October 27, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF… v. James Keith Russey

FILED
United States Court of Appeals
Tenth Circuit
October 27, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES KEITH RUSSEY,
Defendant - Appellant.
No. 20-6036
(D.C. No. 5:19-CR-00264-PRW-1)
(W.D. Okla.)
ORDER AND JUDGMENT*
Before HARTZ, SEYMOUR, and MURPHY, Circuit Judges.
I. Introduction
Defendant, James Keith Russey, appeals the sentence he received after
pleading guilty to being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). He raises two challenges in this appeal. First, he argues the
district court plainly erred when it calculated his base offense level by counting a
prior state drug conviction as a controlled substance offense. See USSG
§ 2K2.1(a). Second, he alleges the district court erroneously declined to make
* This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
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necessary factual findings before adding four levels to his base offense level
pursuant to USSG § 2K2.1(b)(6)(B).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Russey’s
sentence.
II. Background
On July 17, 2019, Russey was involved in a domestic disturbance with
Rachel Alvey. The incident report prepared by the Oklahoma City Police
Department is based on interviews with Alvey and states that the altercation
began when Alvey asked Russey to remove his belongings from her residence.
According to Alvey, Russey’s possessions, including a box containing a black
pistol, were on the bed when he arrived. By Alvey’s account, Russey removed
the firearm from the box and the two struggled over it. A shot was discharged
from the firearm during the struggle and the bullet entered the bedframe and wall.
Alvey told police Russey attempted to gain control of the pistol by biting her on
the left forearm and striking her on the left side of her head. Alvey relinquished
the firearm to Russey, and he left the residence with it.
Officers pursued Russey who attempted to evade them, first in his vehicle
and then on foot. He was eventually apprehended and officers located the
handgun in the front seat of his vehicle when they searched it. Based on the
incidents of July 17, Russey was charged in a one-count federal indictment with
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He
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was also charged in Oklahoma state court with (1) domestic assault with a
dangerous weapon, (2) aggravated attempting to elude a peace officer, (3) felon in
possession of a firearm, (4) possession of an offensive weapon while committing
a felony, and (5) domestic abuse (assault and battery).
In the federal prosecution, Russey pleaded guilty to the felon-in-possession
charge. The United States Probation Office prepared a presentence investigation
report (PSR), recommending application of a base offense level of twenty-six on
the grounds (1) the offense involved a semiautomatic firearm “capable of
accepting a large capacity magazine” and (2) Russey committed the offense
“subsequent to sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense.” USSG § 2K2.1(a)(1). The PSR
recommended a two-level enhancement under § 2K2.1(b)(4)(A) because the
firearm was stolen and a four-level enhancement under § 2K2.1(b)(6)(B) because
the offense of conviction was committed during the commission of another felony
offense, i.e., assault and battery with a dangerous weapon. After reducing
Russey’s offense level by three levels pursuant to §§ 3E1.1(a) & (b) for
acceptance of responsibility, the PSR arrived at a total offense level of twenty-
nine.
Russey objected to portions of the PSR. Relevant to the issue raised in this
appeal, he challenged the application of the four-level enhancement pursuant to
§ 2K2.1(b)(6)(B), asserting he did not possess the firearm in connection with
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another felony offense. According to Russey, Alvey was the aggressor in the
altercation and shot him when he attempted to take the firearm from her. He
further alleged he never pointed the firearm at Alvey or threatened her in any
way. In its response, the government advocated for application of the four-level
enhancement, arguing as follows:
Moreover, the application of § 2K2.1(b)(6)(B) does not hinge on
whether the defendant is the one who shot the gun. It applies if the
firearm facilitated or had the potential to facilitate another felony
offense. This includes Domestic Assault with a Dangerous Weapon,
Aggravated Attempting to Elude a Police Officer, Possession of an
Offensive Weapon While Committing a Felony, and Domestic Abuse
(Assault and Battery) After a Felony Conviction. Clearly, the
evidence in this case supports the application of the four level
enhancement in § 2K2.1(b)(6)(B) because the United States has
proven by a preponderance of the evidence that the defendant’s
possession of a firearm facilitated, or at the very least had the
potential of facilitating, any number of other felony offenses.
The government took the position any sentence less than the ten-year statutory
maximum would be insufficient to meet the sentencing goals embodied in 18
U.S.C. § 3553(a).
At sentencing, the district court overruled Russey’s objection to the four-
level enhancement, concluding his possession of the firearm met the requirements
of § 2K2.1(b)(6)(B) because it “facilitated, or had the potential of facilitating,
another felony offense or another offense.” U.S. Sent’g Guidelines Manual
§ 2K2.1(b)(6)(B) cmt. n.14(A). The district court stated its decision was
primarily based on an information filed in Oklahoma state court charging Russey
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with domestic assault with a dangerous weapon as a result of the altercation with
Alvey. Russey disputed the account in the information, arguing his defense in the
Oklahoma state proceeding “would be that the victim in this case is actually the
person that had the gun. And [he] . . . had no idea where the gun was when he
went into the residence.” Before overruling Russey’s objection, the district court
stated:
I do think that we have a perfectly adequate factual basis for the
application of this particular four-level increase. Everything I’ve
seen in this case, regardless of exactly the timing of the possession
of the firearm and regardless of who may or may not have been the
initial aggressor in this altercation, we do have a factual basis that
establishes that your client, I think, satisfies the elements of
domestic assault with a dangerous weapon under state law and
certainly even as we’ve characterized it in the presentence
investigation report, you know, there was, it appears, an assault and
battery here and a gun was involved.
