UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4811
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONY LORENZO RUSSELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:06-cr-00127-001)
Submitted: April 4, 2007 Decided: May 14, 2007
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Mary E.
Maguire, Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Sara E.
Flannery, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2006, Tony Lorenzo Russell was indicted for assault
with a dangerous weapon, in violation of 18 U.S.C.A. § 113(a)(3)
(West 2000 & Supp. 2006) (count one), depredation of government
property, in violation of 18 U.S.C. § 1361 (2000) (count two), and
possession of alcohol by a person under age twenty-one, in
violation of 18 U.S.C. § 13 (2000), assimilating Va. Code Ann.
§ 4.1-305 (Cumm. Supp. 2006) (count three). A jury acquitted
Russell as to count one, determining that he acted in self-defense,
and the district court granted a motion of acquittal as to count
two. The jury, nonetheless, found Russell guilty as to count
three. The district court sentenced Russell to twelve months in
prison* on the possession charge and also sentenced Russell to one
year of supervised release and a $500 fine. Russell timely
appealed, arguing that his sentence was unreasonable and that the
district court failed to give him the appropriate sentence credits.
Russell and the Government agree that no federal
sentencing guideline is applicable to Russell’s offense. They
disagree, however, as to the applicable standard of appellate
review for a sentence imposed under such circumstances. Russell
asserts that a sentence for which there is no sentencing guideline
should be reviewed generally for reasonableness, in light of United
*
Virginia Code Annotated § 4.1-305, provides for a maximum
twelve-month sentence for possession of alcohol by a person under
the age of twenty-one.
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States v. Booker, 543 U.S. 220, 261 (2005). The Government
contends a sentence for an offense for which there is no applicable
guideline range should be reviewed under the “plainly unreasonable”
standard enunciated in United States v. Crudup, 461 F.3d 433, 438
(4th Cir. 2006).
Because we conclude that Russell’s sentence passes muster
under either test, it is unnecessary in this case to resolve the
appropriate standard of appellate review for a direct appeal of a
conviction for an offense for which no sentencing guideline is
applicable. Even if the “plainly unreasonable” standard advanced
by the Government applies, this court must first decide whether the
sentence is unreasonable. This inquiry is conducted using the
considerations outlined in United States v. Moreland, 437 F.3d 424,
431-32 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006), for review
of a sentence for which guidelines are applicable. Specifically,
we must consider “the extent to which the sentence . . . comports
with the various, and sometimes competing, goals of § 3553(a).”
Id. at 433; see also U.S. Sentencing Guidelines Manual § 2X5.1,
comment. (backg’d) (2005).
We conclude that the district court properly considered
the 18 U.S.C.A. § 3353(a) (Supp. 2006) factors in sentencing
Russell. Furthermore, as Russell was on probation at the time he
committed the possession of alcohol offense and the attendant
assault charge stemmed from his use of alcohol, we conclude that
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Russell’s sentence was reasonable. Thus, even applying the more
lenient standard of appellate review advocated by Russell, we see
no reason to second-guess the district court’s sentencing judgment.
Further, we conclude that the district court properly awarded
Russell credit towards his sentence for time served prior to
sentencing, as evidenced by the district court’s statement at
sentencing that Russell “will be given credit for time served to
date,” and as indicated by the judgment.
Based on the foregoing, Russell’s conviction and sentence
are affirmed. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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