                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3413
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Michael Bentley Russell,                 *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: July 25, 2001

                                Filed: August 1, 2001
                                    ___________

Before WOLLMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and BYE,
      Circuit Judges.
                           ___________

PER CURIAM.

       Michael Bentley Russell pleaded guilty to being a felon in possession of a
firearm, a violation of 18 U.S.C. § 922(g). At sentencing, the district court1 overruled
Russell’s objection to the assignment of 3 criminal history points for a 1991 Kansas
burglary sentence of 2-5 years imprisonment. In addition, the district court permitted
a psychologist who had examined Russell to testify on matters that would help the court

      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
recommend an appropriate facility for treatment, but did not allow testimony as to why
Russell committed his crime. The court then sentenced Russell to 78 months’
imprisonment and 3 years’ supervised release. On appeal, Russell challenges the
criminal-history calculation and the exclusion of evidence pertaining to his state of mind
at the time he committed his crime.

        Having carefully reviewed the record, we conclude that the district court did not
err in assigning 3 points for the prior burglary sentence, see U.S.S.G. § 4A1.1(a) (add
3 points for prior sentence of imprisonment exceeding 1 year and 1 month): the Kansas
court--upon revoking Russell’s probation--ordered execution of the originally
suspended sentence of 2-5 years, and Russell in fact served some jail time on that
sentence, see U.S.S.G. § 4A1.2, comment. (n.2) (criminal history points are based on
sentence pronounced, not length of time actually served; prior sentence is considered
sentence of imprisonment if defendant actually served a period of imprisonment on such
sentence). We further conclude that the district court did not abuse its discretion in
excluding the state-of-mind evidence, especially in light of Russell’s insistence that he
did not seek to present the evidence in support of a diminished-capacity departure. See
United States v. Granados, 202 F.3d 1025, 1027-28 (8th Cir. 2000) (district court has
discretion to determine whether to allow testimony or receive additional evidence at
sentencing).

      The judgment is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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