United States Court of Appeals for the Sixth Circuit ______

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0020p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ UNITED STATES OF AMERICA, X Plaintiff-Appellee, - - - Nos. 05-6412/6415/6416 v. - > , NORMAN T. SEXTON (05-6412); RICHARD ROMANS - (05-6415); JAMES ALBERT LEGG (05-6416), - Defendants-Appellants. - - N Appeal from the United States District Court for the Eastern District of Tennessee of Chattanooga. No. 99-00071—Curtis L. Collier, Chief District Judge. Argued: October 25, 2007 Decided and Filed: January 11, 2008 Before: MERRITT, ROGERS, and McKEAGUE, Circuit Judges. _________________ COUNSEL ARGUED: Stephen T. Greer, Dunlap, Tennessee, Marshall A. Raines, SWAFFORD, JENKINS & RAINES, Jasper, Tennessee, Clayton M. Whittaker, MACK & WHITTAKER, Chattanooga, Tennessee, for Appellants. Gregg L. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. ON BRIEF: Stephen T. Greer, Dunlap, Tennessee, Marshall A. Raines, SWAFFORD, JENKINS & RAINES, Jasper, Tennessee, Clayton M. Whittaker, MACK & WHITTAKER, Chattanooga, Tennessee, for Appellants. Gregg L. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. ROGERS, J., delivered the opinion of the court, in which MCKEAGUE, J., joined. MERRITT, J. (pp. 7-11), delivered a separate dissenting opinion. _________________ OPINION _________________ ROGERS, Circuit Judge. Defendants Norman T. Sexton, Richard Romans, and James A. Legg challenge the sentences imposed by the district court on remand from this court for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). Defendants were sentenced in 2002 after being convicted of offenses stemming from the distribution of cocaine. After the Supreme Court’s decision in Booker, this court entered an order vacating the sentences of all three 1 Nos. 05-6412/6415/6416 United States v. Sexton, et al. Page 2 defendants and remanding their cases for resentencing. On remand, the district court reimposed identical sentences. Defendants make five primary arguments on appeal: (1) the district court violated their Sixth Amendment and due process rights by using its own factual findings to calculate their sentencing ranges under the United States Sentencing Guidelines; (2) their sentences exceeded the “maximum statutory sentence” allowable for their offenses; (3) the imposition of their sentences in accordance with the remedial portion of Booker created an unconstitutional ex post facto effect; (4) Sexton’s sentence was unreasonable; and (5) the district court’s refusal to order the preparation of new presentencing reports on remand was improper under Fed. R. Crim. P. 32. Because all of these arguments are without merit, we affirm the sentences imposed by the district court. I. On December 20, 2000, a jury found all three defendants guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and found defendants Romans and Legg guilty of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The presentencing reports (PSRs) prepared for defendants provided Sentencing Guidelines ranges of 235 to 240 months for Sexton, 210 to 240 months for Legg, and 151 to 188 months for Romans. The PSRs attributed 15.05, 13.69, and 5.86 kilograms of cocaine to Sexton, Legg, and Romans, respectively, for purposes of calculating their base offense levels. Pursuant to U.S.S.G. § 3B1.1, the PSRs also recommended enhancing all three defendants’ base offense levels because of their roles in the offense. Legg’s offense level was also increased under U.S.S.G. § 2D1.1(b)(1) for his possession of a firearm in connection with the offense. Both the drug quantity and sentencing enhancement determinations made in defendants’ PSRs were based upon testimony given at trial. After examining the trial testimony, the district court adopted the findings of the PSRs with respect to the drug quantity attributable to each defendant and the application of § 3B1.1 role enhancements to the base offense levels of Sexton and Legg. The court concluded, however, that a role enhancement was not warranted with regard to Romans and that a firearm enhancement was not warranted with regard to Legg. Consequently, the district court determined that the proper Guidelines ranges for Sexton, Legg, and Romans were 235 to 240 months, 168 to 210 months, and 121 to 151 months, respectively. On June 2, 2002, the district court sentenced Sexton to 238 months, Legg to 196 months, and Romans to 148 months of confinement. Defendants appealed their sentences to this court, arguing that the use of judicial fact-finding to determine their respective drug amounts violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the district court erred in applying § 3B1.1 role enhancements. In a decision filed on January 6, 2005, this court rejected defendants’ claims, but noted that a case then pending before the Supreme Court, United States v. Booker, 543 U.S. 220 (2005), might affect their sentences. Given that possibility, this court advised defendants that they could file a petition for