United States v. Russian

FILED
United States Court of Appeals
Tenth Circuit
February 21, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3213
JAMES D. RUSSIAN,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 6:14-CR-10018-EFM-1)
Daniel T. Hansmeier, Assistant Federal Public Defender (with Melody Brannon,
Federal Public Defender, on the briefs), Office the Kansas Federal Public
Defender, Topeka, Kansas, for Appellant.
Jared S. Maag, Assistant United States Attorney (with Thomas E. Beall, Acting
United States Attorney, and Alan G. Metzger, Assistant United States Attorney,
on the brief), Wichita, Kansas, for Appellee.
Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.
TYMKOVICH, Chief Judge.
James Russian was charged with four drug- and gun-related offenses.
Before trial, Russian filed a motion to suppress evidence obtained from the search
of two cell phones seized at the time of his arrest, arguing the search warrant was
invalid for lack of particularity. The district court denied the motion, concluding
even if the warrant was invalid, the good faith exception to the exclusionary rule
applied.
At trial, text messages and photographs from the phones were introduced
against Russian. After the jury convicted Russian on all counts, the court
imposed a total sentence of 137 months’ imprisonment. Russian challenges the
admission of the evidence obtained from the cell phone searches, as well as the
sentences imposed on several of the counts.
We affirm Russian’s convictions. The officers conducting the search acted
in objectively reasonable reliance on the warrant, and even if that were not the
case, any Fourth Amendment error was harmless beyond a reasonable doubt. As
for Russian’s sentences, we remand for resentencing. The government does not
dispute the district court erred in relying on an improperly calculated guidelines
range for the sentences on the contested counts.
I. Background
Missouri law enforcement responded to a 911 call reporting that two
women were being threatened by a man with a machete and a handgun. The man
was identified as James Russian. When officers arrived at the scene, a high-speed
car chase ensued, which crossed state lines and ended in Kansas when Russian
lost control of his vehicle and spun to a stop. Russian exited his vehicle, jumped
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a fence, and fled into the woods, with law enforcement officers in pursuit. A
short time later, Russian was found hiding under some brush and was taken into
custody. One of the officers, Deputy Chris Wilson, searched Russian and found a
red and black Samsung cell phone in one of his pockets, which Deputy Wilson
then seized. After Russian was arrested, Deputy Wilson also searched his
abandoned vehicle and found, among other things, a black Samsung cell phone.
Deputy Wilson applied for a search warrant with the state district court.
The search warrant application identified three places to be searched: (1) a red
and black Samsung cell phone found in Russian’s possession at the time of his
arrest, (2) a black Samsung cell phone taken from Russian’s car at the time of his
arrest, and (3) Russian’s residence. The application also requested permission to
seize “[t]ext messages, phone numbers, phone calls sent and received, any data
contained within the phone or on any removable media device within the phone
and Images contributing to the possession or sale of any illegal drug and drug
paraphernalia.” R. Supp. Vol. II. at 1.
The state district court issued a search warrant that referenced Deputy
Wilson’s affidavit and warrant application and identified the crimes being
investigated and items to be seized, including “cell phones that could be used to
facilitate the commission of the crimes.” Id. at 4–5. The warrant also described
the location to be searched (Russian’s apartment), but it failed to authorize the
search of cell phones already in law enforcement custody or the seizure of any
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cell phone data. After obtaining the warrant, Deputy Wilson searched Russian’s
Samsung cell phones seized at the time of the arrest and recovered text messages,
phone numbers, a phone log of calls sent and received, and photographs.
Russian was charged with four drug- and gun-related offenses. Count 1
charged possession of a Ruger 9mm firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1). Count 2 was the same statutory violation, but predicated on
possession of ammunition. Count 3 charged possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Count
4 alleged possession of marijuana with intent to distribute, in violation of 21
U.S.C. § 841(a). Before trial, Russian moved to suppress the evidence obtained
from Deputy Wilson’s search of the cell phones, arguing, among other things, that
the warrant lacked particularity.
