November 18, 2003, defendant entered a plea of guilty

to the conspiracy charge, Count 1 of the indictment.

During the preparation of the presentence report, defendant

objected to the probation officer’s determination of the quantity

1

The Honorable James L. Graham, United States District Judge for the

Southern District of Ohio, sitting by designation.

of drugs used as relevant conduct to establish the defendant’s

offense level. In a sentencing memorandum filed on March 17, 2004,

the defendant withdrew his objection to the amount of drugs

utilized to calculate his base offense level. At the sentencing

hearing held on March 18, 2004, defense counsel reaffirmed that the

objection to the calculation of the quantity of drugs being used to

determine the base offense level was being withdrawn. Accepting

the probation officer’s findings in the presentence report, the

district court determined that the defendant’s relevant conduct in

the conspiracy was at least five hundred grams but not more than

1.5 kilograms of methamphetamine, yielding a base offense level 32.

Defendant made objections to the probation officer’s

conclusions that two levels should be added for obstruction of

justice under § 3C1.1 of the United States Sentencing Guidelines

(“U.S.S.G.”), and that defendant was not entitled to a reduction

for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The

court granted defendant’s objection to the enhancement for

obstruction of justice.

The probation officer’s conclusion that defendant was not

entitled to a reduction for acceptance of responsibility was based

on information that on February 24, 2003, subsequent to his

indictment and arrest for the offense in this case, defendant was

involved in the transmission of a recipe for manufacturing

narcotics. A recipe for the manufacture of LSD was found in the

apartment of Scott Pecukonis. The letter containing the recipe was

found with an envelope which indicated that it had been mailed by

the defendant from the West Tennessee Detention Facility, Mason,

Tennessee, on February 24, 2003. Defendant’s wife, Tonya Clements,

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confirmed that defendant had sent the letter. The probation

officer also relied on information that on March 19, 2003,

defendant was involved in a scheme to smuggle marijuana into the

detention facility. The probation officer received a summary of

phone calls pertaining to the scheme, and defendant’s wife admitted

that defendant had asked her to smuggle marijuana to him.

At the sentencing hearing, defense counsel stated that

defendant did not dispute the above information. He also conceded

that the defendant’s actions indicated that defendant had not

accepted responsibility at that point, and that his actions were

contrary to a finding of acceptance of responsibility. However,

counsel noted that an entire year had passed since these incidents,

during which the defendant had not engaged in any similar conduct.

Counsel further argued that the defendant had admitted his

responsibility for the offense of conviction when he pleaded

guilty, and that he had done everything he could to cooperate with

the government. The government argued that defendant’s behavior

was inconsistent with acceptance of responsibility, and further

noted that defendant’s lack of involvement in any further drug

activity could be explained by the fact that after these incidents,

defendant was transferred to a more secure federal facility.

The district court agreed with the government’s position and

concluded that defendant was not entitled to a reduction for

acceptance of responsibility in light of his involvement with drug

activity on two occasions following his arrest. Defendant was

sentenced to a term of imprisonment of one hundred and thirty-five

months. Defendant now pursues the instant appeal.

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Acceptance of Responsibility

In his first assignment of error, defendant argues that the

district court erred in not granting him a three-level reduction

for acceptance of responsibility under U.S.S.G. § 3E1.1. We first

note that during the pendency of this appeal, the United States

Supreme Court rendered a decision in United States v. Booker, 543

U.S. , 125 S.Ct. 738 (2005), holding that the Sentencing

Guidelines are no longer mandatory. However, under 18 U.S.C. §

3553(a)(4)(A), the sentencing range calculated under the Sentencing

Guidelines is still a factor which must be considered by the

district court in imposing sentence. Therefore, whether the

district court correctly declined to grant a reduction for

acceptance of responsibility under the Guidelines is a matter we

must address as part of this court’s review of the sentence for

reasonableness as required under Booker.

