UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4824
EMORY SCOTT BIVINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-02-35-5-BO)
Submitted: April 30, 2003
Decided: January 22, 2004
Before WILKINSON, LUTTIG, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BIVINS
OPINION
PER CURIAM:
Emory Scott Bivins pled guilty to two counts of using or carrying
a firearm during and in relation to a crime of violence, 18 U.S.C.
§ 924(c) (2000). Pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.4(a)(2) (2001), the guideline range for each count was the stat-
utory minimum sentence: eighty-four months for Count Three and
300 months for Count Seven. The district court imposed a sentence
of eighty-four months on Count Three and departed to a sentence of
life imprisonment on Count Seven. For the reasons explained below,
we vacate the sentence imposed for Count Seven and remand for
resentencing.
In conduct underlying a firearms charge that was dismissed pursu-
ant to Bivins’ plea agreement, Bivins shot and seriously wounded a
law enforcement officer, leaving the victim with permanent injuries.
Prior to sentencing, the probation officer suggested that the district
court might consider an upward departure based on a number of fac-
tors for which departure is encouraged under the guidelines.1 The dis-
trict court found that the attempted murder of a law enforcement
officer on active duty was an atypical § 924(c) offense and departed
on Count Seven from a sentence of 300 months to life imprisonment.
To determine the extent of the departure, the court decided that the
mandatory sentence of 384 months for both counts would be the start-
ing point for the departure. The court indicated that a "comparable
guideline range" would be 360 months to life. The court then rea-
soned that "it is within my discretion today to sentence [Bivins] to life
because he’s at a guideline range that anticipates a punishment of life
given the aggregate severity of his present mandatory sentence." The
court held that it had "established by operation of law that [Bivins’]
comparable guideline range is 360 to life." In addition to the life sen-
tence imposed for Count Seven, the court imposed a consecutive sen-
tence of 84 months for Count Three. When defense counsel indicated
1
The factors were: physical injury, USSG § 5K2.2; extreme psycholog-
ical injury, USSG § 2K2.3; use of a weapon, USSG § 5K2.6; extreme
conduct, USSG § 5K2.8; and adequacy of criminal history category,
USSG § 4A1.3.
UNITED STATES v. BIVINS 3
that Bivins would appeal the sentence, the court stated that it had "es-
tablished a guideline for departure here and find that to be the appro-
priate level at which to sentence him."
On appeal, Bivins contends that the district court erred in determin-
ing the guideline range for Count Seven and in departing upward on
Count Seven without following the procedure for departures estab-
lished by this court.
With respect to the district court’s determination of the guideline
range for Count Seven, it is indisputable that the guideline range for
that count was 300 months. See 18 U.S.C. § 924(c); USSG § 2K2.4(b)
& comment. (n.1). The district court did not find otherwise, but con-
fused the issue when it identified a "comparable guideline range" of
360 months to life as the point from which to begin a departure and
later suggested that the life sentence imposed on Count Seven was
within the guideline range for Count Seven.2
The Sentencing Commission has not provided specific directions to
the district court for determining the extent of a departure other that
it must be reasonable under the circumstances. 18 U.S.C. § 3742(f)(2)
(2000); United States v. Terry, 142 F.3d 702, 707 (4th Cir. 1998).
However, the sentencing court must give a "principled explanation"
for the extent of the departure. Terry, 142 F.3d at 707. In this case,
having decided to depart upward on Count Seven, the sentencing
court was obligated to use the correct guideline range, 300 months,
as the starting point for the departure and to provide a cogent explana-
tion for the extent of the departure. This it failed to do.
Bivins also contests the method used by the sentencing court to
arrive at its decision to depart upward. A sentencing court may depart
from the guideline range only if the court finds an aggravating or mit-
igating factor of a kind, or to a degree, not adequately considered by
the Sentencing Commission. 18 U.S.C. § 3553(b) (2000); Koon v.
