US v. Lonnie Russell, No. 09-4887 (4th Cir. 2010)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4887 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. LONNIE EDWARD RUSSELL, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-cr-00393-BO-1) Argued: October 29, 2010 Before TRAXLER, Judges. Chief Judge, Decided: and DUNCAN and November 19, 2010 KEENAN, Circuit Vacated and remanded by unpublished per curiam opinion. ARGUED: John Stuart Bruce, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Debra Carroll Graves, Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. MayParker, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, Lauren H. Brenna, Research and Writing Attorneys, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Lonnie Edward Russell pleaded guilty to possession with intent to distribute cocaine, see 21 U.S.C. § 841(a)(1), and possession of a firearm after having been convicted of a felony, see 18 U.S.C. § 922(g)(1). The presentence report recommended that Russell be sentenced to a mandatory minimum sentence of 15 years under the Armed Career Criminal Act ( ACCA ), see 18 U.S.C. § 924(e), based upon his previous state court convictions for breaking and entering three separate homes. One of the predicate offenses arose out of a crime that occurred on July 6, 1999. The remaining two predicate offenses arose out of crimes that occurred on June 22, 1999. In August 2009, the district court concluded that the June 22, 1999, offenses were not committed on occasions different from one another, 18 U.S.C. § 924(e)(1), and declined to apply the ACCA enhancement. that the June 22, In doing so, the district court found 1999, predicate offenses were coincident break-ins that occurred in sequence on the same day, at or about the same time, in or about the same place. added). J.A. 69 (emphasis The government appealed. After the district court sentenced Russell, we issued two decisions in similar cases, clarifying the factors that courts must consider in determining whether predicate crimes were committed on occasions different from one another for purposes 3 of § 924(e)(1), as well as the government s burden to establish such predicate offenses. See United States v. Carr, 592 F.3d 636 (4th Cir. 2010), cert. denied, ___ U.S. ___, 79 U.S.L.W. 3197 (Oct. 4, 2010); United States v. Tucker, 603 F.3d 260 (4th Cir. 2010). Although consideration is no whether one the prior simultaneously or sequentially. In light of the factor is dispositive, crimes were one committed See Carr, 592 F.3d at 642. inconsistency in the district court s conclusion and the fact that neither the district court nor the parties had the benefit of our decisions in Carr and Tucker, we vacate the sentence precedents. If the and remand resentencing can government for under demonstrate, those based upon Shepard-approved documents, see Shepard v. United States, 544 U.S. 13, 16 (2005), that the June 22, 1999, convictions were committed on district court States v. (vacating occasions can different apply Maroquin-Bran, and remanding the 587 for from ACCA F.3d one enhancement. 214, resentencing 4 another, 218 the See (4th where then United Cir. 2009) the district court did not have the benefit of a proper interpretation by this court of a sentencing enhancement provision). * VACATED AND REMANDED * We deny Russell s motion to dismiss the government s appeal. Unlike in the case of United States v. Guevara, 941 F.2d 1299 (4th Cir. 1991), the government explicitly retained its right to appeal in its plea agreement with Russell. 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
