                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              February 21, 2017
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
       v.                                              No. 15-3213
 JAMES D. RUSSIAN,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                 (D.C. NO. 6:14-CR-10018-EFM-1)


Daniel T. Hansmeier, Assistant Federal Public Defender (with Melody Brannon,
Federal Public Defender, on the briefs), Office the Kansas Federal Public
Defender, Topeka, Kansas, for Appellant.

Jared S. Maag, Assistant United States Attorney (with Thomas E. Beall, Acting
United States Attorney, and Alan G. Metzger, Assistant United States Attorney,
on the brief), Wichita, Kansas, for Appellee.


Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.


TYMKOVICH, Chief Judge.


      James Russian was charged with four drug- and gun-related offenses.

Before trial, Russian filed a motion to suppress evidence obtained from the search
of two cell phones seized at the time of his arrest, arguing the search warrant was

invalid for lack of particularity. The district court denied the motion, concluding

even if the warrant was invalid, the good faith exception to the exclusionary rule

applied.

      At trial, text messages and photographs from the phones were introduced

against Russian. After the jury convicted Russian on all counts, the court

imposed a total sentence of 137 months’ imprisonment. Russian challenges the

admission of the evidence obtained from the cell phone searches, as well as the

sentences imposed on several of the counts.

      We affirm Russian’s convictions. The officers conducting the search acted

in objectively reasonable reliance on the warrant, and even if that were not the

case, any Fourth Amendment error was harmless beyond a reasonable doubt. As

for Russian’s sentences, we remand for resentencing. The government does not

dispute the district court erred in relying on an improperly calculated guidelines

range for the sentences on the contested counts.

                                I. Background

      Missouri law enforcement responded to a 911 call reporting that two

women were being threatened by a man with a machete and a handgun. The man

was identified as James Russian. When officers arrived at the scene, a high-speed

car chase ensued, which crossed state lines and ended in Kansas when Russian

lost control of his vehicle and spun to a stop. Russian exited his vehicle, jumped

                                        -2-
a fence, and fled into the woods, with law enforcement officers in pursuit. A

short time later, Russian was found hiding under some brush and was taken into

custody. One of the officers, Deputy Chris Wilson, searched Russian and found a

red and black Samsung cell phone in one of his pockets, which Deputy Wilson

then seized. After Russian was arrested, Deputy Wilson also searched his

abandoned vehicle and found, among other things, a black Samsung cell phone.

      Deputy Wilson applied for a search warrant with the state district court.

The search warrant application identified three places to be searched: (1) a red

and black Samsung cell phone found in Russian’s possession at the time of his

arrest, (2) a black Samsung cell phone taken from Russian’s car at the time of his

arrest, and (3) Russian’s residence. The application also requested permission to

seize “[t]ext messages, phone numbers, phone calls sent and received, any data

contained within the phone or on any removable media device within the phone

and Images contributing to the possession or sale of any illegal drug and drug

paraphernalia.” R. Supp. Vol. II. at 1.

      The state district court issued a search warrant that referenced Deputy

Wilson’s affidavit and warrant application and identified the crimes being

investigated and items to be seized, including “cell phones that could be used to

facilitate the commission of the crimes.” Id. at 4–5. The warrant also described

the location to be searched (Russian’s apartment), but it failed to authorize the

search of cell phones already in law enforcement custody or the seizure of any

                                          -3-
cell phone data. After obtaining the warrant, Deputy Wilson searched Russian’s

Samsung cell phones seized at the time of the arrest and recovered text messages,

phone numbers, a phone log of calls sent and received, and photographs.

      Russian was charged with four drug- and gun-related offenses. Count 1

charged possession of a Ruger 9mm firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1). Count 2 was the same statutory violation, but predicated on

possession of ammunition. Count 3 charged possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Count

4 alleged possession of marijuana with intent to distribute, in violation of 21

U.S.C. § 841(a). Before trial, Russian moved to suppress the evidence obtained

from Deputy Wilson’s search of the cell phones, arguing, among other things, that

the warrant lacked particularity.

