United States v. Christopher Russell , 560 F. App'x 115 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-4232
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UNITED STATES OF AMERICA
v.
CHRISTOPHER RUSSELL,
a/k/a Christopher Bishop,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2-09-cr-00672-002)
District Judge: Honorable Gene E.K. Pratter
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Submitted Under Third Circuit LAR 34.1(a)
March 28, 2014
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Before: FUENTES and SHWARTZ, Circuit Judges, and
ROSENTHAL, District Judge. *
(Filed: March 28, 2014)
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OPINION
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*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
SHWARTZ, Circuit Judge.
Christopher Russell pleaded guilty to charges arising from his participation in a
fraudulent check scheme. The District Court imposed a sentence of, among other things,
136 months’ imprisonment to be served consecutively to an existing state sentence.
Russell now appeals his sentence, arguing only that it was an abuse of discretion to run
his federal sentence consecutively to his state sentence. We will affirm.
I
As we write primarily for the benefit of the parties, we recite only the essential
facts and procedural history.
From September 2005 through November 2008, Russell participated in a bank
fraud and identity theft conspiracy. The conspirators obtained bank account and personal
information of bank customers from bank employees and an insurance company
employee. They then used that information to create false identification documents and
fraudulent checks in the names of bank customers. Russell recruited drug addicted check
runners to cash the checks, collected the proceeds from them, and paid them with illegal
drugs or money.
On October 15, 2009, a federal grand jury returned an indictment charging Russell
with one count of conspiracy in violation of 18 U.S.C. § 371; seven counts of bank fraud
and aiding and abetting in violation of 18 U.S.C. §§ 1344, 2; and 24 counts of aggravated
identity theft and aiding and abetting in violation of 18 U.S.C. §§ 1028A, 2. Russell
pleaded guilty to each count.
2
A sentencing hearing was held on November 15, 2011. At that time, Russell was
serving an aggregate state sentence of 63 to 126 years’ imprisonment for robbery,
aggravated assault, and burglary. The offense conduct for the state convictions occurred
between February and April 2009, and was unrelated to the federal offenses.
Russell argued that his federal sentence should run concurrently to his state
sentence since a consecutive sentence was essentially a life sentence. After considering
the relevant statutory and guideline provisions, including each of the factors listed in 18
U.S.C. § 3553(a), the Presentence Investigation Report, counsels’ arguments, and
statements from Russell, the District Court imposed a sentence of 136 months’
imprisonment, 1 five years of supervised release, $1,707,672 in restitution, and a special
assessment of $3,100. The District Court further ordered that the federal sentence be
served consecutively to the state sentence.
This appeal followed. 2
II
Russell only argues that the District Court abused its discretion by directing that
his federal sentence run consecutively to, not concurrently with, his state sentence.
Russell concedes that the District Court “considered [the] appropriate [sentencing]
1
The 136 month sentence resulted from a total offense level of 24 and a criminal
history category of VI. While this calls for an advisory Guidelines range of 100-125
months, Russell also faced 24-month consecutive sentences for each of the 23 counts on
which he was convicted for aggravated identity theft, exposing him to an “an effective
[advisory] guideline range of 124 months to 149 months,” or 652-677 months if each 24-
month sentence was imposed to run consecutively to one another.
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
3
factors,” Appellant Br. 6, but argues that the District Court nonetheless abused its
discretion because, given Russell’s age and the length of the state sentence, it effectively
imposed a life sentence.
We review the District Court’s sentence for an abuse of discretion. See United
States v. Dees, 467 F.3d 847, 852 (3d Cir. 2006); United States v. Saintville, 218 F.3d
246, 249 (3d Cir. 2000).
III
The statutory provision concerning consecutive and concurrent sentences
provides:
[I]f a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms may run
concurrently or consecutively, except that the terms may not run
consecutively for an attempt and for another offense that was the sole
objective of the attempt.
18 U.S.C. § 3584(a). Additionally, “[t]he court, in determining whether the terms
imposed are to be ordered to run concurrently or consecutively, shall consider, as to each
offense for which a term of imprisonment is being imposed, the factors set forth in [18
U.S.C. §] 3553(a).” 18 U.S.C. § 3584(b). Similarly, the policy statement in U.S.S.G.
§ 5G1.3(c) provides that, in a case “involving an undischarged term of imprisonment, the
sentence for the instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of imprisonment to achieve
a reasonable punishment for the instant offense.”
The District Court recognized its discretion to impose a consecutive or concurrent
sentence and set forth the reasons why it found a consecutive sentence was warranted.
4
As the District Court thoroughly explained at sentencing, Russell’s federal sentence,
including its consecutive nature, reflected the seriousness of his offenses and his role in
them, his “fearsome and significant” criminal history, 3 Supp. App. 33, the need to protect
the public from further crimes by him, and the need for him to be separately punished for
his federal crimes. Because the state convictions and the federal convictions were
entirely unrelated, Russell would avoid punishment for his federal crimes if his federal
sentence ran concurrently with his state sentence. In these circumstances, and mindful
that “the trial court [is] in the best position to determine the appropriate sentence in light
of the particular circumstances of the case,” United States v. Cooper, 437 F.3d 324, 330
(3d Cir. 2006), we hold that the District Court appropriately exercised its discretion by
ordering Russell’s federal sentence, which was at the lower end of the guidelines range,
to run consecutively to his state sentence. 4
IV
For the foregoing reasons, we will affirm.
3
The PSR reflects at least 20 arrests, resulting in at least 16 convictions for,
among other things, drug, robbery, and violent crimes.
4
This is especially true in a case like this, where the sentencing judge sentenced,
and hence was familiar with, the other conspirators.
5