The district court denied the motion. Although the court found the
particularity question was a close call, it upheld the search under the good faith
exception to the exclusionary rule. Deputy Wilson had testified he believed he
was authorized to search the phones, because the warrant mentioned cell phones
in general, and because the application for the warrant requested authority to
search both of the phones and provided a list of data to be seized. There was no
evidence law enforcement had acted in bad faith, and the warrant was supported
by probable cause. Thus, the court reasoned, suppressing the evidence would not
serve the purposes of the exclusionary rule.
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At trial, in addition to evidence obtained from the search of Russian’s home
and automobile, the government introduced text messages and photographs
obtained from the cell phones seized at the time of Russian’s arrest. The text
messages established Russian knew one of the women who had called 911 when
Russian threatened her; owned a gun; and was dealing in methamphetamine. The
photographs, which were taken at Russian’s home, depicted a green leafy
substance resembling marijuana. The jury ultimately convicted Russian on all
four counts as charged.
Before sentencing, the Presentence Report (PSR) calculated Russian’s
guidelines sentencing range. The PSR took into account a fifteen-year-old
conviction for conspiracy to commit aggravated battery and arrived at a
guidelines range of 46 to 57 months’ imprisonment. The district court varied
upward from that range and imposed a total sentence of 137 months’
imprisonment: 76 months on Counts 1, 2, and 4, concurrent with each other and
consecutive to a 60-month sentence on Count 3.
II. Analysis
Russian makes three arguments on appeal. He contends the district court
erred (1) in denying his motion to suppress evidence seized from a search of the
cell phones; (2) in relying on an erroneously calculated guidelines range to
impose 76-month sentences on Counts 1, 2, and 4; and (3) in imposing a sentence
higher than the statutory maximum on Count 4. We consider each in turn.
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A. Unreasonable Search and Seizure
Russian first argues his convictions should be reversed, because the district
court erred in denying his motion to suppress evidence seized from the two cell
phones. Specifically, he contends the search warrant was invalid for lack of
particularity and was so facially deficient that the good faith exception to the
exclusionary rule cannot save the search. Although we agree with Russian that
the warrant was invalid, we affirm his convictions because we conclude the good
faith exception applies. And even if we were to assume the district court erred in
denying Russian’s motion, any error was harmless beyond a reasonable doubt.
The Fourth Amendment protects the right of citizens to be free from
unreasonable searches and seizures. U.S. Const. amend. IV. In the criminal law
context, evidence seized in violation of the Fourth Amendment may not be
admitted against a defendant in a criminal prosecution, subject to certain
exceptions. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). But Fourth
Amendment violations are still subject to the harmless error rule. Chambers v.
Maroney, 399 U.S. 42, 53 (1970); Chapman v. California, 386 U.S. 18, 22 (1967)
(“[T]here may be some constitutional errors which in the setting of a particular
case are so unimportant and insignificant that they may, consistent with the
Federal Constitution, be deemed harmless, not requiring the automatic reversal of
the conviction.”). For a constitutional error to be held harmless, “the court must
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be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at
24.
We review de novo the district court’s conclusion that even if the warrant
was invalid for lack of particularity, the good faith exception to the exclusionary
rule applies to save Deputy Wilson’s search of Russian’s cell phones. See United
States v. Burgess, 576 F.3d 1078, 1087 (10th Cir.), cert. denied 558 U.S. 1087(2009) (“The ultimate question of reasonableness under the Fourth Amendment is
a legal conclusion that we review de novo.”). In doing so, “[w]e consider the
totality of the circumstances and view the evidence in the light most favorable to
the government.” United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005).
1. Particularity Requirement
Russian first argues the search warrant was invalid, because it failed to
describe with particularity the place to be searched (the two Samsung cell phones)
and the things to be seized (the cell phone data). We agree for several reasons.
