UNITED STATES of America. Plaintiff-Appellee, v. Steven EUBANKS, Defendant-Appellant, 177 F. App'x 467

SARGUS, District Judge. Steven Eubanks pleaded guilty to attempting to manufacture methamphetamine, in violation of 21 U.S.C. § 846; possession of equipment, chemicals, products, and materials which may be used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6); and possession of pseudoephedrine with the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c). The relevant Sentencing Guidelines range was 46 to 57 months, and the district court sentenced Eubanks to a term of 57 months’ imprisonment.

The court sentenced Eubanks on the assumption that the sentencing guidelines were mandatory, as that term was used in United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The sentencing took place before Booker was decided and the district judge did not announce an alternative sentence as suggested by this court in United States v. Koch, 383 F.3d 436 (6th Cir.2004) (en banc), vacated by — U.S. —, 125 S.Ct. 1944, 161 L.Ed.2d 764 (2005). We held in United States v.

Barnett, 398 F.3d 516, 528 (6th Cir.2005), that there is a presumption of prejudice when a defendant was sentenced under the mandatory Guidelines, but that the presumption can be rebutted by “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.” United States v. Webb, 403 F.3d 373, 382 (6th Cir.2005) (quoting Barnett, 398 F.3d at 529), cert. denied, — U.S. —, 126 S.Ct. 1110, — L.Ed.2d — (2006).

We find that the court’s imposition of a sentence at the top of the Guidelines range is not, standing alone, “clear and specific evidence” that Eubanks would not have received a lower sentence under an advisory Guidelines regime. Based upon the foregoing, Eubanks’s sentence is VACATED and his case is REMANDED for resentencing under Booker.