Nos. 04-5829/5830
                                  File Name: 06a0254n.06
                                    Filed: April 12, 2006

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
   Plaintiff-Appellee,                              )
                                                    )   ON APPEAL FROM THE
       v.                                           )   UNITED STATES DISTRICT
                                                    )   COURT FOR THE WESTERN
LARRY SCOTT RAMSEY,                                 )   DISTRICT OF TENNESSEE
                                                    )
   Defendant-Appellant.                             )



Before:       MARTIN, NELSON, and COLE, Circuit Judges.


       DAVID A. NELSON, Circuit Judge. This matter comes before us on direct appeal

of a judgment of conviction and sentence in two consolidated criminal cases involving the

same defendant. The defendant presents three arguments: (1) that the district court, while

presuming the United States Sentencing Guidelines to be mandatory, enhanced the

defendant’s sentence on the basis of facts not admitted by the defendant; (2) that in applying

the guidelines the court erred in its calculation of the “intended loss;” and (3) that the

government breached a plea agreement entered in one of the cases.

       We are not persuaded that the government breached the plea agreement. We must

give effect, therefore, to a provision of the agreement in which the defendant waived the right
Nos. 04-5829/5830
Page 2

to appeal his sentence in the case to which the agreement applied. As to that case, the appeal

will be dismissed.

       There was no waiver of appellate rights as to the other case. Because the district court

plainly erred in that case by treating the sentencing guidelines as mandatory and by

enhancing the defendant’s sentence on the basis of judicially determined facts, we shall

vacate the resultant sentence and remand the case for re-sentencing in accordance with this

opinion.


                                              I


       The defendant, Larry Scott Ramsey, was indicted in the Western District of Tennessee

on charges that included bank fraud. At about the same time, an information was filed in the

Northern District of Texas charging Mr. Ramsey with conspiracy to steal mail matter.

       Mr. Ramsey entered into a plea agreement in the Texas case and consented to a

transfer of the case to the Western District of Tennessee for plea and sentence. The

agreement required Ramsey to cooperate with the government and required the government

to “advise the Court of the extent of Ramsey’s cooperation.” The agreement further provided

that Ramsey would be sentenced “pursuant to the United States Sentencing Guidelines” and

that Ramsey waived the right to appeal his sentence, except in circumstances that are not

claimed to be present here.
Nos. 04-5829/5830
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       In addition to pleading guilty to the Texas mail theft charge, Mr. Ramsey pleaded

guilty to the Tennessee charge of bank fraud. (The other counts of the indictment were

dismissed.)   Ramsey admitted that he had opened a bank account using counterfeit

identification documents and a check stolen from the mail. He also admitted to possession

of counterfeit checks and identification documents as well as equipment and materials used

in making counterfeits.

       At sentencing, the district court found that the losses intended by Mr. Ramsey totaled

between $400,000 and $1 million and that Ramsey’s offenses had more than 50 victims.

These findings increased Ramsey’s offense level under the sentencing guidelines by 14 and

four levels, respectively, resulting in a guideline range of imprisonment for 78 to 97 months.

The court imposed a sentence of 78 months on the bank fraud charge in the Tennessee case

(CR # 03-20107) and a concurrent sentence of 60 months — the statutory maximum1 — in

the Texas case (CR # 03-20489). Mr. Ramsey filed a timely appeal.


                                              II


       Mr. Ramsey waived the right to appeal his sentence on the mail theft charge. See

United States v. Bradley, 

, 463-66 (6th Cir.), cert. denied, 

(2005).

Although the government’s material breach of a plea agreement containing a waiver of

appellate rights renders the waiver ineffective, see United States v. Swanberg, 

,


       1
        See 18 U.S.C. § 1708.
Nos. 04-5829/5830
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627-29 (6th Cir. 2004), there was no breach of the plea agreement here. The government did

not obligate itself to seek a downward departure for substantial assistance, as Mr. Ramsey

suggests, but promised only to “advise the Court of the extent of Ramsey’s cooperation.”

Mr. Ramsey’s lawyer acknowledged at sentencing that the district court was so advised.