      The district court denied the motion. Although the court found the

particularity question was a close call, it upheld the search under the good faith

exception to the exclusionary rule. Deputy Wilson had testified he believed he

was authorized to search the phones, because the warrant mentioned cell phones

in general, and because the application for the warrant requested authority to

search both of the phones and provided a list of data to be seized. There was no

evidence law enforcement had acted in bad faith, and the warrant was supported

by probable cause. Thus, the court reasoned, suppressing the evidence would not

serve the purposes of the exclusionary rule.

                                         -4-
      At trial, in addition to evidence obtained from the search of Russian’s home

and automobile, the government introduced text messages and photographs

obtained from the cell phones seized at the time of Russian’s arrest. The text

messages established Russian knew one of the women who had called 911 when

Russian threatened her; owned a gun; and was dealing in methamphetamine. The

photographs, which were taken at Russian’s home, depicted a green leafy

substance resembling marijuana. The jury ultimately convicted Russian on all

four counts as charged.

      Before sentencing, the Presentence Report (PSR) calculated Russian’s

guidelines sentencing range. The PSR took into account a fifteen-year-old

conviction for conspiracy to commit aggravated battery and arrived at a

guidelines range of 46 to 57 months’ imprisonment. The district court varied

upward from that range and imposed a total sentence of 137 months’

imprisonment: 76 months on Counts 1, 2, and 4, concurrent with each other and

consecutive to a 60-month sentence on Count 3.

                                  II. Analysis

      Russian makes three arguments on appeal. He contends the district court

erred (1) in denying his motion to suppress evidence seized from a search of the

cell phones; (2) in relying on an erroneously calculated guidelines range to

impose 76-month sentences on Counts 1, 2, and 4; and (3) in imposing a sentence

higher than the statutory maximum on Count 4. We consider each in turn.

                                        -5-
      A. Unreasonable Search and Seizure

      Russian first argues his convictions should be reversed, because the district

court erred in denying his motion to suppress evidence seized from the two cell

phones. Specifically, he contends the search warrant was invalid for lack of

particularity and was so facially deficient that the good faith exception to the

exclusionary rule cannot save the search. Although we agree with Russian that

the warrant was invalid, we affirm his convictions because we conclude the good

faith exception applies. And even if we were to assume the district court erred in

denying Russian’s motion, any error was harmless beyond a reasonable doubt.

      The Fourth Amendment protects the right of citizens to be free from

unreasonable searches and seizures. U.S. Const. amend. IV. In the criminal law

context, evidence seized in violation of the Fourth Amendment may not be

admitted against a defendant in a criminal prosecution, subject to certain

exceptions. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). But Fourth

Amendment violations are still subject to the harmless error rule. Chambers v.

Maroney, 399 U.S. 42, 53 (1970); Chapman v. California, 386 U.S. 18, 22 (1967)

(“[T]here may be some constitutional errors which in the setting of a particular

case are so unimportant and insignificant that they may, consistent with the

Federal Constitution, be deemed harmless, not requiring the automatic reversal of

the conviction.”). For a constitutional error to be held harmless, “the court must




                                         -6-
be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at

24.

      We review de novo the district court’s conclusion that even if the warrant

was invalid for lack of particularity, the good faith exception to the exclusionary

rule applies to save Deputy Wilson’s search of Russian’s cell phones. See United

States v. Burgess, 576 F.3d 1078, 1087 (10th Cir.), cert. denied 558 U.S. 1087

(2009) (“The ultimate question of reasonableness under the Fourth Amendment is

a legal conclusion that we review de novo.”). In doing so, “[w]e consider the

totality of the circumstances and view the evidence in the light most favorable to

the government.” United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005).

             1. Particularity Requirement

      Russian first argues the search warrant was invalid, because it failed to

describe with particularity the place to be searched (the two Samsung cell phones)

and the things to be seized (the cell phone data). We agree for several reasons.

