UNITED STATES of America, Plaintiff-Appellee, v. Nicholas Devon GOFF, Defendant-Appellant, 129 F. App'x 947

OPINION 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 Goffs sentence be computed using Base Offense Level 20, as the probation office concluded that Goffs 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, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), whether his prior robbery conviction qualified as a crime of violence was a fact that must be either admitted by him or proved to a jury beyond a reasonable doubt. 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 Goffs 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 mil 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, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We requested letter briefs on the applicability of those two cases to Goffs appeal. As an initial matter, we note that we remain bound by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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.”). As Goff does not contend that Shepard actually overrules the prior-conviction holdings of Barnett and Almendarez-Torres, Goff Letter Br. at 4, Goffs 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, 403 F.3d 373, 382-83 (6th Cir.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 Goffs sentence and REMAND the case to the district court for further proceedings not inconsistent with this opinion. . Conceding that this position is probably inconsistent with Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), Goff argued that Almendarez-Torres "will be revisited.” Joint Appendix ("J.A.”) at 30 (Sentencing Hr’g).