United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 24, 2003
FOR THE FIFTH CIRCUIT
___________________ Charles R. Fulbruge III
Clerk
Case No. 02-30975
___________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANDRE R FERGUSON
Defendant-Appellant
___________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(02-CR-18)
___________________________________________________
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PER CURIAM*:
At the defendant’s sentencing hearing, the district court
increased the defendant’s criminal history category one level (from
level I to level II) and increased his total offense level five
points (from a total offense level of 16 to a total offense level
of 21). On appeal, we are asked to determine whether the district
court erred in upwardly departing from the Sentencing Guidelines
regarding both the criminal history category and the total offense
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
level and, if not, whether the degree to which the district court
departed is reasonable.
I. FACTS AND PROCEDURAL BACKGROUND
The defendant Andre R. Ferguson, doing business as Andre Arms
(“Andre’s”), operated a firearms store in Baton Rouge, Louisiana.
In this capacity, Ferguson came under the scrutiny of the Bureau of
Alcohol, Tobacco and Firearms (“ATF”) for allegedly selling
firearms to convicted felons between March 23, 1998 and February
14, 2000. Subsequently, on April 19, 2002, Ferguson entered a plea
of guilty to five counts of selling firearms to prohibited persons
in violation of 18 U.S.C. § 922(d)(1).1
In accordance with U.S.S.G. § 2K2.1(a)(6), which applies to
convictions under § 922(d), the pre-sentence report (“PSR”)
assigned Ferguson a base offense level of 14.2 In addition to the
five firearms listed in the information, the PSR provided that
Ferguson unlawfully sold seventeen other firearms, bringing the
1
The district court approved the waiver of indictment
and filed a superseding bill of information charging Ferguson
with five counts of selling firearms to prohibited persons.
2
Section 2K2.1 of the Sentencing Guidelines, entitled,
“Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or
Ammunition,” provides, in relevant part:
(a) Base Offense Level (Apply the Greatest):
. . .
(6) 14, if the defendant (A) was a prohibited person at the
time the defendant committed the instant offense; or
(B) is convicted under 18 U.S.C. § 922(d).
U.S. SENTENCING GUIDELINES MANUAL, § 2K2.1(a)(6) (2001).
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total number of firearms at issue for sentencing purposes to
twenty-two. Under § 2K2.1(b)(1)(B), because Ferguson’s offense
involved between eight and twenty-four firearms, his offense level
was increased by four levels to 18.3 After subtracting two levels
for acceptance of responsibility, Ferguson’s base offense level was
reduced to 16. Because Ferguson had no prior juvenile
adjudications, adult criminal convictions or other arrests, his
total criminal history points totaled zero. As a result, he was
assigned a criminal history category of level I. A criminal
history category of level I and an accompanying total offense level
of 16 results in a guideline range of twenty-one to twenty-seven
months.
After giving Ferguson notice that it intended to upwardly
depart, the district court heard argument regarding the merits of
the intended departure. Following this (second) sentencing
hearing, the district court upwardly departed from a criminal
history category of level I to a criminal history category of level
II and from a total offense level of 16 to a total offense level of
3
Sub-section 2K1.2(b)(1)(B) provides, in relevant part:
(b) Specific Offense Characteristics
(1) If the offense involved three or more firearms,
increase as follows:
. . .
(B) 8-24 add 4
(C) 25-99 add 6
(D) 100-199 add 8
(E) 200 or more add 10 . . . .
Id. § 2K2.1(b)(1)(B).
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21, resulting in a guideline range of forty-one to fifty-one
months. Ferguson was sentenced to forty-eight months on each
count, to be served concurrently.
On September 13, 2001, a final judgment was entered by the
district court. In addition to this term of imprisonment, the
district court imposed a three-year term of supervised release for
each count, to run concurrently and imposed a $500.00 special
assessment. Ferguson timely appeals from this judgment.
II. STANDARD OF REVIEW
Our review of a sentence under the guidelines is “confined to
determining whether a sentence was imposed in violation of law or
as a result of an incorrect application of the sentencing
guidelines.” United States v. Shipley, 963 F.2d 56, 58 (5th Cir.