      In protecting against unreasonable searches and seizures, the Fourth

Amendment mandates two requirements for search warrants: a warrant must be

supported by probable cause, and it must describe with particularity “the place to

be searched, and the persons or things to be seized.” U.S. Const. amend. IV;

Groh v. Ramirez, 540 U.S. 551, 557 (2004). Because the Fourth Amendment by

its terms “requires particularity in the warrant, not in the supporting documents,”

an application for a warrant which meets the particularity requirement “does not

                                         -7-
save the warrant from its facial invalidity.” Id. (emphasis removed). And

“[a]lthough an executing officer’s knowledge may be a curing factor,” knowledge

alone is insufficient to satisfy the particularity requirement. United States v.

Williamson, 1 F.3d 1134, 1136 (10th Cir. 1993).

      In the context of cell phones and cell phone data, the Supreme Court

recently held in Riley v. California that a warrant is generally required to search

digital information on a cell phone, even when the phone is seized incident to a

lawful arrest. 134 S. Ct. 2473, 2493 (2014). We have not yet had occasion to

address the effect of Riley, but we have previously recognized the importance of

the particularity requirement as it pertains to searches of personal computers,

because computers “can contain (or at least permit access to) our diaries,

calendars, files, and correspondence” and therefore may be “especially vulnerable

to a worrisome exploratory rummaging by the government.” United States v.

Christie, 717 F.3d 1156, 1164 (10th Cir. 2013).

      We have thus drawn a “recognizable line” in considering how much

particularity is required for computer searches. Id. On the one hand, we have

invalidated warrants authorizing computer searches “where we could discern no

limiting principle: where, for example, the warrant permitted a search of ‘“any

and all” information, data, devices, programs, and other materials,’” or “all

computer and non-computer equipment and written materials in [a defendant’s]

house.” Id. at 1164–65 (first quoting United States v. Otero, 563 F.3d 1127,

                                          -8-
1132–33 (10th Cir. 2009); then quoting Mink v. Knox, 613 F.3d 995, 1011 (10th

Cir. 2010)). On the other hand, we have stated, “warrants may pass the

particularity test if they limit their scope either ‘to evidence of specific federal

crimes or to specific types of material.’” Christie, 717 F.3d at 1165 (quoting

United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) (alteration

incorporated)).

      This approach can be extended to searches of cell phones, which the

Supreme Court has characterized as “minicomputers that also happen to have the

capacity to be used as a telephone.” See Riley, 134 S. Ct. at 2489. And here, we

have little difficulty concluding the warrant on which Deputy Wilson relied to

search Russian’s phones was invalid for lack of particularity. 1 Although the

application requested authorization to search the two Samsung cell phones law


      1
          Russian also urges us to adopt a search methodology requirement for
warrants involving cell phone data, meaning law enforcement would be required
to specify an ex ante search protocol before a warrant could issue. We need not
reach this argument, because we can easily conclude this warrant failed
particularity. But we note that, like other circuits, we have previously declined to
require a search protocol for computer searches, since courts are better able to
assess the reasonableness of search protocols ex post, “in light of the totality of
the circumstances” and “where evidence and experts from both sides can be
entertained and examined.” See Christie, 717 F.3d at 1166–67; see also United
States v. Richards, 659 F.3d 527, 538 (6th Cir. 2011); United States v. Cartier,
543 F.3d 442, 447–48 (8th Cir. 2008). And, in the context of computer searches
at least, a leading Fourth Amendment scholar has opined that Supreme Court
precedent “point[s] to the conclusion that the Fourth Amendment does not permit
ex ante restrictions on the execution of computer warrants.” Orin S. Kerr, Ex
Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241, 1260–71
(2010).

                                           -9-
enforcement had seized at the time of Russian’s arrest and certain data that might

be found on them, the warrant itself merely authorized a search of Russian’s

residence and seizure of any cell phones found inside. The warrant did not

identify either of the phones that were already in law enforcement’s custody, nor

did it specify what material (e.g., text messages, photos, or call logs) law

enforcement was authorized to seize.

      Accordingly, we agree with Russian that the warrant failed to meet the

Fourth Amendment’s particularity requirement.