In protecting against unreasonable searches and seizures, the Fourth
Amendment mandates two requirements for search warrants: a warrant must be
supported by probable cause, and it must describe with particularity “the place to
be searched, and the persons or things to be seized.” U.S. Const. amend. IV;
Groh v. Ramirez, 540 U.S. 551, 557 (2004). Because the Fourth Amendment by
its terms “requires particularity in the warrant, not in the supporting documents,”
an application for a warrant which meets the particularity requirement “does not
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save the warrant from its facial invalidity.” Id. (emphasis removed). And
“[a]lthough an executing officer’s knowledge may be a curing factor,” knowledge
alone is insufficient to satisfy the particularity requirement. United States v.
Williamson, 1 F.3d 1134, 1136 (10th Cir. 1993).
In the context of cell phones and cell phone data, the Supreme Court
recently held in Riley v. California that a warrant is generally required to search
digital information on a cell phone, even when the phone is seized incident to a
lawful arrest. 134 S. Ct. 2473, 2493 (2014). We have not yet had occasion to
address the effect of Riley, but we have previously recognized the importance of
the particularity requirement as it pertains to searches of personal computers,
because computers “can contain (or at least permit access to) our diaries,
calendars, files, and correspondence” and therefore may be “especially vulnerable
to a worrisome exploratory rummaging by the government.” United States v.
Christie, 717 F.3d 1156, 1164 (10th Cir. 2013).
We have thus drawn a “recognizable line” in considering how much
particularity is required for computer searches. Id. On the one hand, we have
invalidated warrants authorizing computer searches “where we could discern no
limiting principle: where, for example, the warrant permitted a search of ‘“any
and all” information, data, devices, programs, and other materials,’” or “all
computer and non-computer equipment and written materials in [a defendant’s]
house.” Id. at 1164–65 (first quoting United States v. Otero, 563 F.3d 1127,
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1132–33 (10th Cir. 2009); then quoting Mink v. Knox, 613 F.3d 995, 1011 (10th
Cir. 2010)). On the other hand, we have stated, “warrants may pass the
particularity test if they limit their scope either ‘to evidence of specific federal
crimes or to specific types of material.’” Christie, 717 F.3d at 1165 (quoting
United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) (alteration
incorporated)).
This approach can be extended to searches of cell phones, which the
Supreme Court has characterized as “minicomputers that also happen to have the
capacity to be used as a telephone.” See Riley, 134 S. Ct. at 2489. And here, we
have little difficulty concluding the warrant on which Deputy Wilson relied to
search Russian’s phones was invalid for lack of particularity. 1 Although the
application requested authorization to search the two Samsung cell phones law
1
Russian also urges us to adopt a search methodology requirement for
warrants involving cell phone data, meaning law enforcement would be required
to specify an ex ante search protocol before a warrant could issue. We need not
reach this argument, because we can easily conclude this warrant failed
particularity. But we note that, like other circuits, we have previously declined to
require a search protocol for computer searches, since courts are better able to
assess the reasonableness of search protocols ex post, “in light of the totality of
the circumstances” and “where evidence and experts from both sides can be
entertained and examined.” See Christie, 717 F.3d at 1166–67; see also United
States v. Richards, 659 F.3d 527, 538 (6th Cir. 2011); United States v. Cartier,
543 F.3d 442, 447–48 (8th Cir. 2008). And, in the context of computer searches
at least, a leading Fourth Amendment scholar has opined that Supreme Court
precedent “point[s] to the conclusion that the Fourth Amendment does not permit
ex ante restrictions on the execution of computer warrants.” Orin S. Kerr, Ex
Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241, 1260–71
(2010).
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enforcement had seized at the time of Russian’s arrest and certain data that might
be found on them, the warrant itself merely authorized a search of Russian’s
residence and seizure of any cell phones found inside. The warrant did not
identify either of the phones that were already in law enforcement’s custody, nor
did it specify what material (e.g., text messages, photos, or call logs) law
enforcement was authorized to seize.
