United States v. Jerrill Russell

Fifth Circuit

United States v. Jerrill Russell

561 F. App'x 394

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 8, 2014

Docket13-10374

StatusUnpublished

This text of 561 F. App'x 394 (United States v. Jerrill Russell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Jerrill Russell, 561 F. App'x 394 (5th Cir. 2014).

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Opinion

PER CURIAM: *

Jerrill Kenyon Russell pleaded guilty to one count of possession of a firearm by a *395 convicted felon. The district court sentenced Russell to 180 months in prison pursuant to the Armed Career Criminal Act (ACCA). As he did in the district court, Russell argues that his prior Texas conviction for burglary of a building was not a crime punishable by imprisonment for a term exceeding one year and could not be used to support application of the ACCA enhancement in 18 U.S.C. § 924(e)(2)(B)(i)-(ii) and U.S.S.G. § 4B1.4. We review “the district court’s interpretation and application of the [ACCA] de novo.” United States v. Harrimon, 568 F.3d 531, 533 (5th Cir.2009).

Russell concedes that he was convicted of burglary of a building, an offense that is a state jail felony and punishable by imprisonment for no more than two years and no less than 180 days. Texas Penal Code § 12.44(a) provides discretion, however, for a court to punish a defendant convicted of a state jail felony by imposing a sentence as if the offense were a Class A misdemeanor. Russell’s sole argument is that because he was sentenced under § 12.44(a), his offense was not a felony because it was not punishable by a term of imprisonment exceeding one year. In Harrimon, we held that a conviction was a “violent felony” under 18 U.S.C. § 924(e)(2)(B) because the offense’s statutory maximum was two years in prison, even though the sentencing court exercised its discretion to allow the offense to be punished as a misdemeanor under § 12.44. Harrimon, 568 F.3d at 533 n. 3. Russell’s argument is without merit.

The Government’s motion for summary affirmance is GRANTED. The motion for an extension of time in which to file a brief is DENIED. The judgment of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *395 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Jerrill Kenyon Russell pleaded guilty to one count of possession of a firearm by a *395 convicted felon. The district court sentenced Russell to 180 months in prison pursuant to the Armed Career Criminal Act (ACCA). As he did in the district court, Russell argues that his prior Texas conviction for burglary of a building was not a crime punishable by imprisonment for a term exceeding one year and could not be used to support application of the ACCA enhancement in 18 U.S.C. § 924(e)(2)(B)(i)-(ii) and U.S.S.G. § 4B1.4. We review “the district court’s interpretation and application of the [ACCA] de novo.” United States v. Harrimon, 568 F.3d 531, 533 (5th Cir.2009).

Russell concedes that he was convicted of burglary of a building, an offense that is a state jail felony and punishable by imprisonment for no more than two years and no less than 180 days. Texas Penal Code § 12.44(a) provides discretion, however, for a court to punish a defendant convicted of a state jail felony by imposing a sentence as if the offense were a Class A misdemeanor. Russell’s sole argument is that because he was sentenced under § 12.44(a), his offense was not a felony because it was not punishable by a term of imprisonment exceeding one year. In Harrimon, we held that a conviction was a “violent felony” under 18 U.S.C. § 924(e)(2)(B) because the offense’s statutory maximum was two years in prison, even though the sentencing court exercised its discretion to allow the offense to be punished as a misdemeanor under § 12.44. Harrimon, 568 F.3d at 533 n. 3. Russell’s argument is without merit.

The Government’s motion for summary affirmance is GRANTED. The motion for an extension of time in which to file a brief is DENIED. The judgment of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *395 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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561 F. App'x 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jerrill-russell-ca5-2014.

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