United States v. Menzies , 339 F. App'x 371 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2009
No. 08-20549
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUSSELL MENZIES, also known as John Russell Kincaid, also known as James
O’Sullivan,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-67-2
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Russell Menzies appeals the 120-month term of imprisonment imposed by
the district court following his plea of guilty to being a felon in possession of a
firearm. The sentence was imposed following this court’s order granting the
Government’s motion to remand for resentencing. The 120-month sentence
represented both an upward departure under the Sentencing Guidelines and an
upward variance from the Guidelines sentencing range. The district court based
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-20549
the sentence primarily on Menzies’s extensive and violent criminal history and
his repetitive and illegal association with firearms. Menzies challenges the
sentence as substantively unreasonable.
Although “a district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range[,]” the court “may not
presume that the Guidelines range is reasonable.” Gall v. United States, 128
S. Ct. 586, 596-97 (2007). Instead, the court must “make an individualized
assessment based on the facts presented.” Id. at 597. The district court thus did
not err by disregarding the sentencing range set forth in the Guidelines.
The district court also did not err by relying upon factors it considered
under U.S.S.G. § 4A1.3 in order to impose a non-Guidelines sentence. See
United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The court was free
to conclude that the applicable Guidelines range gave too little weight to
Menzies’s extremely violent history and the need for its sentence to provide just
punishment and protect the public. See United States Williams, 517 F.3d 801,
809 (5th Cir. 2008); 18 U.S.C. § 3553(a). Given that Menzies’s criminal conduct
was more akin to a Category V or VI offender rather than a Category I offender,
the district court also had a “significant justification” for its chosen sentence.
See Gall, 128 S. Ct. at 597. Finally, we perceive no error in the district court’s
finding that Menzies had a longstanding, repetitive, and illegal association with
firearms. Such finding was amply supported by the record.
AFFIRMED.
2