Accordingly, we agree with Russian that the warrant failed to meet the
Fourth Amendment’s particularity requirement.
2. Good Faith Exception to the Exclusionary Rule
Although the warrant was invalid, we can also consider whether the good
faith exception to the exclusionary rule applies. Russian contends it does not,
arguing the warrant was so facially deficient that Deputy Wilson could not
reasonably have presumed it to be valid. We disagree, because we find Deputy
Wilson’s reliance on the warrant was objectively reasonable under the
circumstances.
Even if a warrant fails to satisfy the Fourth Amendment’s particularity
requirement, the exclusionary rule should not be applied to suppress evidence
obtained by officers acting in objectively reasonable reliance on a search warrant
issued by a detached and neutral magistrate judge that is ultimately deemed
invalid. United States v. Leon, 468 U.S. 897, 922 (1984). The rationale for
Leon’s good faith exception is the underlying purpose of the exclusionary
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rule—namely, to deter police misconduct. When an officer acts in good faith,
there is nothing to deter. Id. at 918. Thus, “the suppression of evidence obtained
pursuant to a warrant should be ordered only in the unusual cases in which
exclusion will further the purposes of the exclusionary rule.” Riccardi, 405 F.3d
at 863.
But the officer’s reliance on the defective warrant still must be objectively
reasonable: the government is not entitled to the good faith exception when a
warrant is “so facially deficient—i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing officers cannot reasonably
presume it to be valid.” Leon, 468 U.S. at 922–23. “The test is an objective one
that asks ‘whether a reasonably well trained officer would have known that the
search was illegal despite the magistrate’s authorization.’” Otero, 563 F.3d at
1134 (quoting Leon, 468 U.S. at 922 n.23). “Not every deficient warrant,
however, will be so deficient that an officer would lack an objectively reasonable
basis for relying upon it.” Otero, 563 F.3d at 1134. “Even if the court finds the
warrant to be facially invalid . . . it ‘must also review the text of the warrant and
the circumstances of the search to ascertain whether the agents might have
reasonably presumed it to be valid.’” Riccardi, 405 F.3d at 683 (quoting United
States v. Leary, 846 F.2d 592, 607 (10th Cir. 1988)).
Here, several factors lead us to conclude Deputy Wilson’s reliance on the
warrant was objectively reasonable. First, Deputy Wilson prepared the warrant
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application and supporting affidavit, in which he carefully identified each
Samsung cell phone by color and model number and specified which types of data
he had probable cause to believe would be found therein. Although a warrant
application or affidavit cannot save a warrant from facial invalidity, it can support
a finding of good faith, particularly where, as here, the officer who prepared the
application or affidavit also executed the search. See United States v. Simpson,
152 F.3d 1241, 1248 (10th Cir. 1998) (“[T]he affidavit certainly supports the
district court’s conclusion that Deputy Johnson [the affiant] in good faith believed
he was obtaining a warrant to search Simpson’s residence as well as his person.”);
see also United States v. Tracey, 597 F.3d 140, 153 (3d Cir. 2010) (“We also note
that the application of the good faith exception is appropriate because [Officer]
Holler, who drafted the narrower affidavit and was aware of its limits, led the
search team at Tracey’s home.”).
Second, in addition to signing the warrant itself, the magistrate judge
signed Deputy Wilson’s warrant application and affidavit, which contained a
particularized description of the Samsung cell phones and cell phone data. The
magistrate judge’s approval of the application and affidavit—and reference to
both documents in the first paragraph of the warrant—further supports the
objective reasonableness of Deputy Wilson’s reliance on the warrant. Cf. United
States v. Allen, 625 F.3d 830, 839 (5th Cir. 2010) (reasoning “the executing
officer who prepared the warrant, the affidavit and the attachment . . . had
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additional objective reason to believe the warrant was valid,” because the
magistrate judge “signed not only the warrant, but also the affidavit, to which the
list of items to be seized was attached”). Courts applying the good faith
exception “have concluded that, at least when the magistrate neither intimates he
has made any changes in the warrant nor engages in conduct making it appear he
has made such changes, the affiant-officer is entitled to assume that what the
magistrate approved is precisely what he requested.” 1 Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2012). Thus,
it was reasonable for Deputy Wilson to rely on the warrant to search the cell
phones already in law enforcement’s custody and seize certain cell phone data
related to the crimes listed in the warrant.