After considering the parties’ other arguments and the extensive information in
the PSR, the district court arrived at an offense level of twenty-nine and a
criminal history category of III. The court sentenced Russey to 108 months’
incarceration, the low end of the advisory guidelines range of 108 to 135
months. 1
In this appeal, Russey challenges application of the four-level enhancement
and argues, for the first time, that the district court erred by using a prior state
1 Because the statutory maximum penalty for the offense of conviction is ten
years, the applicable range was actually 108 to 120 months. See 18 U.S.C.
§ 924(a)(2).
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felony conviction to calculate his base offense level.
III. Discussion
A. Base Offense Level Calculation
Russey challenges the calculation of his base offense level, arguing the
district court erroneously counted an Oklahoma drug conviction as a controlled
substance offense. See USSG § 2K2.1(a). He acknowledges he failed to raise
this argument below and, thus, it is reviewed for plain error. See United States v.
Faulkner, 950 F.3d 670, 672 (10th Cir. 2019). To prevail under the plain error
standard, Russey must establish “(1) an error occurred; (2) the error was plain;
(3) the error affected his substantial rights; and (4) the error seriously affected the
fairness, integrity, or public reputation of a judicial proceeding.” Id. (quotation
and alteration omitted).
Russey’s base offense level was calculated pursuant to USSG
§ 2K2.1(a)(1), which sets out a base offense level of twenty-six for a defendant
who possesses a gun with a large capacity magazine if he has at least two prior
felony convictions for either crimes of violence or controlled substance offenses.
At sentencing, Russey did not dispute the information in the PSR showing he was
convicted of a prior crime of violence and, relevant to this appeal, an Oklahoma
state controlled substance offense. Specifically, on January 31, 2018, Russey was
convicted of possessing a controlled dangerous substance with intent to distribute
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it, in violation of Okla. Stat. Ann. tit. 63, § 2-401(A)(1). Although Russey does
not dispute the fact of this conviction, he argues it does not qualify as a
controlled substance offense under § 2K2.1(a)(1).
According to Russey the definition of a “controlled substance offense” in
§ 4B1.2(b) 2 requires the substance possessed to be federally controlled under the
Controlled Substances Act (“CSA”). He further argues that at the time of his
drug conviction, Oklahoma law criminalized the possession of at least three
substances that are not controlled by the CSA. Thus, he asserts, Okla. Stat. Ann.
tit. 63, § 2-401 is overbroad and, because it is also indivisible under the
categorical approach, this court must assume his prior Oklahoma drug conviction
was for a substance not federally controlled. It is for this reason, he argues, the
conviction fails to qualify as a “controlled substance offense” for purposes of
§ 2K2.1(a)(1).
Russey’s claim for relief fails at the first part of the plain error test. This
court has recently rejected the argument that a prior state drug offense only
qualifies as a controlled substance offense under § 4B1.2(b) if the state
2 The term “controlled substance offense” in § 2K2.1 “has the meaning
given that term in § 4B1.2(b).” U.S. Sent’g Guidelines Manual § 2K2.1 cmt. n.1.
A “controlled substance offense” is defined by the relevant Guideline as: “an
offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.” USSG § 4B1.2(b).
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criminalizes the same controlled substances identified in the CSA. United States
v. Jones, No. 20-6112, 2021 WL 4851812 (10th Cir. 2021). Accordingly, the
district court did not err when it calculated Russey’s base offense level by
treating his prior Oklahoma drug conviction as a predicate offense under
§ 2K2.1(a)(3). 3
B. Four-Level Enhancement
Russey also argues the district court erred by applying the four-level
enhancement set out in § 2K2.1(b)(B). The parties disagree over the nature of the
alleged error. According to Russey, the district court erred by declining to make
required factual findings before concluding the enhancement applied. It is
unclear whether he advocates for de novo or clear error review of the issue. The
government characterizes Russey’s challenge as procedural in nature. It argues
the issue is reviewed only for plain error because Russey never raised a separate
objection to the district court’s alleged failure to resolve the disputed facts.
Russey counters that the plain-error cases on which the government relies are
inapposite because the district court did not wholly fail to rule but, instead,
reached the erroneous conclusion that the factual dispute was inconsequential
and, thus, need not be resolved. See Fed. R. Crim. P. 32(i)(3)(B) (stating a
sentencing court “must” rule on “any disputed portion of the presentence report
3 An error is plain if it is “clear or obvious at the time of the appeal.”
United States v. Salas, 889 F.3d 681, 686-87 (10th Cir. 2018) (quotation omitted).
