United States v. Bryan Terrell

Filing

OPINION FILED - THE COURT: William Jay Riley, Roger L. Wollman and Diana E. Murphy AUTHORING JUDGE:Diana E. Murphy (PUBLISHED) [4399038] [15-3050]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3050
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bryan Terrell
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: April 15, 2016
Filed: May 16, 2016
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Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Bryan Terrell pled guilty to being a felon in possession of a firearm and
ammunition, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him
to 100 months in prison, and Terrell appeals. We vacate his sentence and remand for
resentencing.

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Terrell pled guilty to one count of felon in possession of a firearm after police
recovered two pistols and ammunition from a car in which he was riding. See 18
U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing the district court found that
Terrell's firearm possession also violated Iowa Code § 724.4(1) which prohibits
"knowingly carr[ying] or transport[ing] in a vehicle a pistol or revolver." The court
therefore applied a four level enhancement for his possession of a firearm "in
connection with another felony offense." See U.S.S.G. § 2K2.1(b)(6)(B). In its
guideline calculation the court arrived at a total offense level of 25, which combined
with Terrell's criminal history category of V, should have yielded an advisory
guideline range of 100–120 months.1 The district court mistakenly stated that the
applicable guideline range was 110–120 months.
After concluding that application of the four level enhancement under
guideline § 2K2.1(b)(6)(B) was particularly harsh under the circumstances of this
case, the district court varied downward from the bottom of the guideline range and
sentenced Terrell to 100 months. Terrell appeals.
Terrell first argues that the district court erred by applying a four level
enhancement for possession of a firearm in connection with another felony offense
because his violation of Iowa Code § 724.4(1) was based on the same conduct
underlying his federal offense. See U.S.S.G. § 2K2.1 cmt. n.14(C). He contends that
application of this Iowa enhancement therefore "double punishes the act of
possessing a firearm." As Terrell concedes, however, this argument is foreclosed by
our decision in United States v. Walker, 771 F.3d 449 (8th Cir. 2014). We explained
in Walker that a violation of § 724.4(1) would support the application of such an
enhancement because a defendant does not "automatically commit the [Iowa] felony
when he violate[s] 18 U.S.C. § 922(g) by possessing a firearm as a felon." Id. at

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120 months is the statutory maximum sentence under 18 U.S.C. § 924(a)(2).
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452–53. The district court's application of this enhancement should therefore be
affirmed.
Terrell also argues that the district court committed procedural error by
sentencing him using an incorrect guideline range of 110–120 months. Our review
is for plain error because Terrell did not raise this objection below. United States v.
Stokes, 750 F.3d 767, 771 (8th Cir. 2014). To establish plain error, Terrell must
show that "(1) there was error, (2) the error was plain, and (3) the error affected his
substantial rights." Id. We will remand for resentencing if the error "seriously affects
the fairness, integrity or public reputation of judicial proceedings." United States v.
Weaver, 161 F.3d 528, 530 (8th Cir. 1998) (alteration omitted). Here, the parties
agree that the district court plainly erred and that remand is necessary.
The government concedes that the correct guideline range for Terrell is
100–120 months and that the district court intended to vary downward from the
applicable range. Because the court misstated the guideline range, however, it did not
actually vary downward as intended. We agree with the parties that this was plain
error which affected Terrell's substantial rights since "there is a reasonable probability
that [he] would have received a lighter sentence but for the error." Stokes, 750 F.3d
at 771. Because "the public's confidence in the judicial process would be undermined
. . . when an increased sentence results from an obvious guideline [ ] error," United
States v. Warren, 361 F.3d 1055, 1059 (8th Cir. 2004), we vacate Terrell's sentence
and remand for resentencing.
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