             2. Good Faith Exception to the Exclusionary Rule

      Although the warrant was invalid, we can also consider whether the good

faith exception to the exclusionary rule applies. Russian contends it does not,

arguing the warrant was so facially deficient that Deputy Wilson could not

reasonably have presumed it to be valid. We disagree, because we find Deputy

Wilson’s reliance on the warrant was objectively reasonable under the

circumstances.

      Even if a warrant fails to satisfy the Fourth Amendment’s particularity

requirement, the exclusionary rule should not be applied to suppress evidence

obtained by officers acting in objectively reasonable reliance on a search warrant

issued by a detached and neutral magistrate judge that is ultimately deemed

invalid. United States v. Leon, 468 U.S. 897, 922 (1984). The rationale for

Leon’s good faith exception is the underlying purpose of the exclusionary

                                         -10-
rule—namely, to deter police misconduct. When an officer acts in good faith,

there is nothing to deter. Id. at 918. Thus, “the suppression of evidence obtained

pursuant to a warrant should be ordered only in the unusual cases in which

exclusion will further the purposes of the exclusionary rule.” Riccardi, 405 F.3d

at 863.

      But the officer’s reliance on the defective warrant still must be objectively

reasonable: the government is not entitled to the good faith exception when a

warrant is “so facially deficient—i.e., in failing to particularize the place to be

searched or the things to be seized—that the executing officers cannot reasonably

presume it to be valid.” Leon, 468 U.S. at 922–23. “The test is an objective one

that asks ‘whether a reasonably well trained officer would have known that the

search was illegal despite the magistrate’s authorization.’” Otero, 563 F.3d at

1134 (quoting Leon, 468 U.S. at 922 n.23). “Not every deficient warrant,

however, will be so deficient that an officer would lack an objectively reasonable

basis for relying upon it.” Otero, 563 F.3d at 1134. “Even if the court finds the

warrant to be facially invalid . . . it ‘must also review the text of the warrant and

the circumstances of the search to ascertain whether the agents might have

reasonably presumed it to be valid.’” Riccardi, 405 F.3d at 683 (quoting United

States v. Leary, 846 F.2d 592, 607 (10th Cir. 1988)).

      Here, several factors lead us to conclude Deputy Wilson’s reliance on the

warrant was objectively reasonable. First, Deputy Wilson prepared the warrant

                                          -11-
application and supporting affidavit, in which he carefully identified each

Samsung cell phone by color and model number and specified which types of data

he had probable cause to believe would be found therein. Although a warrant

application or affidavit cannot save a warrant from facial invalidity, it can support

a finding of good faith, particularly where, as here, the officer who prepared the

application or affidavit also executed the search. See United States v. Simpson,

152 F.3d 1241, 1248 (10th Cir. 1998) (“[T]he affidavit certainly supports the

district court’s conclusion that Deputy Johnson [the affiant] in good faith believed

he was obtaining a warrant to search Simpson’s residence as well as his person.”);

see also United States v. Tracey, 597 F.3d 140, 153 (3d Cir. 2010) (“We also note

that the application of the good faith exception is appropriate because [Officer]

Holler, who drafted the narrower affidavit and was aware of its limits, led the

search team at Tracey’s home.”).

      Second, in addition to signing the warrant itself, the magistrate judge

signed Deputy Wilson’s warrant application and affidavit, which contained a

particularized description of the Samsung cell phones and cell phone data. The

magistrate judge’s approval of the application and affidavit—and reference to

both documents in the first paragraph of the warrant—further supports the

objective reasonableness of Deputy Wilson’s reliance on the warrant. Cf. United

States v. Allen, 625 F.3d 830, 839 (5th Cir. 2010) (reasoning “the executing

officer who prepared the warrant, the affidavit and the attachment . . . had

                                         -12-
additional objective reason to believe the warrant was valid,” because the

magistrate judge “signed not only the warrant, but also the affidavit, to which the

list of items to be seized was attached”). Courts applying the good faith

exception “have concluded that, at least when the magistrate neither intimates he

has made any changes in the warrant nor engages in conduct making it appear he

has made such changes, the affiant-officer is entitled to assume that what the

magistrate approved is precisely what he requested.” 1 Wayne R. LaFave, Search

and Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2012). Thus,

it was reasonable for Deputy Wilson to rely on the warrant to search the cell

phones already in law enforcement’s custody and seize certain cell phone data

related to the crimes listed in the warrant.

