U.S. v. Rutledge, 93-6596

• Decision Date: 01 September 1994
• Docket Number: No. 93-6596,93-6596
• Citation: 33 F.3d 671
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee RUTLEDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 671

33 F.3d 671

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee RUTLEDGE, Defendant-Appellant.

No. 93-6596.

United States Court of Appeals Sixth Circuit.

Argued Aug. 11, 1994.

Decided Sept. 1, 1994.

Gary Humble, Asst. U.S. Atty., Chattanooga, TN (argued and briefed), for plaintiff-appellee.

Perry H. Piper, Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, TN (argued and briefed), for defendant-appellant.

Before: MARTIN, NELSON, and DAUGHTREY, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

Convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g) and 924(e), and sentenced to almost 25 years in prison, the defendant appeals both his conviction and his sentence. The conviction is challenged on the ground that the trial court erred in overruling an objection to "improper and inflammatory remarks" made in the prosecutor's closing argument. The sentence is challenged on the ground that the trial court erred in enhancing the defendant's guideline sentence range on the basis of a crime (aggravated assault or reckless endangerment) for which the defendant was never prosecuted and of which he contends he was not guilty. Concluding that the district court committed no error in either respect, we shall affirm the conviction and sentence.

I

The defendant, Jimmy Lee Rutledge, was indicted on three counts of being a felon in possession of a firearm. Mr. Rutledge stipulated at the start of his jury trial that he had previously been convicted of rape, second-degree murder, and aggravated assault. The court so informed the jury.

Notwithstanding these multiple felony convictions, a coworker named Alan Jaco testified that Rutledge repeatedly brought a gun to work. Jaco testified that on one occasion Rutledge even fired a pistol in his direction, missing his head by about a foot. Jaco also testified that Rutledge "had [the gun] out shooting it around about every day." A neighbor, Mary Elizabeth Yates, testified that she once saw Rutledge firing a gun into the air as he walked into his house.

During closing arguments Mr. Rutledge's attorney acknowledged that Rutledge was a convicted felon and that he had possessed a gun. Without denying that Rutledge had fired the weapon, he argued that Rutledge possessed the gun for "innocent" reasons, such as target shooting. He also chided the prosecution for making "a federal case out of it."

During his rebuttal, the prosecutor responded to the "federal case" argument as follows:

"[H]e tells you, first of all he starts out by 'why make a federal case out of this?' I'll tell you why make a federal case out of it, and I won't apologize, ladies and gentlemen. That man is a convicted murderer, a convicted rapist and convicted aggravated assault [sic], and yet he is walking the street out here ... with a gun shooting at Mr. Jaco.... Why make a federal case out of it? I think you know why make a federal case out of it."

The district court overruled objections by Rutledge to these remarks.

The jury found Mr. Rutledge guilty on all three counts. Pursuant to Sec. 4B1.4 of the United States Sentencing Guidelines--a section that applies to the sentencing of armed career criminals--the district court concluded that Rutledge's offense level under the guidelines was 34 and his criminal history category was VI. The guideline range for these coordinates is imprisonment for 262-327 months. The district court sentenced Rutledge to 294 months on each count, to be served concurrently. Mr. Rutledge perfected a timely appeal.

II

A

Mr. Rutledge takes exception here, as he did in the district court, to the prosecutor's argument that he was "a convicted murderer, a convicted rapist and convicted aggravated assault [sic], and yet he is walking the street out here ... with a gun shooting at Mr. Jaco." When reviewing alleged prosecutorial misconduct, we consider the degree to which the remarks complained of had a tendency to mislead the jury and to prejudice the defendant; whether they were isolated or extensive; whether they were placed before the jury deliberately or accidentally; and the strength of the evidence of the defendant's guilt. United States v. Payne, 2 F.3d 706, 711-12 (6th Cir.1993).

The remarks complained of in the instant case were unlikely to mislead or prejudice the jury. Mr. Rutledge had stipulated to his convictions for murder, rape, and aggravated assault, and Mr. Jaco's testimony that Rutledge had narrowly missed him with a pistol shot had gone unchallenged. Given these facts, the prosecutor's observations strike us as a fair response to Mr. Rutledge's "federal case" argument. The evidence establishing Rutledge's guilt was overwhelming, moreover. Rutledge's claim that he possessed the gun for innocent purposes was not a legitimate defense to the unlawful possession charges. Even if the prosecutor's remarks had been improper, any error in overruling the objections to them would have been harmless.

B

18 U.S.C. Sec. 924(e)(1) provides that if a defendant is convicted of unlawfully possessing a firearm, a crime under 18 U.S.C. Sec. 922(g), and he has three prior convictions for violent felonies, he must be sentenced to imprisonment for at least 15 years. Section 4B1.4(a) of the sentencing guidelines provides that "[a] defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. Sec. 924(e)"--as Mr. Rutledge was--"is an armed career criminal." The guidelines provide that if an armed career criminal "used or possessed the firearm or ammunition in connection with a crime of violence," his offense level is 34 and his criminal history category is VI. U.S.S.G. Secs. 4B1.4(b)(3)(A), 4B1.4(c)(2).

For the definition of "crime of violence," Sec. 4B1.4 makes reference to Sec. 4B1.2(1). That section provides as follows:

"The term 'crime of violence' means any offense under federal or state law punishable by imprisonment for a term exceeding one year that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (Emphasis supplied.)

In the instant case the district court found that Mr. Rutledge had used a firearm in connection with a crime of violence against Alan Jaco. The court concluded that in firing his pistol so that the bullet passed a foot from Jaco's head, Rutledge had committed either of two crimes under Tennessee law, aggravated assault or reckless endangerment. As directed by U.S.S.G. Sec. 4B1.4, therefore, the court assigned Mr. Rutledge an offense level of 34 and a criminal history category of VI. If the shooting incident had not been treated as a crime of violence, the offense level would have been 33, the criminal history category would have been no higher than V, and the top of the guideline sentence range would have been no higher than 262 months.

Mr. Rutledge objects to the court's finding that he used the gun in connection with a crime of violence, arguing first that he would have had to be convicted of a crime of violence in connection with the use of a firearm before Sec. 4B1.4 could properly be applied to him. We disagree. A conviction is not required, in our view, if a crime of violence was in fact committed.

No court, as far as we know, has addressed the precise question of whether the crime of violence referred to in Sec. 4B1.4 must be a crime of which the defendant has been convicted. Judicial opinions construing similar guideline provisions, however, and the...