United States v. Bassett

111 F. App'x 841

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 10, 2004
• Docket: 03-5646
• Status: Unpublished

Opinion

MEMORANDUM OPINION

PER CURIAM.

Plaintiff, United States, appeals from the district court’s refusal to apply the cross-reference provision of the United States Sentencing Guidelines (USSG) under § 2K2.1, where defendant-appellee admitted to possessing a firearm in connection with a drug trafficking offense. Defendant pled guilty to possession of a firearm with an obliterated serial number. At sentencing, the government argued that defendant’s conviction should be cross-referenced under § 2K2.1. Relying on United States v. Stubbs, 279 F.3d 402 (6th Cir.2002) the district court concluded that applying the cross-reference would raise a constitutional problem under the Sixth Amendment. The district court sentenced defendant to 34 months in prison followed by three years of supervised release.

This Court reviews de novo the district court’s legal conclusions regarding application of the United States Sentencing Guidelines. United States v. Newell, 309 F.3d 396, 400 (6th Cir.2002).

The district court refused to apply the cross-reference provision of § 2K2.1(c), based on its interpretation of and reliance on this Court’s opinion in Stubbs. However, it is now clear that Stubbs is no longer good law. See Hams v. United States, 536 U.S. 545, 558-60, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)(holding that the constitutional mandates of Apprendi, do not apply to the Guidelines when the defendant’s sentence remains below the maximum sentence authorized by the statute); see also United States v. Helton, 349 F.3d 295, 300 (6th Cir.2003)(holding that Stubbs and the decisions upon which Stubbs relied did not survive Harris). Therefore, because the district court erred when it relied on Stubbs and refused to apply the cross-reference provision of the Guidelines its judgment must be vacated and the matter remanded for resentencing.

We note that in this appeal defendantappellee raised a challenge to the constitutionality of his sentence citing Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a case decided after the district court judgment was entered. We find no merit to this claim. See United States v. Koch, 383 F.3d 436 (6th Cir.2004)(en banc).

IV. CONCLUSION

The district court erred when it refused to apply the cross-reference provision of § 2K2.1. Accordingly, the judgment of the district court is VACATED and this case is REMANDED for further proceedings consistent with this opinion.