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or other controverted matter . . . or determine that a ruling is unnecessary . . .
because the matter will not affect sentencing”). It is unnecessary to resolve this
disagreement over the standard of review because there was no error in the
application of the four-level enhancement even under the do novo standard.
At the sentencing hearing, the parties discussed one of the pending charges
against Russey in Oklahoma state court: domestic assault with a dangerous
weapon. Russey told the district court his defense in that matter would be that
Alvey was the person who first possessed the firearm. Russey also told the court
he did not know the gun was underneath a pile of clothes in the bedroom when he
arrived at the residence. Russey summed up his argument as follows: “[I]t’s all
in how the gun first appeared in the residence, which is the crux of the four-point
enhancement that the Court has before it today.” The district court disagreed
with that synopsis, concluding the four-level enhancement applied “regardless of
exactly the timing of the possession of the firearm and regardless of who may or
may not have been the initial aggressor.”
On appeal, Russey asserts the district court was required to determine who
first possessed the firearm and who was the initial aggressor because both issues
are crucial to the question of whether his subsequent possession of the firearm
facilitated the commission of the felony offense of domestic assault with a
dangerous weapon. His appellate argument is similar to the one he made to the
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district court:
[C]ritical to any determination of whether Mr. Russey committed the
Oklahoma crime of domestic assault with a deadly weapon is the
question of when Mr. Russey came to possess the firearm. If he took
the firearm out of its box and started to point it at Ms. Alvey, as she
claimed, then he was guilty of domestic assault with a dangerous
weapon. But if she took the gun out of its box, and he merely took it
from her and then from the house without ever threatening her with it
or pointing it at her, as he claimed, then he was not guilty.
Russey’s appellate argument unwittingly highlights the actual “crux of the
four-point enhancement.” And, as the district court concluded, it is not whether
Russey or Alvey first possessed the firearm or whether Russey knew the firearm
was on the bed when he entered the residence. It is whether Russey, while in
possession of the firearm, assaulted Alvey. See Okla. Stat. Ann. tit. 21,
§ 644(D)(1) (“Any person who, with intent to do bodily harm and without
justifiable or excusable cause, commits any assault, battery, or assault and battery
upon an intimate partner or a family or household member as defined by Section
60.1 of Title 22 of the Oklahoma Statutes with any sharp or dangerous weapon,
upon conviction, is guilty of domestic assault or domestic assault and battery with
a dangerous weapon which shall be a felony . . . .”); id. § 641 (“An assault is any
willful and unlawful attempt or offer with force or violence to do a corporal hurt
to another.”). True, Russey denied engaging in behavior that satisfies the
elements of domestic assault with a dangerous weapon, but the district court
expressly stated it relied on the entire record to support its finding. That record
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included police reports of interviews with Alvey, Russey, and a witness to the
altercation; the description of the incident set out in the PSR; and the undisputed
fact Russey was charged in Oklahoma state court with the crime of domestic
assault with a dangerous weapon.
Russey does not fully explain why the timing of the possession is critical to
the determination of whether the government proved by a preponderance of the
evidence that he used the firearm in connection with the crime of domestic
assault with a deadly weapon. Presumably, Russey could have wrested the
firearm from Alvey and then threatened to use it to harm her. 4 Under that
scenario, it is immaterial that Alvey possessed the weapon first. It would appear,
therefore, that Russey’s real complaint is that the district court did not find his
version of the altercation credible, not that the court declined to resolve an
isolated factual dispute. And, having reviewed the appellate record, we can
discern no clear error in the district court’s finding that the government met its
burden of proving the four-level enhancement was appropriate. 5
4 In a related appellate argument directed at the separate Oklahoma crime of
domestic assault and battery, Okla. Stat. Ann. tit. 21, § 644(C), Russey states that
his version of the facts, if accepted, would be a complete defense to that crime.
Russey does not, however, direct this court to any part of the record showing this
argument was made to the district court as to the crime of domestic assault with a
dangerous weapon.
5 Even assuming the district court erred in declining to resolve the factual
dispute identified by Russey, any error in applying the four-level enhancement
(continued...)
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IV. Conclusion
The judgment of the district court is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
5 (...continued)
was harmless. We take judicial notice of the public record in Case No. CF-2019-
3397, District Court of Oklahoma County, Oklahoma, which shows that Russey
pleaded guilty to the charge of domestic assault with a dangerous weapon on
June 21, 2021. See
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=C
F-2019-3397&cmid=3798519 (last visited Oct. 20, 2021). We further note
Russey never disputed the facts set out in the PSR indicating he left Alvey’s
residence with the firearm and refused to pull his vehicle over when pursued by
police. Officers later found the firearm in the vehicle. Based on those facts, he
was charged with aggravated attempting to elude a peace officer, an additional
Oklahoma felony to which he pleaded guilty on June 21, 2021. See id.
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