The determination of the sentencing judge on the issue of

acceptance of responsibility “is entitled to great deference on

review.” U.S.S.G. § 3E1.1, app. note 5. While the district

court’s factual findings for purposes of sentencing under the

Guidelines are reviewed for clear error, a deferential standard of

review is applied to the district court’s application of the

guidelines to the facts. United States v. Webb, 335 F.3d 534, 536-

38 (6th Cir. 2003)(noting that the de novo review standard for the

application of the acceptance of responsibility adjustment to

uncontested facts used in United States v. Jeter, 191 F.3d 637, 638

(6th Cir. 1999) was no longer valid in light of Buford v. United

States, 532 U.S. 59 (2001)).

Section 3E1.1(a) of the Guidelines provides that a defendant’s

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offense level should be decreased by two levels if he “clearly

demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a). The defendant has the burden of proving by a

preponderance of the evidence that he merits a reduction for

acceptance of responsibility. United States v. Hughes, 369 F.3d

941, 945 (6th Cir. 2004); United States v. Benjamin, 138 F.3d 1069,

1075 (6th Cir. 1998). Factors which the court may consider in

determining whether a defendant is entitled to a reduction under

that section include: whether the defendant truthfully admitted the

conduct comprising the offenses of conviction, and truthfully

admitted, or did not falsely deny any additional relevant conduct

for which the defendant is accountable; the voluntary termination

or withdrawal of the defendant from criminal conduct or

associations; and the timeliness of the defendant’s conduct in

manifesting the acceptance of responsibility. U.S.S.G. § 3E1.1,

app. note 1(a), (b), and (h).

The entry of a guilty plea combined with truthfully admitting

the conduct comprising the offense of conviction constitutes

significant evidence of acceptance of responsibility under

U.S.S.G. § 3E1.1, app. note 3. However, a defendant is not

entitled to this reduction as a matter of right, and the fact that

the defendant entered a guilty plea may be outweighed “by conduct

of the defendant that is inconsistent with such acceptance of

responsibility.” Id.; Webb, 335 F.3d at 538; United States v.

Tilford, 224 F.3d 865, 867 (6th Cir. 2000).

Under § 3E1.1(b), a defendant whose offense level is level

sixteen or greater prior to the adjustment for acceptance of

responsibility may qualify for an additional one-level decrease if

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he has timely notified authorities of his intention to enter a plea

of guilty, thereby permitting the government to avoid preparing for

trial and permitting the court to allocate its resources

efficiently. U.S.S.G. § 3E1.1(b). In order to qualify for the

additional reduction under § 3E1.1(b), the defendant must also

qualify for a decrease under § 3E1.1(a). U.S.S.G. § 3E1.1, app.

note 6.

The district court declined to grant defendant a reduction for

acceptance of responsibility on the ground that defendant’s drug

activities after his indictment and arrest but prior to his guilty

plea were inconsistent with a finding of acceptance of

responsibility. Defendant argues that his plea of guilty in this

case entitles him to the reduction. He contends that since the

incidents involving the LSD recipe and the attempt to smuggle

marijuana occurred prior to the entry of his guilty plea, they

cannot be considered in determining whether he is entitled to the

reduction.

Defendant relies on United States v. Jeter, 191 F.3d at 640,

where we noted that, although district courts have discretion in

determining the time period for acceptance of responsibility, that

discretion is not unbridled. In Jeter, we held that the district

court could not use Jeter’s preindictment state crimes as a basis

for denying him a reduction for acceptance of responsibility,

stating that “the defendant must be on notice that the federal

government has an interest in his or her affairs before § 3E1.1

comes into play.” Id. at 639-40.

Defendant also cites United States v. Tilford, in which this

court concluded that, despite the fact that Tilford was alerted to

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the IRS agents’ interest in his affairs in 1993 when he was

informed of the IRS investigation, the relevant time period for

measuring Tilford’s acceptance of responsibility began with the

entry of Tilford’s guilty plea in 1998. Tilford, 224 F.3d at 868.

Tilford pleaded guilty on the same day he was indicted.

However, in United States v. Harper, 246 F.3d 520, 527 (6th

Cir. 2001), overruled on other grounds, United States v. Leachman,

309 F.3d 377, 385 (6th Cir. 2002), we concluded that the district

court properly evaluated the defendants’ conduct for purposes of

the acceptance of responsibility adjustment as of the date of the

indictment. In Harper, the defendant wrote an obstructive letter

after he was indicted, but three-and-a-half months prior to signing

a plea agreement. This court noted that the district court could

consider the defendant’s behavior following his indictment in

federal court in determining acceptance of responsibility “because

the defendant is certainly ‘on notice that the federal government

has an interest in his ... affairs’ at the time of indictment.”

