United States of America v. Terry Lawrence Jenkins

*The Honorable Karl S. Forester, Senior District Judge for the Eastern District of Kentucky, sitting by
designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0572n.06
Filed: August 10, 2006
Case No. 04-1904
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY LAWRENCE JENKINS,
Defendant-Appellant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
BEFORE: BATCHELDER and SUTTON, Circuit Judges; FORESTER*, District Judge.
ALICE M. BATCHELDER, Circuit Judge. In November 2003, police officers executed
a search warrant at the home of the appellant, Terry Jenkins, whom they knew to be a felon. The
search revealed drugs, drug paraphernalia and four firearms. Jenkins was indicted, and he pled
guilty to being a felon in possession of one or more firearms in violation of 18 U.S.C. § 922(g)(1).
At sentencing, the district court found that one of the guns in Jenkins’s possession was stolen, a fact
that increased the applicable Guidelines range. On appeal, Jenkins argues that the district court’s
use of that factual finding in calculating his sentence violated his Sixth Amendment rights under
United States v. Booker, 543 U.S. 220 (2005). Because the district court did not treat the Guidelines
as mandatory, and because the court adequately considered the factors named in 18 U.S.C. § 3553
and imposed a reasonable sentence, we affirm.

-- 1 of 4 --

2
Although Jenkins was sentenced prior to the Supreme Court’s decision in United States v.
Booker, supra, he did raise an objection under Blakely v. Washington, 542 U.S. 296 (2004), to the
district court’s including in its sentencing calculations its factual finding regarding the stolen gun.
We therefore review the district court’s sentence for harmless error. United States v. Christopher,
415 F.3d 590, 593 (6th Cir. 2005).
We find no such error here. To begin with, Jenkins’s sentence was not imposed in violation
of the Sixth Amendment. As we noted in Christopher,
The Court [in Booker] held that the Sixth Amendment requires that facts “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.” As a remedy, however, the Court, rather than
requiring that all facts supporting enhancements be proved to the jury, instead
severed 18 U.S.C. § 3553(b), thereby rendering most Guidelines enhancements
advisory.
Id. (internal citations omitted). Here, in calculating the applicable Guidelines range the district court
did rely on its own finding that one of the guns Jenkins possessed was stolen, but the court did not
treat the Guidelines as mandatory. During sentencing, the court explicitly ruled that the Guidelines
were “facially unconstitutional,” and characterized them as “nonbinding suggestions” and as
“recommendations of factors that a serious court should consider in imposing a sentence.” The court
then stated that it could choose any sentence within the statutory range described by 18 U.S.C. §
922(g)(1). This use of a judge-found fact to support an enhancement did not violate the Sixth
Amendment.
In Christopher, the district court sentenced the defendant both under mandatory Guidelines
and, alternatively, as if the Guidelines were entirely inapplicable. We held that these alternative
sentences were erroneous because neither correctly predicted the outcome in Booker, but we

-- 2 of 4 --

3
nonetheless held that the error was harmless because the alternative sentence made it abundantly
clear that the court would have imposed the Guidelines sentence even in the total absence of any
guidelines. Id. at 593-94. Here, unlike the court in Christopher, the district court accurately foresaw
the Supreme Court’s Booker pronouncement that the Guidelines are one factor among many that a
sentencing court is bound to consider. Hence, if there was any Booker error here, it was clearly
harmless.
Having found that any Booker error was harmless, we must affirm Jenkins’s sentence if it
is reasonable. Christopher, 415 F.3d at 594. A sentence may be unreasonable when the district
court fails to consider the factors listed in 18 U.S.C. § 3553(a). United States v. Webb, 403 F.3d
373, 383 (6th Cir. 2005). A sentence properly calculated under the Guidelines is endowed with a
rebuttable presumption of reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir.
2006).
The district court’s sentence in this case was reasonable. First, the court correctly calculated
the applicable Guidelines range, which was 100 - 125 months’ imprisonment. Although Jenkins’s
counsel objected to the district court’s including in its calculation the fact that one of the guns
Jenkins admitted to possessing was stolen, that objection is, as we have noted above, without merit.
Second, although the court did not explicitly invoke 18 U.S.C. § 3553, it considered the factors
enumerated in the statute, including the nature and circumstances of the offense, Jenkins’s criminal
history and his need for drug rehabilitation, the need for the sentence imposed – specifically, the
need to protect the public from further crimes of the defendant, and the need to reflect the
seriousness of the offense – and the need to avoid unwarranted disparities in sentences. After
entertaining argument from Jenkins’s counsel on the appropriate length of incarceration, and

-- 3 of 4 --

4
considering Jenkins’s statements in allocution, the court imposed a sentence of 100 months’
imprisonment, the lowest sentence in the Guidelines range. Finally, because the chosen sentence
falls within the correctly calculated Guidelines range, it is entitled to a presumption of
reasonableness under Williams, which Jenkins has not attempted to rebut on appeal.
For the foregoing reasons, we AFFIRM the judgment of the district court.

-- 4 of 4 --