rehearing if Booker did, indeed, have an impact on their sentences. After the Supreme Court decided Booker on January 12, 2005, defendants petitioned this court for rehearing in light of that opinion. This court subsequently entered an order vacating the sentences of all three defendants and remanding the case to the district court for resentencing. Prior to their resentencing hearing, all three defendants filed motions arguing that Booker required the district court to order the preparation of new PSRs, which were to be based only upon facts that had been found by the jury beyond a reasonable doubt. Defendants also renewed all of their prior objections to the PSRs. The district court denied these motions because defendants failed to point out any factual inaccuracies in the PSRs or any legal authority for the proposition that facts used for sentencing purposes must be found by a jury. Further, with respect to defendants’ renewed objections to the PSRs, the district court held that it was without authority to reopen prior sentencing Nos. 05-6412/6415/6416 United States v. Sexton, et al. Page 3 rulings, since the sole purpose of the remand was for the court to decide whether it would exercise its authority to vary from the Sentencing Guidelines. Defendants were resentenced on September 1, 2005. At the outset, the district court reiterated that its only task was to determine whether it wished to exercise its new discretionary authority under Booker and that it “ha[d] no authority to revisit the guidelines.” The district court then invited the parties to address the sentencing goals set forth in 18 U.S.C. § 3553(a). At this time, all three defendants objected again to the calculation of their Guidelines ranges using facts not found by a jury beyond a reasonable doubt. Defendants also took this opportunity to request that the sentencing court take into account their individual mitigating circumstances. Sexton, for instance, reminded the court of his good standing in the community, as evidenced by the number of persons attending his bond hearing, and the negative effect that the case was having on his family. After listening to all of the parties, the district court imposed defendants’ sentences. The district court began by noting that it understood the advisory nature of the Guidelines and that “in arriving at an appropriate sentence,” it would consult the Guidelines as well as the sentencing goals enumerated in § 3553(a). While acknowledging that “the attorneys have spoken to those goals,” the district court then listed and explained all four of the major § 3553(a) sentencing goals. After reciting those goals, the district court concluded that retribution and general deterrence were the most important goals in this case, given that defendants had committed drug trafficking crimes. Finally, the district court explicitly acknowledged each defendant’s assertions as to his specific mitigating circumstances. “Taking into account all of these factors,” the district court then imposed the same sentences that it had initially imposed. II. The district court did not violate defendants’ Sixth Amendment and due process rights by making factual findings, by a preponderance of the evidence, to determine defendants’ sentencing ranges. As noted, the district court made its own factual determinations for sentencing purposes, based upon trial testimony, as to the quantity of cocaine attributable to each defendant and each defendant’s role in the offense. This court has squarely rejected defendants’ contention that Booker and Blakely v. Washington, 542 U.S. 296 (2004), require all factual findings affecting a sentence’s severity to be made by a jury beyond a reasonable doubt. In United States v. Cook, 453 F.3d 775, 777 (6th Cir. 2006), this court explained that “[Booker] has no bearing on advisory guideline calculations,” but, instead, applies only to judicially found facts used “to impose a mandatory enhancement.” Where, as here, a district court understands that the Guidelines are only advisory, judicial fact-finding done by the preponderance of the evidence is permissible. As we stated in United States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006) (collecting cases), “[b]y now, it is well established that the preponderance standard does not violate Booker, so long as the trial court appreciates that the guidelines are advisory, not binding.” See also United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005) (“Booker did not eliminate judicial fact-finding”). Moreover, nothing in the Supreme Court’s recent ruling in Rita v. United States, 127 S. Ct. 2456 (2007), changes our understanding. III. Defendants’ sentences also did not exceed the maximum statutory penalty that could be imposed for their offenses. In its normal use, the term “statutory maximum” simply describes the “upper limit of punishment that Congress has legislatively specified for violation of a statute.” United States v.

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