Third, Deputy Wilson confined his search to the evidence specified in the
warrant application and affidavit, further indicating he acted in good faith and in
objectively reasonable reliance on what he believed was a valid warrant. Cf.
Otero, 563 F.3d at 1136 (“The inspectors in this case had reason to believe the
warrant was valid, considered themselves authorized to search only for evidence
of crimes for which they had probable cause, and conducted their search
accordingly.”); Riccardi, 405 F.3d at 864 (“The officers remained within the
terms of the warrant as well as the affidavit, and did not conduct a ‘fishing
expedition’ beyond the scope of the authorized investigation.”).
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Finally, excluding the challenged evidence would not serve the underlying
purpose of the exclusionary rule. As the Supreme Court has emphasized, “the
exclusionary rule is not an individual right,” Herring v. United States, 555 U.S.
135, 141 (2009), but rather “a judicially fashioned remedy whose focus is not on
restoring the victim to his rightful position but on deterring police officers from
knowingly violating the Constitution,” Allen, 625 F.3d at 836; see also Otero, 563
F.3d at 1133. As detailed above, “[a]t each step of the investigation,” Deputy
Wilson “made every effort to comply with the law.” See Burgess, 576 F.3d at
1091. “[T]he exclusionary rule is designed to deter police misconduct rather than
to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916 (emphasis
added). And since judges and magistrates are “neutral judicial officers” with “no
stake in the outcome of particular criminal prosecutions,” the exclusionary
sanction “cannot be expected significantly to deter them.” Id. at 917.
Accordingly, given the lack of misconduct by law enforcement and Deputy
Wilson’s reliance on a warrant he reasonably believed to be valid, we decline to
apply the exclusionary rule to the evidence seized from Russian’s phones.
None of Russian’s arguments persuade us to reach a different conclusion.
First, Russian contends Deputy Wilson’s subjective knowledge of the place to be
searched does not render his reliance on the deficient warrant objectively
reasonable. But as we have already explained, a number of other factors
demonstrate the objective reasonableness of Deputy Wilson’s belief the warrant
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was valid. Russian next argues that because Deputy Wilson specifically requested
a search of cell phone data, he should have known the warrant did not authorize
such a search when it referred only to “cell phones that could be used to facilitate
the commission of the crimes.” R. Supp. Vol. II at 4–5. Russian claims no
reasonable officer would read this brief reference to cell phones as permitting a
search of the phones in law enforcement’s custody or their data. But this
argument also fails in light of the circumstances, including the magistrate judge’s
signature on the warrant application and affidavit.
In sum, the district court did not err in applying the good faith exception to
uphold the search of Russian’s cell phones.
3. Harmless Error Rule
But even if we were to assume the district court erred in denying Russian’s
motion to suppress and the good faith exception did not save the warrant, we
would still find any error was harmless beyond a reasonable doubt.
Most constitutional errors, including Fourth Amendment violations, do not
require reversal of a conviction if the court concludes the error was harmless
beyond a reasonable doubt. Chambers, 399 U.S. at 52–53. The government bears
the burden of making this showing. United States v. Miller, 111 F.3d 747, 751
(10th Cir. 1997). “In cases that are decided by a jury, a court will only find a
constitutional error harmless if the court can conclude ‘beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’” United
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States v. Benard, 680 F.3d 1206, 1213 (10th Cir. 2012) (quoting Chapman, 386
U.S. at 24). Put differently, we must determine “whether the guilty verdict
actually rendered in this trial was surely unattributable to the error.” Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993) (emphasis in original). In making this
determination, we consider the alleged error “in the context of other evidence
presented in order to determine whether its admission was harmless beyond a
reasonable doubt.” United States v. Mullikin, 758 F.3d 1209, 1211 (10th Cir.