United States, 518 U.S. 81, 98 (1996). This Court has approved a
2
A mandatory minimum sentence of 300 months for a defendant in
criminal history category VI could fit within three guideline ranges that
are less than 360-life: 262-327 months; 292-365 months; and 324-405
months. USSG § 5A (Sentencing Table).
4 UNITED STATES v. BIVINS
five-step analysis to be followed when the sentencing court decides
to depart from the guideline range. United States v. Rybicki, 96 F.3d
754, 757 (4th Cir. 1996) (applying Koon v. United States, 518 U.S.
81 (1996)); see Scheetz, 293 F.3d at 190-91 (applying Rybicki test).
First, the court must "determine the circumstances and conse-
quences of the offense," a determination which is reviewed for clear
error. Scheetz, 293 F.3d at 190. Second, the court must identify a fac-
tor that is sufficiently atypical to potentially warrant departure. This
decision is not reviewed. Id. Third, the court should classify the factor
so identified as forbidden, encouraged, discouraged, or unmentioned
in the guidelines as a possible basis for departure. This decision is
reviewed de novo. Id. Fourth, the court must decide whether a depar-
ture is permitted. If the court identifies a factor for which departure
is encouraged, a departure is usually appropriate unless the factor is
already accounted for in the applicable guideline. If the factor is dis-
couraged, a departure is possible only when the factor is present to an
exceptional degree. If the factor is unmentioned, a departure is per-
mitted only in the highly infrequent case "where the structure and the-
ory of both relevant individual guidelines and the Guidelines taken as
a whole indicate[s] that [the factor] take[s] the case out of the applica-
ble guideline’s heartland." Rybicki, 96 F.3d at 758 (internal quotation
omitted). This decision is reviewed de novo. Scheetz, 293 F.3d at 191.
Fifth, the court must decide whether the factor it has identified and
classified reasonably warrants a departure. Id. The court’s ultimate
decision to depart is reviewed for abuse of discretion, but its underly-
ing factual findings are reviewed for clear error and, if the departure
is based on a misinterpretation of the guideline, that underlying ruling
is reviewed de novo. Rybicki, 96 F.3d at 758.
In this case, Application Note 1 to § 2K2.4 explains that "[a] sen-
tence above the minimum term required by 18 U.S.C. § 924(c) . . .
is an upward departure from the guideline sentence."3 The district
3
The same Application Note states that an upward departure "may be
warranted . . . to reflect the seriousness of the defendant’s criminal his-
tory, particularly in a case in which the defendant is convicted of an 18
U.S.C. § 924(c) . . . offense and has at least two prior felony convictions
for a crime of violence . . . that would have resulted in application of
UNITED STATES v. BIVINS 5
court determined that a § 924(c) offense involving the attempted mur-
der of an on-duty law enforcement officer was an atypical § 924(c)
offense. The district court thus identified a factor potentially warrant-
ing departure, but did not classify the factor it identified for departure
as encouraged or discouraged. As specifically phrased by the court,
it appears to be an unmentioned factor. The court did not determine
whether the factor identified as a basis for departure was already
accounted for in the guidelines, although it is clear from the record
that the district court concluded that the guideline sentence did not
adequately address the factor. These two steps of the Rybicki test
require de novo review. Id. We conclude that the district court erred
in failing to classify the factor it identified as a basis for departure.
In addition, the district court failed to comply with the requirement
of Rybicki by not explaining how the factor identified as a possible
basis for departure removed the case from the heartland of the appli-
cable guideline and justified a departure from 300 months imprison-
ment to a life sentence.
Accordingly, we vacate the sentence imposed for Count Seven and
remand the case for resentencing on that count. If the district court
again determines that a departure above the guideline range for that
count is warranted, the court should begin the departure at 300
months and explain the reasons for the extent of its departure. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
§ 4B1.1 (Career Offender) if that guideline applied to [this] offense."
Bivins had two prior felony convictions for crimes of violence, a second
degree assault conviction and a burglary conviction. The probation offi-
cer suggested that a departure might be based on the inadequacy of
Bivins’ criminal history. However, the district court did not depart on
this basis.