                                              III


                                              A


       There being no waiver of the right of appeal in the Tennessee case, we turn now to

Mr. Ramsey’s argument that the district court improperly enhanced his bank fraud sentence

on the basis of judicially determined facts while presuming the sentencing guidelines to be

mandatory. Ramsey relies on United States v. Booker, 

, 244 (2005), where the

Supreme Court held that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by a plea of

guilty . . . must be admitted by the defendant . . . .” Mr. Ramsey did not make a Booker-type

argument in the district court, so our review is for plain error.

       Mr. Ramsey never admitted that he intended to cause losses totaling between

$400,000 and $1 million. Nor did he admit that his offenses had more than 50 victims. As

we understand the record, the facts that were admitted by Ramsey would have yielded a
Nos. 04-5829/5830
Page 5

maximum guideline sentence of 41 months.2 Operating under a guideline system that it

believed to be mandatory, the district court plainly erred in imposing a 78-month sentence

on the strength of unadmitted facts. See United States v. Oliver, 

, 378-81 (6th

Cir. 2005).

       Moreover, because Booker rendered the sentencing guidelines advisory in cases that

were on direct appeal at the time, see 

, 268, the district court’s

attribution of binding force to the sentencing guidelines would have constituted plain error

even in the absence of an improper sentence enhancement. See United States v. Barnett, 

, 525-26 (6th Cir.), cert. dismissed, 

(2005). The presumption of

prejudice that attaches to such an error, see 

has not been rebutted in the case

at bar. For this reason as well, Mr. Ramsey’s sentence in the Tennessee case must be

vacated.


                                              B


       On remand for re-sentencing, the district court must take the advisory guideline

sentence range into consideration. See 

. The correct determination


       2
        In the district court, Mr. Ramsey conceded that the admitted facts established an
intended loss of between $120,000 and $200,000. A loss in that range translates to a 10-level
enhancement rather than the 14-level enhancement that would result from a loss of between
$400,000 and $1 million. U.S.S.G. § 2B1.1(b)(1)(F), (H) (2002). Mr. Ramsey did not make
any admission as to the number of victims, so no offense-level enhancement is authorized
on that ground. Accordingly, Mr. Ramsey’s offense level would be eight levels lower absent
the district court’s fact-finding, resulting in a guideline sentence range of 33 to 41 months.
Nos. 04-5829/5830
Page 6

of the guideline range therefore remains at issue. Mr. Ramsey argues that canceled checks

and draft counterfeit checks should not be included in the calculation of “intended loss”

under U.S.S.G. § 2B1.1(b)(1).

       Among the items found in Mr. Ramsey’s possession were canceled checks that he had

stolen from the mail. There was evidence that Ramsey had used other canceled checks in

fabricating counterfeits. Law enforcement officers also found multiple copies of poorly

printed or unsigned counterfeit checks. Mr. Ramsey testified that these were rough drafts,

and that he intended to cash only one finished version of each instrument. The total amount

of the canceled checks at issue was about $318,000, and the total of the draft checks was

about $79,000. The district court apparently included both of these totals in its calculation

of intended loss.

       We request the district court to explain, on remand, the extent to which it includes

draft and canceled checks in its loss calculation and the reasons for doing so. Where there

are multiple rough copies of a single counterfeit check, it seems likely to us that only one

iteration of the check can properly be counted. Further, although it might be reasonable to

infer that Ramsey intended to pass counterfeit checks in amounts approximating those of the

canceled checks in his possession, see United States v. Holloman, 

, 693 (3d Cir.

1992), cert. denied, 

(1993), Ramsey should be given an opportunity on remand

to present any argument he may have as to why it would be appropriate, on the particular

facts of this case, to consider discounting the total of the cancelled checks. (We note that the
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Page 7

circumstance which led the Third Circuit to mention a potential argument for discounting the

canceled check total in Holloman does not appear to have any parallel in the present case,

but Ramsey is not foreclosed from making a discounting argument based on the facts of this

case if he has such an argument.)


                                            IV


       The appeal of the judgment on the charge in Case No. 03-20489 (the Texas case) is

DISMISSED.

       The sentence in Case No. 03-20107 (the Tennessee case) is VACATED, and the case

is REMANDED for re-sentencing in accordance with this opinion.