      Third, Deputy Wilson confined his search to the evidence specified in the

warrant application and affidavit, further indicating he acted in good faith and in

objectively reasonable reliance on what he believed was a valid warrant. Cf.

Otero, 563 F.3d at 1136 (“The inspectors in this case had reason to believe the

warrant was valid, considered themselves authorized to search only for evidence

of crimes for which they had probable cause, and conducted their search

accordingly.”); Riccardi, 405 F.3d at 864 (“The officers remained within the

terms of the warrant as well as the affidavit, and did not conduct a ‘fishing

expedition’ beyond the scope of the authorized investigation.”).




                                          -13-
      Finally, excluding the challenged evidence would not serve the underlying

purpose of the exclusionary rule. As the Supreme Court has emphasized, “the

exclusionary rule is not an individual right,” Herring v. United States, 555 U.S.

135, 141 (2009), but rather “a judicially fashioned remedy whose focus is not on

restoring the victim to his rightful position but on deterring police officers from

knowingly violating the Constitution,” Allen, 625 F.3d at 836; see also Otero, 563

F.3d at 1133. As detailed above, “[a]t each step of the investigation,” Deputy

Wilson “made every effort to comply with the law.” See Burgess, 576 F.3d at

1091. “[T]he exclusionary rule is designed to deter police misconduct rather than

to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916 (emphasis

added). And since judges and magistrates are “neutral judicial officers” with “no

stake in the outcome of particular criminal prosecutions,” the exclusionary

sanction “cannot be expected significantly to deter them.” Id. at 917.

Accordingly, given the lack of misconduct by law enforcement and Deputy

Wilson’s reliance on a warrant he reasonably believed to be valid, we decline to

apply the exclusionary rule to the evidence seized from Russian’s phones.

      None of Russian’s arguments persuade us to reach a different conclusion.

First, Russian contends Deputy Wilson’s subjective knowledge of the place to be

searched does not render his reliance on the deficient warrant objectively

reasonable. But as we have already explained, a number of other factors

demonstrate the objective reasonableness of Deputy Wilson’s belief the warrant

                                         -14-
was valid. Russian next argues that because Deputy Wilson specifically requested

a search of cell phone data, he should have known the warrant did not authorize

such a search when it referred only to “cell phones that could be used to facilitate

the commission of the crimes.” R. Supp. Vol. II at 4–5. Russian claims no

reasonable officer would read this brief reference to cell phones as permitting a

search of the phones in law enforcement’s custody or their data. But this

argument also fails in light of the circumstances, including the magistrate judge’s

signature on the warrant application and affidavit.

      In sum, the district court did not err in applying the good faith exception to

uphold the search of Russian’s cell phones.

             3. Harmless Error Rule

      But even if we were to assume the district court erred in denying Russian’s

motion to suppress and the good faith exception did not save the warrant, we

would still find any error was harmless beyond a reasonable doubt.

      Most constitutional errors, including Fourth Amendment violations, do not

require reversal of a conviction if the court concludes the error was harmless

beyond a reasonable doubt. Chambers, 399 U.S. at 52–53. The government bears

the burden of making this showing. United States v. Miller, 111 F.3d 747, 751

(10th Cir. 1997). “In cases that are decided by a jury, a court will only find a

constitutional error harmless if the court can conclude ‘beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.’” United

                                         -15-
States v. Benard, 680 F.3d 1206, 1213 (10th Cir. 2012) (quoting Chapman, 386

U.S. at 24). Put differently, we must determine “whether the guilty verdict

actually rendered in this trial was surely unattributable to the error.” Sullivan v.

