United States v. Russell

United States Court of Appeals for the Fifth Circuit · 2025 · Criminal Law

Criminal LawSentencing GuidelinesCrime of ViolenceCategorical ApproachPlain Error ReviewU.S.S.G. § 2K2.1(a)(1)U.S.S.G. § 4B1.2(a)crime of violence

Facts

Police responded to a domestic disturbance involving Russell and his girlfriend and found a handgun in the car in which they were sitting. Russell later admitted possessing the firearm and pleaded guilty to being a felon in possession. His PSR assigned a base offense level of 26 under U.S.S.G. § 2K2.1(a)(1) based on two prior felony crimes of violence and possession of a firearm capable of accepting a large-capacity magazine. On appeal, Russell challenged only the use of his 2017 Tennessee aggravated-assault conviction as a crime of violence.

Issue

Whether the district court plainly erred in classifying Russell's 2017 Tennessee aggravated-assault conviction as a crime of violence under the Sentencing Guidelines. More specifically, the question was whether Russell showed a clear or obvious error by arguing that the Tennessee statute reaches conduct causing only mental harm and therefore extends beyond the Guidelines' definition of a crime of violence.

Rule

On plain-error review, a defendant must show a clear or obvious error affecting substantial rights. When a prior conviction arises under a divisible statute, courts use the modified categorical approach to determine which offense was involved; if the conviction records do not reveal the specific alternative, courts revert to the categorical approach and test the least culpable conduct. A defendant claiming that a state statute sweeps more broadly than a generic crime of violence must show a realistic probability of that broader application, not just a theoretical possibility, by identifying actual state cases applying the statute in that manner.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In federal court in Dallas, Andre Morrow pleads guilty to possessing a firearm as a felon. At sentencing, the judge treats Andre’s prior conviction under a divisible Oklahoma assault statute as a crime of violence; Andre did not object, and on appeal he argues the statute is overbroad because its definition of injury includes impairment of memory, but he cites no Oklahoma cases applying the statute to purely mental harm.

Under the governing rule, what is the strongest basis for affirming the sentence?

Explanation. On plain-error review, the defendant must show a clear or obvious error. When arguing a statute is broader than a crime of violence, he cannot rely on abstract textual possibilities alone; he must show a realistic probability of broader application by pointing to actual state cases applying the statute that way. Because Andre cited no Oklahoma cases involving purely mental harm, he has not shown clear or obvious error.