Tate challenges the district court’s application of U.S.S.G. § 2B1.1, which adds offense
levels for certain theft crimes based on the amount of loss attributable to the offense. The district
court found a loss of $38,768; under U.S.S.G. § 2B1.1(a), a loss between $30,000 and $70,000
added six levels, yielding a final offense level of ten. Combined with Tate’s criminal history, that
subjected him to a guideline range of 24-30 months imprisonment. The district court sentenced Tate
to thirty months in prison and three years of supervised release and ordered restitution of $4,848.
If the district court had found a loss of $10,000 to $30,000, his offense level would have been eight
instead of ten, and the resultant guidelines range would have been 18-24 months. First, Tate objects
to the inclusion of a $6,700 “intended loss” for checks confiscated from him, his wife, and two
relatives – checks that they never tried to cash. Second, Tate objects to the inclusion of $2,968.01
in charges made on a stolen credit card used by his wife. We find no error in the district court’s loss
calculation (and consequently, no error in its calculation of Tate’s offense level).
Tate also challenges his custodial sentence under Blakely v. Washington, __ U.S. __, 124
S.Ct. 2531 (2004), contending that he has a Sixth Amendment right to have a jury determine the
amount of loss beyond a reasonable doubt. This argument is foreclosed by Booker v. United States,
__ U.S. __, 125 S.Ct. 738 (2005), which permits a district court judge to make such a factual finding
so long as the Guidelines are not read to require the judge to increase the sentence based on that
finding. See United States v. Harris, 397 F.3d 404, 411 (6
Cir. 2005) (“Booker teaches that there
is no Sixth Amendment violation when a sentencing judge exercises genuine discretion within a
clearly defined statutory range.”) (citing Booker, 125 S.Ct. at 750 (Stevens, J., for the Court)). The
Court accomplished this by excising 18 U.S.C. § 3553(b)(1), the provision that made the Guidelines
mandatory. See Harris, 397 F.3d at 410 (citing Booker, 125 S.Ct. at 757 (Breyer, J., for the Court)).