2014) (quoting Arizona v. Fulminante, 499 U.S. 279, 308 (1991)).
Russian contends any error was not harmless beyond a reasonable doubt,
because the evidence obtained from the cell phones, which included photographs
of a substance resembling marijuana and text messages containing offensive and
violent language, “was damning and inflammatory, and was woven throughout the
trial.” Aplt. Rep. Br. at 13. Russian is correct that the prejudicial effect of
potentially wrongfully admitted evidence is one consideration in the harmless
error analysis. See United States v. Glass, 128 F.3d 1398, 1403 (10th Cir. 1997).
But we still must consider the challenged evidence in the context of the evidence
properly admitted at trial. See Mullikin, 758 F.3d at 1211. And, after reviewing
the unchallenged evidence introduced at trial during the government’s case in
chief, we conclude the government has met its burden of demonstrating any error
in admitting the evidence obtained from the search of Russian’s two cell phones
was harmless.
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To begin, the jury’s guilty verdict on Counts 1 and 2 was surely not
attributable to the evidence seized from the cell phones. Counts 1 and 2, unlawful
possession of a firearm or ammunition in or affecting interstate commerce,
required the government to prove beyond a reasonable doubt that Russian had
been convicted of a felony and then knowingly possessed a firearm or ammunition
that had moved in interstate commerce. In the superseding indictment, the
government alleged Russian possessed a Ruger P95 9 mm handgun, along with
eighty-two live cartridges of 9 mm ammunition and eighteen live cartridges of
20-gauge shotgun ammunition, which had been transported in interstate
commerce. At trial, Deputy Wilson testified that during the lawful search of
Russian’s residence, law enforcement discovered a Ruger P95 9 mm handgun,
loaded with twelve rounds of ammunition, in the kitchen. Two loaded 9 mm
magazines and additional 9 mm ammunition, along with a box of shotgun shells,
were discovered on Russian’s dresser. In light of this evidence, the admission of
the cell phone evidence, if erroneous, was harmless beyond a reasonable doubt
regarding the guilty verdicts on Counts 1 and 2.
The same is true for Count 4, possession with intent to distribute marijuana,
which required the government to prove beyond a reasonable doubt that Russian
knowingly or intentionally possessed marijuana with the intent to distribute it.
During the lawful search of Russian’s residence, officers recovered a wealth of
physical evidence that was admitted at trial, including forty-six plastic baggies
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containing marijuana, with a name, address, phone number, and “This 1’s on me”
written on each baggie. R. Vol. III at 177–80. The baggies also contained a half
book of matches and rolling papers. Additionally, officers found nine identically
marked baggies, which contained marijuana, matchbooks, and rolling papers, in
Russian’s abandoned vehicle on the night of his arrest. Digital scales were
discovered in Russian’s bathroom and in his kitchen. And a ledger with entries
concerning distribution of a controlled substance was discovered on Russian’s
dresser. Officers also found $23,700 in cash, most of which was hidden inside an
air vent in Russian’s residence.
In addition to this unchallenged physical evidence, a witness whose name
appeared on the baggies testified at trial that he had never seen the plastic baggies
of marijuana found in Russian’s vehicle and residence, he did not spell his name
as it was spelled on the baggies, he was unfamiliar with the address listed on the
baggies, and his handwriting was not on the baggies. He also testified that he had
previously been convicted on a misdemeanor involving marijuana. And one of
the women involved in the 911 call testified about the events leading up to that
911 call, which led to Russian’s arrest. Pertinently, she testified Russian had
given her some methamphetamine to sell, accused her of stealing it, and
eventually threatened her with a machete and a handgun.