Id. at 526-27 (quoting Jeter, 191 F.3d at 639-40). We stated that

the defendant knew of the government’s interest in his criminal

activity, at the latest, when he was first indicted, and held that

“the district court did not err by considering all post-indictment

behavior when assessing whether to grant a downward adjustment

under § 3E1.1.” Id. at 527. Subsequently, in United States v.

Webb, this court upheld the district court’s denial of a reduction

for acceptance of responsibility where the defendant continued to

engage in drug trafficking after the execution of search warrants

but prior to the defendant’s arrest. Webb, 335 F.3d at 538.

Defendant relies on United States v. Hakley, No. 01-2423

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(unreported), 2004 WL 1367481 (6th Cir. June 15, 2004). In Hakley

a panel of this court held that the district court should only have

considered the defendant’s post-plea conduct. However, in Hakley,

the other criminal activity in question occurred prior to the

defendant’s being charged by way of information. Thus, we do not

believe that Hakley can be read as placing an absolute ban on the

consideration of conduct which occurs prior to the entry of a

guilty plea. Even if Hakley is so construed, it is an unreported

decision, and to the extent that it conflicts with the previously

published opinions in Harper and Webb, we are bound to follow

Harper and Webb. See 6th Cir. R. 206(c).

The district court did not err in considering the defendant’s

post-indictment conduct in deciding whether the defendant was

entitled to a reduction for acceptance of responsibility. The

district court reasonably concluded that defendant’s admitted

continuing drug activities, which indicated the defendant’s failure

to voluntarily terminate or withdraw from criminal conduct or

associations, was inconsistent with a finding of acceptance of

responsibility. U.S.S.G. § 3E1.1, app. notes 1(b) and 3. The

district court’s denial of the reduction was reasonable. Since the

court properly denied the reduction for acceptance of

responsibility under § 3E1.1(a), defendant was not entitled to a

further one-level reduction under § 3E1.1(b). Defendant’s first

assignment of error is DENIED.

Quantity of Controlled Substance

In his second assignment of error, defendant, citing Blakely

v. Washington, 542 U.S. , 124 S.Ct. 2531 (2004), argues that his

8

rights under the Sixth Amendment of the United States Constitution

were violated when the district court sentenced him based on a

quantity of drugs which was not found by a jury to have been proved

beyond a reasonable doubt and not admitted by him. Defendant does

not attack the factual accuracy of the district court’s drug

quantity findings. Rather, defendant contends that the sentencing

procedures employed by the district court violated Blakely and

Booker.

In Blakely, the Supreme Court held that the determinate

sentencing system in effect in the state of Washington was invalid

on Sixth Amendment grounds. During the pendency of this appeal,

the United States Supreme Court issued a decision in United States

v. Booker, in which the Supreme Court extended the reasoning in

Blakely to the federal Guidelines. The Court in Booker held: “Any

fact (other than a prior conviction) which is 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.”

Booker, 125 S.Ct. at 756. The holding in Booker applies to all

cases pending on direct appeal at the time of the decision. Id.,

125 S.Ct. at 769.

Defendant did not make an argument under Blakely or Booker

before the district court, as neither of those cases had been

decided at the time of the defendant’s sentencing. Typically,

where a defendant fails to assert an argument before the district

court, that argument is deemed to be forfeited and is reviewed on

appeal for plain error. United States v. Milan, 398 F.3d 445, 450-

51 (6th Cir. 2005). However, in this case, the government argues

9

that the defendant’s withdrawal of his objection to the probation

officer’s conclusions concerning the amount of drugs to be

considered as relevant conduct operated as an admission of that

drug quantity. The government’s position is that defendant’s

withdrawal of his objections to drug quantity constituted a waiver

by the defendant of any objection to that quantity, foreclosing any

claim of error under Booker.

