NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0163n.06
Filed: March 2,2006
No. 04-2284
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
ROBERT EUGENE TISER, ) OPINION
)
Defendant-Appellant. )
BEFORE: RYAN, and COLE, Circuit Judges; and SARGUS, District Judge.*
R. GUY COLE, JR., Circuit Judge. Defendant Robert Eugene Tiser pleaded guilty to one
count of possessing an unregistered silencer, in violation of 26 U.S.C. § 5861(d). Under the then-
mandatory Sentencing Guidelines, Tiser was sentenced to twenty-one months imprisonment,
followed by a three-year term of supervised release. He was also ordered to pay a fine equal to the
costs of incarceration and supervision. Tiser appeals both the period of incarceration and his fine.
I.
On August 19, 2003, investigators from the Cass County Sheriff’s Department received a
warrant to search Robert Eugene Tiser’s property, after discovering an unlicensed auto-body repair
business operating out of his garage. After speaking with Tiser, investigators noticed a “cylinder-
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 04-2284
United States v. Tiser
type” object on his desk. Tiser eventually admitted that the item was a silencer that he had
manufactured. Tiser gave investigators permission to search the rest of his home, where they found
18 firearms in the basement and master bedroom. Two of the firearms were determined to have been
stolen. Tiser was indicted for knowingly possessing an unregistered silencer. He pleaded guilty to
one count of possessing the silencer, in violation of 26 U.S.C. § 5861(d). In the plea agreement,
Tiser did not admit guilt to any facts other than the possession of the silencer. At a hearing before
Magistrate Judge Carmody, Tiser’s attorney objected to the recommended Guideline sentencing
range based on the Supreme Court’s decision in Blakely v. Washington,
542 U.S. 296 (2004).
The sentencing hearing took place on October 6, 2004. At the hearing, the court calculated
Tiser’s base offense level for possessing an unregistered silencer in violation of § 5861(d) at 18.
U.S.S.G. § 2k2.1(a)(5). Although the presentence report recommended a four-point increase for
possession of two stolen firearms, the court rejected the increase because the Government could not
establish that Tiser knew the guns were stolen. Tiser’s offense level was reduced two points for
acceptance of responsibility and one point for entering a plea in a timely manner, and was thus
determined to be 15. Given his total offense level, and that he fell into Criminal History Category
I, Tiser’s Guideline imprisonment range fell between 18 to 24 months, and his fine range was
between $4,000 and $40,000.
After denying Tiser’s motion for a downward departure, the district court sentenced Tiser
to twenty-one months imprisonment. Additionally, he was ordered to pay a special assessment of
$100 and the “cost of incarceration.” Neither party objected to the fine. The district court also
imposed an alternative sentence of 21 months in the event the Guidelines were later determined to
-2-
No. 04-2284
United States v. Tiser
be advisory. The judgment of conviction, dated October 7, 2004, orders Tiser to pay a $100
assessment, $1,931.97 per month during the period of incarceration, $1,590.66 per month while in
a community- sanction center or community residence, and $292.21 per month while on supervised
release.
II.
A. Sentence
The district court imposed a sentence of 21 months, under the Sentencing Guidelines. The
district court also imposed the alternative sentence in accordance with the holding in United States
v. Koch, 383 F.3d 436 (6th Cir. en banc. 2004). At the time of sentencing, the district court did not
have the benefit of the Supreme Court’s opinion in United States v. Booker,
543 U.S. 220 (2005).
Because the district court did explain the basis upon which the alternative sentence rests, we vacate
the term of imprisonment, and remand to the district court for further proceedings.
B. Fine
The district court stated that, based on Tiser’s offense level and criminal history, the fine
range was between $4,000 and $40,000. At the sentencing hearing, the district court announced the
following fine: “The fine will be the cost of incarceration, which he can pay, but no further fine
because, quite frankly, I would like him to have assets so he can start his business again once he’s
released. Restitution is not an issue. A special assessment of $100.” Although the court did not
clarify what the cost of incarceration would be, it clearly stated that Tiser’s sentence was within the
applicable Guideline range. Neither party objected to the fine during the sentencing hearing.