Louisiana, 508 U.S. 275, 279 (1993) (emphasis in original). In making this

determination, we consider the alleged error “in the context of other evidence

presented in order to determine whether its admission was harmless beyond a

reasonable doubt.” United States v. Mullikin, 758 F.3d 1209, 1211 (10th Cir.

2014) (quoting Arizona v. Fulminante, 499 U.S. 279, 308 (1991)).

      Russian contends any error was not harmless beyond a reasonable doubt,

because the evidence obtained from the cell phones, which included photographs

of a substance resembling marijuana and text messages containing offensive and

violent language, “was damning and inflammatory, and was woven throughout the

trial.” Aplt. Rep. Br. at 13. Russian is correct that the prejudicial effect of

potentially wrongfully admitted evidence is one consideration in the harmless

error analysis. See United States v. Glass, 128 F.3d 1398, 1403 (10th Cir. 1997).

But we still must consider the challenged evidence in the context of the evidence

properly admitted at trial. See Mullikin, 758 F.3d at 1211. And, after reviewing

the unchallenged evidence introduced at trial during the government’s case in

chief, we conclude the government has met its burden of demonstrating any error

in admitting the evidence obtained from the search of Russian’s two cell phones

was harmless.

                                         -16-
      To begin, the jury’s guilty verdict on Counts 1 and 2 was surely not

attributable to the evidence seized from the cell phones. Counts 1 and 2, unlawful

possession of a firearm or ammunition in or affecting interstate commerce,

required the government to prove beyond a reasonable doubt that Russian had

been convicted of a felony and then knowingly possessed a firearm or ammunition

that had moved in interstate commerce. In the superseding indictment, the

government alleged Russian possessed a Ruger P95 9 mm handgun, along with

eighty-two live cartridges of 9 mm ammunition and eighteen live cartridges of

20-gauge shotgun ammunition, which had been transported in interstate

commerce. At trial, Deputy Wilson testified that during the lawful search of

Russian’s residence, law enforcement discovered a Ruger P95 9 mm handgun,

loaded with twelve rounds of ammunition, in the kitchen. Two loaded 9 mm

magazines and additional 9 mm ammunition, along with a box of shotgun shells,

were discovered on Russian’s dresser. In light of this evidence, the admission of

the cell phone evidence, if erroneous, was harmless beyond a reasonable doubt

regarding the guilty verdicts on Counts 1 and 2.

      The same is true for Count 4, possession with intent to distribute marijuana,

which required the government to prove beyond a reasonable doubt that Russian

knowingly or intentionally possessed marijuana with the intent to distribute it.

During the lawful search of Russian’s residence, officers recovered a wealth of

physical evidence that was admitted at trial, including forty-six plastic baggies

                                        -17-
containing marijuana, with a name, address, phone number, and “This 1’s on me”

written on each baggie. R. Vol. III at 177–80. The baggies also contained a half

book of matches and rolling papers. Additionally, officers found nine identically

marked baggies, which contained marijuana, matchbooks, and rolling papers, in

Russian’s abandoned vehicle on the night of his arrest. Digital scales were

discovered in Russian’s bathroom and in his kitchen. And a ledger with entries

concerning distribution of a controlled substance was discovered on Russian’s

dresser. Officers also found $23,700 in cash, most of which was hidden inside an

air vent in Russian’s residence.

      In addition to this unchallenged physical evidence, a witness whose name

appeared on the baggies testified at trial that he had never seen the plastic baggies

of marijuana found in Russian’s vehicle and residence, he did not spell his name

as it was spelled on the baggies, he was unfamiliar with the address listed on the

baggies, and his handwriting was not on the baggies. He also testified that he had

previously been convicted on a misdemeanor involving marijuana. And one of

the women involved in the 911 call testified about the events leading up to that

911 call, which led to Russian’s arrest. Pertinently, she testified Russian had

given her some methamphetamine to sell, accused her of stealing it, and

eventually threatened her with a machete and a handgun.

