600 F. App'x 438
6th Cir.2015Background
- In July 2010 law enforcement confronted Damien Russ in a rear parking lot; he fled and officers observed a shiny object at his waistband. A short time later a silver .38 revolver with an obliterated serial number and six rounds was found in brush along the path Russ took.
- Russ was tried twice for being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); his first conviction and supervised-release revocation were reversed on unrelated grounds.
- At the second trial Russ testified and denied having a firearm or recognizing the officers as law enforcement; a jury convicted him again.
- At resentencing the district court applied a two-level obstruction-of-justice enhancement (USSG § 3C1.1) based on the court’s finding that Russ willfully gave false testimony, producing a higher Guidelines range; the court then imposed an upward variance to the statutory maximum (120 months).
- The court also revoked supervised release again and imposed a consecutive sentence longer than the first sentencing. Russ appealed, arguing (1) insufficiency of the evidence of possession, (2) judicial vindictiveness for receiving harsher sentences after prevailing on the first appeal, (3) procedural error in the obstruction enhancement, and (4) substantive unreasonableness of the sentence.
Issues
| Issue | Plaintiff's Argument (Russ) | Defendant's Argument (Government/District Court) | Held |
|---|---|---|---|
| Sufficiency of the evidence that Russ possessed the firearm | The government failed to show a connection: no one saw him discard the gun, no fingerprints/DNA, dog scent unreliable, gun could have been dropped by someone else | Officers saw a shiny object at his waistband as he ran; he fled, was not seen to drop anything, was found nearby without a gun; gun found minutes later along his flight path | Affirmed — record contains direct and circumstantial evidence supporting possession; review for manifest miscarriage of justice (forfeited claim) fails |
| Judicial vindictiveness from harsher sentences after successful appeal | Second sentencing was harsher because judge was vindictive for Russ having prevailed earlier | Presumption of vindictiveness arises but is rebutted by objective information (Russ’s perjured trial testimony and corrected Guidelines calculation for supervised-release) | Affirmed — presumption rebutted; no due-process violation |
| Procedural correctness of obstruction-of-justice enhancement (USSG § 3C1.1) | Enhancement improperly applied because court did not identify perjurious testimony with required specificity and did not expressly find materiality | District court identified specific testimony it deemed false, made required findings of willfulness and falsity; materiality can be decided by the appellate court and the false testimony was material to whether he fled to avoid firearm discovery | Affirmed — enhancement properly applied; materiality present as a matter of law |
| Substantive reasonableness of upward variance to statutory maximum | Variance to 120 months is disproportionate for a garden‑variety possession, creates unwarranted disparity, and was influenced by improper factors | District court considered § 3553(a) factors, Russ’s long/violent criminal history, lack of remorse/rehabilitation, and underrepresented history in Guidelines; court provided detailed reasons for the degree of variance | Affirmed — within abuse-of-discretion standard; not substantively unreasonable |
Key Cases Cited
- North Carolina v. Pearce, 395 U.S. 711 (1969) (presumption against vindictiveness when harsher sentence imposed after retrial)
- United States v. Goodwin, 457 U.S. 368 (1982) (presumption of vindictiveness can be rebutted by objective information in the record)
- Wasman v. United States, 468 U.S. 559 (1984) (judge may rely on conduct or events after first sentencing to justify increased sentence)
- United States v. Dunnigan, 507 U.S. 87 (1993) (definition and prerequisites for finding perjury supporting obstruction enhancement)
- Gall v. United States, 552 U.S. 38 (2007) (standard for substantive-reasonableness review of sentences)