United States Court of Appeals

For the Eighth Circuit

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No. 15-3050

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Bryan Terrell

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: April 15, 2016

 Filed: May 16, 2016

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Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Bryan Terrell pled guilty to being a felon in possession of a firearm and

ammunition, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him

to 100 months in prison, and Terrell appeals. We vacate his sentence and remand for

resentencing.
Terrell pled guilty to one count of felon in possession of a firearm after police

recovered two pistols and ammunition from a car in which he was riding. See 18

U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing the district court found that

Terrell's firearm possession also violated Iowa Code § 724.4(1) which prohibits

"knowingly carr[ying] or transport[ing] in a vehicle a pistol or revolver." The court

therefore applied a four level enhancement for his possession of a firearm "in

connection with another felony offense." See U.S.S.G. § 2K2.1(b)(6)(B). In its

guideline calculation the court arrived at a total offense level of 25, which combined

with Terrell's criminal history category of V, should have yielded an advisory

guideline range of 100–120 months. The district court mistakenly stated that the

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applicable guideline range was 110–120 months.

After concluding that application of the four level enhancement under

guideline § 2K2.1(b)(6)(B) was particularly harsh under the circumstances of this

case, the district court varied downward from the bottom of the guideline range and

sentenced Terrell to 100 months. Terrell appeals.

Terrell first argues that the district court erred by applying a four level

enhancement for possession of a firearm in connection with another felony offense

because his violation of Iowa Code § 724.4(1) was based on the same conduct

underlying his federal offense. See U.S.S.G. § 2K2.1 cmt. n.14(C). He contendsthat

application of this Iowa enhancement therefore "double punishes the act of

possessing a firearm." As Terrell concedes, however, this argument is foreclosed by

our decision in United States v. Walker, 771 F.3d 449 (8th Cir. 2014). We explained

in Walker that a violation of § 724.4(1) would support the application of such an

enhancement because a defendant does not "automatically commit the [Iowa] felony

when he violate[s] 18 U.S.C. § 922(g) by possessing a firearm as a felon." Id. at

120 months is the statutory maximum sentence under 18 U.S.C. § 924(a)(2). 1

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452–53. The district court's application of this enhancement should therefore be

affirmed.

Terrell also argues that the district court committed procedural error by

sentencing him using an incorrect guideline range of 110–120 months. Our review

is for plain error because Terrell did not raise this objection below. United States v.

Stokes, 750 F.3d 767, 771 (8th Cir. 2014). To establish plain error, Terrell must

show that "(1) there was error, (2) the error was plain, and (3) the error affected his

substantial rights." Id. We will remand for resentencing if the error "seriously affects

the fairness, integrity or public reputation of judicial proceedings." United States v.

Weaver, 161 F.3d 528, 530 (8th Cir. 1998) (alteration omitted). Here, the parties

agree that the district court plainly erred and that remand is necessary. 

The government concedes that the correct guideline range for Terrell is

100–120 months and that the district court intended to vary downward from the

applicable range. Because the court misstated the guideline range, however, it did not

actually vary downward as intended. We agree with the parties that this was plain

error which affected Terrell'ssubstantial rights since "there is a reasonable probability

that [he] would have received a lighter sentence but for the error." Stokes, 750 F.3d

at 771. Because "the public's confidence in the judicial process would be undermined

. . . when an increased sentence results from an obvious guideline [ ] error," United

States v. Warren, 361 F.3d 1055, 1059 (8th Cir. 2004), we vacate Terrell's sentence

and remand for resentencing.

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