-3-
No. 04-2284
United States v. Tiser
The judgment of conviction, entered the day after the sentencing hearing, provides that Tiser
must pay a $100 assessment, $1,931.97 per month during the period of incarceration, $1,590.66 per
month while in a community-sanction center or community residence, and $292.21 per month while
on supervised release. Tiser argues that should he serve his entire twenty-one month sentence in
prison, he will owe $40,571.37 for the cost of incarceration, and an additional $10,519.56 for the
cost of supervision. Even if Tiser served his entire sentence in a community-sanction center or
residence, he would owe $33,403.86 for the cost of incarceration, which combined with the cost of
supervision would exceed the $40,000 maximum articulated under the Guidelines.
Tiser argues that he did not have any notice that the district court would impose a fine above
the applicable Guideline range. Despite the Government’s arguments to the contrary, Tiser did not
waive his right to appeal the imposition of the fine because he failed to object at the trial court level.
See United States v. Tosca, 18 F.3d 1352, 1355 (6th Cir. 1994). Based on the district court’s
statements at sentencing, it was not clear that the amount of the fine could exceed the applicable
Guideline range. Because Tiser could not object that the fine would exceed the applicable Guideline
range at the sentencing hearing, he has not waived the right to appeal the fine. United States v.
Hickey,
917 F.2d 901, 906 (6th Cir. 1990).
The fine imposed by the district court was outside the Guideline range. U.S.S.G. §
5E1.2(c)(3). Because the district court did not provide notice that it was contemplating a fine that
fell outside that range, it ran afoul of Fed. R. Crim. P. 32. Burns v. United States, 501 U.S. 129, 137
(1991). Additionally, Tiser was not placed on notice that the Government would seek an upward
departure. Compare United States v. Callan,
22 F. App’x 434, 451 (6th Cir. 2001) (defendant had
-4-
No. 04-2284
United States v. Tiser
notice that the government would seek an upward departure); United States v. Ray, 20 F. App’x 340
(6th Cir. 2001) (same).
We review a violation of Rule 32 for harmless error. United States v. Carter, 374 F.3d 399,
408 (6th Cir. 2004), vacated on other grounds,
125 S. Ct. 1056; United States v. Darwich,
337 F.3d
645, 666 (6th Cir. 2003); United States v. Parrott,
148 F.3d 629, 633-34 (6th Cir. 1998). Remand
is required unless this Court is certain that the district court’s error was harmless, i.e., “any such
error did not affect the district court’s selection of the sentence imposed.” United States v.
Hazelwood,
398 F.3d 792, 801 (6th Cir. 2005) (citing Williams v. United States,
503 U.S. 193, 203
(1992)) (internal citations omitted). The record reflects that the district court believed it was
imposing a sentence within the Guideline limits – i.e., a fine between $4,000 and $40,000,-- stating“I
would like to have him have assets so he can start his business again once he’s released.” Given
these statements, it appears that the district court intended to impose a fine within the recommended
range, but ultimately did not do so. Therefore this Court cannot conclude that the district court’s
error was harmless and we vacate the fine and remand for resentencing.
III.
For the foregoing reasons, we VACATE the sentence and fine, and REMAND to the district
court for proceedings consistent with this opinion.
-5-
No. 04-2284
United States v. Tiser
RYAN, Circuit Judge, concurring. I concur in the court’s judgment vacating
the sentence originally imposed and remanding for a new sentence. I write separately only to
emphasize that this court has upheld alternative sentences given before United States v. Booker, 543
U.S. 220 (2005). See United States v. Chandler,
419 F.3d 484, 486 n.1 (6th Cir. 2005), and United
States v. Christopher,
415 F.3d 590, 593 (6th Cir. 2005).
-6-
