United States v. Russette

325 F. App'x 598

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2009
• Docket: No. 08-30261
• Status: Published

Opinion

MEMORANDUM

**

Leon Russell Russette appeals from the 76-month sentence imposed following his guilty-plea conviction for assault with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand for resentenc-ing.

Russette contends that his sentence is substantively unreasonable. In the instant case, the district court applied a four-level enhancement for the use of a dangerous weapon pursuant to U.S.S.G. § 2A2.2(b)(2)(B) and a three-level enhancement because the victim sustained bodily injury pursuant to U.S.S.G. § 2A2.2(b)(3)(A). Russette does not challenge the applicability of these enhancements under the Guidelines. He contends, however, that a sentence at the high end of the Guidelines range is unreasonable in light of the factors in 18 U.S.C. § 3553(a), including the nature of the offense and his history and circumstances. We agree that a sentence at the high end of the Guidelines range overstates the seriousness of the offense, and, in light of the totality of the circumstances, we conclude that the sentence is substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Accordingly, we vacate Russette’s 76-month sentence and remand with instructions for the district court to resentence Russette after considering whether the Guidelines range overstates the seriousness of the offense given the weapon used and the apparently minimal injury.

VACATED; REMANDED for resen-tencing.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.