      All of this unchallenged evidence and trial testimony establishes that, even

if the text messages and photographs were admitted in error, the jury’s guilty

                                         -18-
verdict on Count 4 was not attributable to the cell phone evidence. There was

overwhelming evidence Russian knowingly or intentionally possessed marijuana

with the intent to distribute it, and the strength of this evidence minimizes any

prejudice Russian may have suffered as a result of the cell phone evidence. Cf.

Glass, 128 F.3d at 1403 (“To hold an error of constitutional dimension harmless,

we must conclude ‘the properly admitted evidence of guilt is so overwhelming,

and the prejudicial effect of the [purported error] is so insignificant by

comparison, that it is clear beyond a reasonable doubt that the improper use of the

admission was harmless error.’”) (quoting Schneble v. Florida, 405 U.S. 427, 430

(1972)).

      Finally, and for similar reasons, any error was also harmless regarding

Count 3. For Count 3, the government was required to prove beyond a reasonable

doubt that Russian knowingly possessed a firearm in furtherance of a drug-

trafficking crime. Specifically, the government had to prove Russian “committed

the crime of possession with intent to distribute marijuana, as charged in Count 4”

and that he “possessed a firearm in furtherance of this crime.” R. Vol. III at

378–79. As the court instructed the jury, “in furtherance of” means “for the

purpose of assisting in, promoting, accomplishing, advancing, or achieving the

goal or objective of the underlying offense.” Id. at 379. The mere presence of a

firearm at the scene of a drug-trafficking crime is insufficient to meet this

element. Instead, the following non-exhaustive factors can indicate a firearm was

                                         -19-
possessed in furtherance of a drug-trafficking crime: “(1) the type of criminal

activity that is being conducted; (2) accessibility of the firearm; (3) the type of

firearm; (4) whether the firearm is stolen; (5) the status of the possession

(legitimate or illegal); (6) whether the firearm is loaded; (7) the time and

circumstances under which the firearm is found, and (8) proximity to drugs or

drug profits.” Id.

      As detailed above, evidence lawfully obtained and admitted at trial

established Russian illegally possessed a loaded 9 mm handgun, and this handgun

was located on his kitchen cabinet, just above the largest source of marijuana

found in Russian’s residence—that is, the forty-six baggies found in the space

below the kitchen sink. A large amount of cash was also discovered in Russian’s

residence. And there was overwhelming evidence supporting Russian’s

conviction on Count 4, as discussed above. All of this evidence reduces the

possible prejudicial effect of the cell phone evidence, and it establishes the jury’s

guilty verdict on Count 3 was not attributable to evidence that may have been

erroneously admitted.

      In sum, the lawfully obtained and admitted evidence and trial testimony

elicited by the government on each count charged and the comparative lack of

prejudicial effect of the evidence obtained from the cell phones lead us to

conclude the jury’s guilty verdicts on all counts were not attributable to the

admission of the evidence seized during the search of Russian’s cell phones.

                                         -20-
Thus, even if the district court erred in denying Russian’s motion to suppress, any

error was harmless beyond a reasonable doubt.

      We therefore affirm Russian’s convictions.

      B. Improperly Calculated Guidelines Range

      Russian next argues the district court plainly erred in relying on an

improperly calculated guidelines range for the sentences imposed on Counts 1, 2,

and 4. Specifically, he contends the PSR relied on a fifteen-year-old felony

conviction that was too old to score in calculating a guidelines range of 46 to 57

months, from which the district court varied upwards to impose a 76-month

sentence on Counts 1, 2, and 4. Properly calculated, the range would have been

24 to 30 months. The government does not dispute this issue, and thus we

remand for resentencing on Counts 1, 2, and 4.

      C. Sentence Above Statutory Maximum

      Finally, Russian argues the district court plainly erred in imposing a 76-

month sentence on Count 4, since the statutory maximum for that offense is 60

months. Again, the government does not dispute the issue. Accordingly, we

remand for resentencing on Count 4 in accordance with the statutory maximum.




                                        -21-
                             III. Conclusion

     For the foregoing reasons, we AFFIRM Russian’s convictions but

REMAND for resentencing on Counts 1, 2, and 4.




                                    -22-