All of this unchallenged evidence and trial testimony establishes that, even
if the text messages and photographs were admitted in error, the jury’s guilty
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verdict on Count 4 was not attributable to the cell phone evidence. There was
overwhelming evidence Russian knowingly or intentionally possessed marijuana
with the intent to distribute it, and the strength of this evidence minimizes any
prejudice Russian may have suffered as a result of the cell phone evidence. Cf.
Glass, 128 F.3d at 1403 (“To hold an error of constitutional dimension harmless,
we must conclude ‘the properly admitted evidence of guilt is so overwhelming,
and the prejudicial effect of the [purported error] is so insignificant by
comparison, that it is clear beyond a reasonable doubt that the improper use of the
admission was harmless error.’”) (quoting Schneble v. Florida, 405 U.S. 427, 430
(1972)).
Finally, and for similar reasons, any error was also harmless regarding
Count 3. For Count 3, the government was required to prove beyond a reasonable
doubt that Russian knowingly possessed a firearm in furtherance of a drug-
trafficking crime. Specifically, the government had to prove Russian “committed
the crime of possession with intent to distribute marijuana, as charged in Count 4”
and that he “possessed a firearm in furtherance of this crime.” R. Vol. III at
378–79. As the court instructed the jury, “in furtherance of” means “for the
purpose of assisting in, promoting, accomplishing, advancing, or achieving the
goal or objective of the underlying offense.” Id. at 379. The mere presence of a
firearm at the scene of a drug-trafficking crime is insufficient to meet this
element. Instead, the following non-exhaustive factors can indicate a firearm was
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possessed in furtherance of a drug-trafficking crime: “(1) the type of criminal
activity that is being conducted; (2) accessibility of the firearm; (3) the type of
firearm; (4) whether the firearm is stolen; (5) the status of the possession
(legitimate or illegal); (6) whether the firearm is loaded; (7) the time and
circumstances under which the firearm is found, and (8) proximity to drugs or
drug profits.” Id.
As detailed above, evidence lawfully obtained and admitted at trial
established Russian illegally possessed a loaded 9 mm handgun, and this handgun
was located on his kitchen cabinet, just above the largest source of marijuana
found in Russian’s residence—that is, the forty-six baggies found in the space
below the kitchen sink. A large amount of cash was also discovered in Russian’s
residence. And there was overwhelming evidence supporting Russian’s
conviction on Count 4, as discussed above. All of this evidence reduces the
possible prejudicial effect of the cell phone evidence, and it establishes the jury’s
guilty verdict on Count 3 was not attributable to evidence that may have been
erroneously admitted.
In sum, the lawfully obtained and admitted evidence and trial testimony
elicited by the government on each count charged and the comparative lack of
prejudicial effect of the evidence obtained from the cell phones lead us to
conclude the jury’s guilty verdicts on all counts were not attributable to the
admission of the evidence seized during the search of Russian’s cell phones.
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Thus, even if the district court erred in denying Russian’s motion to suppress, any
error was harmless beyond a reasonable doubt.
We therefore affirm Russian’s convictions.
B. Improperly Calculated Guidelines Range
Russian next argues the district court plainly erred in relying on an
improperly calculated guidelines range for the sentences imposed on Counts 1, 2,
and 4. Specifically, he contends the PSR relied on a fifteen-year-old felony
conviction that was too old to score in calculating a guidelines range of 46 to 57
months, from which the district court varied upwards to impose a 76-month
sentence on Counts 1, 2, and 4. Properly calculated, the range would have been
24 to 30 months. The government does not dispute this issue, and thus we
remand for resentencing on Counts 1, 2, and 4.
C. Sentence Above Statutory Maximum
Finally, Russian argues the district court plainly erred in imposing a 76-
month sentence on Count 4, since the statutory maximum for that offense is 60
months. Again, the government does not dispute the issue. Accordingly, we
remand for resentencing on Count 4 in accordance with the statutory maximum.
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III. Conclusion
For the foregoing reasons, we AFFIRM Russian’s convictions but
REMAND for resentencing on Counts 1, 2, and 4.
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