United States v. Julian M. Herman

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2312
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Julian Montize Herman, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: November 14, 2006
Filed:November 17, 2006
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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Julian Montize Herman was charged with two counts of unlawfully possessing
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and g(9), after he sold a rifle to a
Sioux City, Iowa pawn shop in May 2004. Herman was prohibited by law from
possessing a firearm because he was a convicted felon and because he had a previous
domestic abuse misdemeanor conviction. He pled guilty to both counts, and the
district court1 sentenced him to 45 months to run consecutively to his undischarged
state sentences. Herman appeals, challenging the reasonableness of his sentence and
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
arguing that the two counts of firearm possession should have been merged. We
affirm the reasonableness of his sentence but remand to the district court to vacate one
count of conviction.
The district court calculated a total offense level of 12 with a criminal history
category of V, resulting in an advisory guideline range of 27-33 months. The court
concluded that an upward departure to criminal history category VI was warranted,
increasing Herman's advisory guideline range to 30-37 months. The court then made
an upward variance and sentenced Herman to 45 months imprisonment to run
consecutively to concurrent five and ten year state sentences for drug offenses. On
appeal Herman challenges the imposition of a consecutive sentence and argues that
the sentence is unreasonable.
We review a sentence for reasonableness in light of the § 3553(a) factors,
United States v. Booker, 543 U.S. 220, 260 (2005), applying an abuse of discretion
standard. See, e.g., United State v. Hacker, 450 F.3d 808, 811 (8th Cir. 2006)
(departure); United States v. Ture, 450 F.3d 352, 356 (8th Cir. 2006) (variance). A
sentencing court abuses its discretion if it "fails to consider a relevant factor that
should have received significant weight, gives significant weight to an improper or
irrelevant factor, or considers only the appropriate factors but commits a clear error
of judgment in weighing those factors." United States v. Long Soldier, 431 F.3d
1120, 1123 (8th Cir. 2005). Because Herman failed to object at the time of sentencing
to the imposition of a consecutive sentence, we review that decision for plain error
only. United States v. Franklin, 397 F.3d 604, 607 (8th Cir. 2005).
The district court departed upward because it found that Herman's criminal
history category substantially underrepresented the likelihood that he would commit
future criminal acts, noting that since he became an adult Herman has "committed
crimes in virtually every year of his life..." The district court’s upward variance of
8 months was based on the factors in 18 U.S.C. § 3553, especially Herman’s "high
degree of dangerousness." Given his criminal history, which includes three assaults
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and several crimes not included in his history score, the nature of his present crime,
and his pattern of violent conduct for which he has received lenient sentences in the
past, we cannot say that the district court abused its discretion. We find no plain error
in the decision to make his present sentence consecutive to his state sentence since he
would otherwise have faced no additional penalty as a result of his unlawful
possession of a firearm. See United States v. Mathis, 451 F.3d 939, 941 (8th Cir.
2006) (court has wide discretion under U.S.S.G. § 5G1.3 to order a federal sentence
to run consecutively with an undischarged state sentence).
Herman also challenges the district court's failure to merge his two counts of
conviction, citing United States v. Richardson, 439 F.3d 421 (8th Cir. 2006) (en banc)
(per curiam). In Richardson, we held that a defendant involved in a single incident
of possession may be prosecuted for only one charge of unlawful firearm possession
under 18 U.S.C. § 922(g), even if he fits within more than one prohibited class. Id.
at 422. Here, the government concedes that the record must be corrected to include
only one count of conviction.
Accordingly, we affirm Herman’s sentence but remand to the district court with
instructions to vacate one of his unlawful possession convictions.
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