Waiver is distinguishable from forfeiture. Forfeiture is the

failure to make a timely objection or assertion of a right, whereas

waiver is the intentional relinquishment or abandonment of a known

right. United States v. Olano, 507 U.S. 725, 733 (1993). Plain

error review does not apply to cases of waiver, but may be invoked

in the court’s discretion to review rights that were forfeited

below. Id. at 733-34.

In United States v. Stafford, 258 F.3d 465, 476 (6th Cir.

2001), we held that the defendant’s failure to challenge the drug

quantity findings made by the probation officer operated as an

admission to the drug types and quantities contained in the report,

and provided the requisite factual basis to sustain the defendant’s

enhanced sentence. See also United States v. Roper, 266 F.3d 526,

531-32 (6th Cir. 2001)(defendant’s withdrawal of objection and

stipulation to drug quantity in presentence report provided

requisite factual basis for enhanced sentence); United States v.

Pruitt, 156 F.3d 638, 648 (6th Cir. 1998)(defendant’s statement that

he had no objections to the presentence report constitutes an

express admission of the amount and type of drugs attributed to the

defendant in the report).

Although the above decisions stand for the proposition that

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the failure to object to the probation officer’s calculations of

drug quantity constitutes an admission of that quantity, they do

not specifically address whether that failure to object constitutes

a waiver precluding plain error review of the district court’s

quantity determinations on appeal. In United States v. Treadway,

328 F.3d 878, 883 (6th Cir. 2003), we applied a plain error analysis

to defendant’s drug quantity challenge on appeal even though

defendant did not object at sentencing to the drug quantity

specified in the PSI. Thus, there may be a hypothetical case where

a defendant could argue for a plain error analysis of a Stafford

admission, such as where the parties learn after sentencing that

the quantity finding was based on clearly erroneous information, or

where the defendant at sentencing was unaware of or mistaken as to

material facts.

However, such an issue is not before us here. Regardless of

whether a Stafford admission results in a waiver or a forfeiture of

any objection to the accuracy of the probation officer’s drug

quantity findings, that is not the nature of defendant’s claim in

this appeal. Rather, the defendant’s argument is that his Sixth

Amendment rights as defined under Blakely and Booker were violated

by the sentencing procedure employed by the district court.

In Stafford and Roper, this court employed a plain error

analysis in addressing an analogous argument that the sentences in

those cases were invalid under Apprendi v. New Jersey, 530 U.S. 466

(2000). Stafford, 258 F.3d at 476-79; Roper, 266 F.3d at 531. In

United States v. Stines, 313 F.3d 912 (6th Cir. 2002), this court

reviewed the defendants’ Apprendi claim for plain error even though

one defendant withdrew his objection to the drug quantity in the

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report and another defendant stipulated to a base offense level.

We commented, “The subsequent withdrawal by Stines and stipulation

by Ford could lead one to believe that defendants waived their

claims challenging the drug quantity determination.” Id. at 917.

However, noting the distinction between waiver and forfeiture, this

court went on to state that it “would have been impossible for the

defendants to have intentionally relinquished or abandoned their

Apprendi based claims considering Apprendi was decided after they

were sentenced.” Id. We concluded that the withdrawal of Stine’s

objection and Ford’s stipulation resulted in a forfeiture rather

than a waiver of their right to challenge the drug quantity

determination on appeal, requiring review of their Apprendi claim

under the plain error analysis. Id. at 917-18.

As in Stines, the defendant here could not have intentionally

relinquished or abandoned his Blakely and Booker claims, since

those cases were decided after he was sentenced. Therefore, we

will address the defendant’s claim under Blakely and Booker using

a plain error analysis.

Under the plain error test, “before an appellate court can

correct an error not raised at trial, there must be (1) ‘error,’

(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’”

Johnson v. United States, 520 U.S. 461, 466-67 (1997)(quoting

Olano, 507 U.S. at 731). If these three criteria are met, then we

may exercise our discretion to notice a forfeited error which

seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Milan, 398 F.3d at 451.

First, we must consider whether there was error under current

law. United States v. Rogers, 118 F.3d 466, 471-72 (6th Cir. 1997).

