United States of America v. Russell Menzies, also known as JOHN RUSSELL KINCAID, also known as JAMES O’SULLIVAN

* This opinion supersedes the opinion filed on October 10, 2007; that opinion has been
withdrawn as it was filed in error.
** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20004*
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RUSSELL MENZIES, also known as
JOHN RUSSELL KINCAID, also known as
JAMES O’SULLIVAN
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
(4:05-CR-67-2)
Before JOLLY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:**
Defendant-Appellant Russell Menzies appeals the statutory maximum
sentence of 120 months imprisonment imposed following his guilty-plea
conviction for possession of a firearm by a convicted felon. On appeal, Menzies
advanced four claims of sentencing error: miscalculation of his Guidelines
United States Court of Appeals
Fifth Circuit
F I L E D
October 12, 2007
Charles R. Fulbruge III
Clerk

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No. 06-20004
2
offense level under U.S.S.G. § 2K2.1(b)(1)(C), based on the court’s finding that
he possessed between eight and twelve firearms as a convicted felon; the
sentencing court incorrectly included two prior felony convictions in calculating
his base offense level under U.S.S.G. § 2K1.2(a)(2) and incorrectly determined
his criminal history category at IV; the sentencing court abused its discretion in
rejecting his request for a downward adjustment for acceptance of responsibility
under U.S.S.G. § 3E1.1; and the sentence imposed was unreasonable. Two
months after Menzies filed his appellate brief, the government filed a motion to
vacate his sentence and remand for resentencing, which a motion panel of this
court ordered carried with the case on appeal. In support of its motion, the
government conceded that the district court misapplied U.S.S.G. § 2K1.2(a)(2),
but the government did not address the remaining charges to the district court’s
Guidelines calculation raised by Menzies on appeal.
We have reviewed the briefs of the parties and the record on appeal, as
well as the government’s extensive motion to vacate and the appendices thereto,
and we conclude that the government’s position is principled, well reasoned, and
meritorious. As both the government and Menzies seek vacatur of his sentence,
we grant the government’s motion, vacate Menzies’s sentence, and remand the
case to the district court for resentencing.
MOTION GRANTED; SENTENCE VACATED; CASE REMANDED FOR
RESENTENCING.

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