United States v. Timothy Russell

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0330n.06
No. 08-5167 FILED
May 18, 2011
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE WESTERN
TIMOTHY RUSSELL, DISTRICT OF TENNESSEE
Defendant-Appellant.
/
Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. Defendant-appellant Timothy Russell appeals his
sentence on grounds of procedural unreasonableness. Russell pleaded guilty to one count of being
a felon in possession of a firearm. At sentencing, the district court applied the Guidelines cross-
reference for using a firearm in connection with the commission or attempted commission of
kidnapping, U.S.S.G. §§ 2K2.1(c), 2X1.1, based primarily on the testimony of one of Russell’s
victims, Takenya Coleman, whom the court found to be “a very credible witness.” The court found
that Russell held a gun to Coleman’s brother and forced him into the house, held a gun to Coleman
and her brother and forced them into the kitchen, and stayed in the house between one and two hours.
The kidnapping cross-reference resulted in a base offense level of thirty-two. U.S.S.G. § 2A4.1(a).
*
The Honorable James L. Graham, Senior United States District Judge for the Southern District of Ohio, sitting
by designation.
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United States v. Russell
Page 2
After a two-level enhancement for use of dangerous weapon, id. § 2A4.1(b)(3), and a three-level
reduction for acceptance of responsibility, id. § 3E1.1(b), Russell’s total offense level was thirty-one.
With a criminal history category of III, his sentencing range was eleven years and three months to
fourteen years of imprisonment. However, the district court repeatedly recognized throughout the
sentencing hearing that the statutory maximum term of imprisonment for a felon-in-possession
conviction is ten years, 18 U.S.C. § 924(a)(2), and sentenced Russell to ten years accordingly.
On appeal, Russell does not challenge the kidnapping cross-reference, enhancements, or
reductions. Rather, he claims that his sentence is procedurally unreasonable because the statutory
maximum sentence was the proper Guideline range and the district court should not have calculated
the otherwise applicable sentencing range. We review this claim for plain error because Russell did
not object after the district court issued the sentence and asked defense counsel if he “kn[e]w of any
reason why the sentence should not be imposed today[.]” See United States v. Berry, 565 F.3d 332,
340 (6th Cir. 2009) (citing United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004)). Therefore,
reversal is only proper if Russell identifies a clear or obvious error that affected his rights and the
fairness, integrity, or public reputation of the judicial proceedings. See id. (citing United States v.
Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).
Russell’s claim lacks merit. According to the Guidelines, when a statutory-maximum
sentence falls below the minimum of the sentencing range as it does here, the statutory maximum
is the Guideline sentence. See U.S.S.G. § 5G1.1(a). By addressing this situation where a sentencing
range is above the statutory maximum, section 5G1.1(a) expressly contemplates that a district court
should simultaneously calculate the applicable sentencing range and consider any statutory
No. 08-5167
United States v. Russell
Page 3
maximum sentence. Furthermore, we have approved this practice in the past. See United States v.
Rahal, 191 F.3d 642, 646 (6th Cir. 1999); United States v. Barnes, 49 F.3d 1144, 1150 (6th Cir.
1995).
A district court does not err by calculating a sentencing range according to the Guidelines
before then considering a statutory maximum sentence. Here, the district court calculated Russell’s
sentencing range according to the Guidelines and then acknowledged several times that Russell
could not be sentenced above the statutory maximum of ten years. The district court then sentenced
Russell to ten years, which satisfied the statutory maximum and was the Guideline sentence in
accordance with section 5G1.1(a). Accordingly, the district court did not commit plain error and we
AFFIRM the judgment of the district court.