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In Booker, the Supreme Court held that any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by the plea of guilty

or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt. Booker, 125 S.Ct. at 756. Here,

Count 1 of the indictment alleged a conspiracy involving a

“detectable amount of methamphetamine” and no particular quantity

was specified in the plea agreement. However, under Stafford, the

defendant effectively admitted the quantity of drugs used to

calculate his sentence by withdrawing his objection to the drug

calculations in the presentence report. Defendant’s admission of

drug quantity under Stafford constituted an admission of facts

under Booker. Therefore, the district court’s reliance on the

amount of drugs attributed to the defendant in the presentence

report did not violate the defendant’s Sixth Amendment rights. See

Stafford, 258 F.3d at 476 (rejecting defendant’s Apprendi argument,

and noting that “Defendant’s factual admissions in this case

obviate any possible concerns about the proper standard of

proof.”).2

However, the extent of defendant’s rights under Booker does

not end there. Defendant was sentenced under the pre-Booker

2

Judge Clay states in his concurring opinion that it is inconsistent to

hold that plain error review of defendant’s Booker claim is available when

defendant’s Stafford admission forecloses any argument that his Sixth Amendment

rights were violated. However, the starting point for determining the

availability of plain error review is not whether the claim has merit. Stines

indicates that where the defendant could not have intentionally relinquished or

abandoned a constitutional claim first recognized after sentencing, a forfeiture,

rather than a waiver, results, even if the plain error analysis ultimately

reveals that the district court committed no error. See Stines, 313 F.3d at 917;

United States v. Harris, No. 04-1589, 2005 WL 894581 at *2 (6th Cir. Apr. 19,

2005)(finding no Sixth Amendment error in light of Stafford admission after

applying plain error analysis).

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mandatory Sentencing Guidelines. Because 18 U.S.C. §3553(b)(1) has

been excised and severed under Booker, the district court erred by

treating the Guidelines as mandatory when it sentenced defendant.

United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). Thus,

in this respect, the first branch of the plain error test is

satisfied in this case.

The second issue is whether the error was “plain.” A “plain”

error is one that is “clear” or “obvious.” Olano, 507 U.S. at 733-

34. Where the law at the time of trial was settled and clearly

contrary to the law at the time of appeal, it is sufficient that an

error be plain at the time of appellate consideration. Johnson,

520 U.S. at 468. In this case, the Sentencing Guidelines were

mandatory when the defendant was sentenced, but Booker effectuated

a “clear” and “obvious” change in law by making the Sentencing

Guidelines advisory. Thus, it was plain error for defendant to be

sentenced under a mandatory Guidelines scheme that has now become

advisory. See Barnett, 398 F.3d at 525-26.

The third prong is whether the error affects the defendant’s

substantial rights. Generally, for an error to affect a

defendant’s substantial rights, the error must have been

prejudicial, such as error that caused the defendant to receive a

more severe sentence. Olano, 507 U.S. at 734; United States v.

Swanberg, 370 F.3d 622, 629 (6th Cir. 2004). However, in Barnett,

a panel of this court held that a presumption of prejudice arises

in cases where a defendant is sentenced under mandatory, rather

than advisory, Guidelines, and where the district court could have

imposed a lower sentence had it known that the Guidelines were

merely advisory. Barnett, 398 F.3d at 528 (prejudice presumed

14

because it would be exceedingly difficult for a defendant to show

that his sentence would have be different under an advisory

framework).

The Barnett court noted that the presumption of prejudice

could be rebutted in a rare case where “the trial record contains

clear and specific evidence that the district court would not have,

in any event, sentenced the defendant to a lower sentence under an

advisory Guidelines regime.” Id. at 529. However, no such

evidence exists in the instant case. Defendant was sentenced prior

to the decisions in Blakely and Booker, and the district court did

not indicate what sentence would be imposed if the Guidelines were

regarded as advisory rather than mandatory. The case for remand is

particularly strong where, as here, the district court sentenced

defendant at the low end of the Guidelines range. See United

States v. Hamm, 400 F.3d 336, 340 (6th Cir. 2005).

Because defendant was sentenced under the Sentencing

Guidelines as a mandatory, rather than advisory, sentencing scheme,

defendant’s substantial rights have been affected, and the third

prong of the plain error test has been satisfied.

Finally, we must determine whether this case warrants the

exercise of our discretion. Rogers, 118 F.3d at 473. In

accordance with Barnett, “[w]e conclude that an exercise of our

discretion [to remedy plain error] is appropriate in the present

case.” Barnett, 398 F.3d at 530. This is a case where the error

may be regarded as seriously affecting the fairness, integrity, or

public reputation of judicial proceedings. Milan, 398 F.3d at 451.

As we noted in United States v. Oliver, 397 F.3d 369, 381 n. 3 (6th

Cir. 2005), we ought not assume that a defendant’s sentence under

15

the new discretionary sentencing regime would be the same and

therefore that a remand is superfluous.

Conclusion

For the foregoing reasons, we AFFIRM the district court’s

denial of a reduction for acceptance of responsibility under the

Guidelines. In addition, we VACATE defendant’s sentence and REMAND

for resentencing consistent with this opinion and with the Supreme

Court’s decision in Booker.

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CLAY, J., concurring in the judgment only. I fully agree that

Clements’ sentence must be remanded to the district court in light

of our holding in United States v. Barnett, 398 F.3d 516, 525 (6th

Cir. 2005). I also agree that the district court did not err in

denying a downward departure in Clements’ sentence for acceptance

of responsibility. I decline to join the majority opinion because

I believe that it inappropriately relies on pre-Booker

jurisprudence to analyze Clements’ claim that he was sentenced in

violation of the Sixth Amendment. Furthermore, because Clements’

sentence must be remanded in light of Barnett, the majority’s

extended Sixth Amendment discussion amounts to wholly unnecessary

dicta. However, since the majority does address the issue, I am

compelled to note my disagreement with its analysis.

In United States v. Stafford, 258 F.3d 465, 476 (6th Cir.

2001), this Court held, pre-Booker, that the failure to object to

the type and/or quantity of drugs set forth in the presentence

investigation report (“PSIR”) constitutes an admission of the type

and/or quantity therein. The majority in the instant case applies

Stafford, and concludes that by failing to object Clements

effectively admitted the amount of methamphetamine set forth in the

PSIR. This is undoubtedly a correct application of Stafford’s

holding. However, the majority also concludes that Defendant’s

failure to object to the PSIR constituted a forfeiture, and not a

waiver, of his right to raise a Booker-based Sixth Amendment

17

argument on appeal. The conclusion that Clements’ failure to

object was both an admission and a forfeiture is illogical. It

does not make sense to state that Clements admitted the amount of

drugs used to calculate his sentence, but then also state that he

forfeited a Booker argument that we may review for plain error.

Booker specifically holds that “any fact . . . which is 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 . . .” United States v. Booker, 125 S. Ct. 738,

756 (2005) (emphasis added). Where the defendant has admitted the

facts used to calculate his sentence, there is no Booker problem,

thus there is nothing to review for plain error. This conclusion

is consistent with Stafford, which, although purporting to apply

plain error review, recognized that the district court did not

“commit[] any sort of error, plain or otherwise.” Stafford, 258

F.3d at 471. In my opinion, if the majority wishes to apply

Stafford, it makes much more sense to simply conclude that

Clements’ admission to the amount of drugs under Stafford

forecloses any argument that his sentence violated the Sixth

Amendment. See United States v. Harris, No. 04-1589, 2005 WL

894581 at *2 (6th Cir. Apr. 19, 2005) (citing Stafford and

concluding that the defendant’s failure to object to the PSIR means

that “there is no Sixth Amendment error in the present case”).

Furthermore, in addition to disagreeing with the way in which

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the majority applies Stafford, I am not at all convinced that

Stafford and the other cases cited by the majority actually survive

Booker. Once again, because Barnett conclusively resolves

Clements’ sentencing claim, I believe it is entirely unnecessary to

rely on pre-Booker precedent such as Stafford and its progeny.

Because the majority’s conclusion that Clements’ failure to

raise a Sixth Amendment argument before the district court

constitutes a forfeiture that may be reviewed for plain error is

illogical in light of the conclusion that Clements’ failure to

object to the PSIR constituted an admission under Stafford, and is

superfluous dicta, I respectfully decline to join the majority’s

opinion.

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