1992). Further, we apply an abuse of discretion standard to the
district court’s decision to depart upward and will “affirm a
departure from the Guidelines ‘if the district court offers
acceptable reasons for the departure and the departure is
reasonable.’” See United States v. Ashburn, 38 F.3d 803, 807 (5th
Cir. 1994) (en banc)(quoting United States v. Lambert, 984 F.2d
658, 663 (5th Cir. 1993) (en banc)).
III. ANALYSIS OF THE DEFENDANT’S SENTENCE
To support its request for an upward departure, the government
called several witnesses. First, Special Agent Paul Rash with the
ATF testified that during the ATF’s investigation of Ferguson
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(which spanned over ten years), Ferguson allowed a confidential
informant, whom Ferguson believed to be a convicted felon, to pay
for and take possession of firearms over six times.
As further explained by Agent Rash, a firearms trace results
when the dealer responsible for selling a gun recovered from a
crime scene is contacted by the ATF to reveal the purchaser of the
firearm. Agent Rash testified that Ferguson had been contacted
approximately 124 times regarding guns recovered at crime scenes.
Agent Rash further testified regarding the results of a
search conducted (pursuant to a search warrant) of Andre’s, and
specifically detailed discrepancies in Ferguson’s records and
receipts uncovered during the search. For example, Agent Rash
discussed Ferguson’s Acquisition and Disposition book (the “A&D
book”) and his ATF Form 4473's. A firearms licensee is required
to log acquisitions and dispositions of firearms in his A&D book
in accordance with 18 U.S.C. § 923's licensing provisions, and
Form 4473's are required to be completed by a firearm purchaser to
allow for the purchaser’s criminal background check. As to a
number of entries in Ferguson’s A&D book, the firearm disposition
entry was left blank. Further, as to the majority of the Form
4473's, the Forms were completed in their entirety (including
entry of the purchaser’s name and his or her driver’s license
number), except the firearm to be purchased entry was completely
left blank. As relayed by Agent Rash, this led the ATF to believe
that Ferguson would substitute these partially-completed Form
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4473's when an individual failed a background check. Agent Rash
also discussed that “an extremely large percentage of the forms”
were executed by black females purchasing large quantities of
handguns. At least ten of these women were contacted. The women
told agents that they were required to execute paperwork several
times because Ferguson told them their original paperwork could
not be located, and, in one instance, a woman told agents that she
had never provided information to Andre’s for a gun purchase.
Agent Rash also testified that, prior to the search of
Andre’s, Ferguson gave approximately 148 partially-completed Form
4473's to his friend Willie Shelton for safe-keeping. Agent Rash
had contacted several of the individuals identified as purchasers
on these Form 4473's; in several instances (“at least ten or
twelve so far”), Agent Rash uncovered evidence of wrongdoing. For
example, Denita Barlow told Agent Rash that Ferguson paid her and
a number of other girls to sign a large volume of blank ATF Form
4473's. Additionally, in an interview with Agent Rash, Darlene
Spears stated that she had made about a dozen straw purchases
through Ferguson; “Locket” and Tehera Rashide stated that they had
also made straw purchases through Ferguson.
Special Agent Jeff Methvin with the Federal Bureau of
Investigation (“FBI”) testified next. He testified regarding a
connection between Kreglin Gaines, who the FBI was investigating
for narcotics trafficking activities, and Ferguson. Specifically,
the FBI intercepted several telephone conversations between Gaines
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and Ferguson wherein Ferguson compared a group of individuals
purchasing guns from him to “Al Capone” and “professionals” and
specifically discussed one of the members as the “shooter” or
“trigger man.” In a subsequent conversation, Ferguson and Gaines
discussed Ferguson obtaining identification and/or a driver’s
license for a mutual friend, referred to as “Rodney.” Agent
Methvin testified regarding his belief that this was Rodney Lee,
a known drug associate of Gaines who was subsequently arrested
using a false identification card.
Finally, Gary Orchowski, Special Agent for the ATF National
Tracing Center Division testified on behalf of the government as
an expert in the area of firearms trace analysis. Specifically,
he testified regarding a “time to crime” factor used in firearms
trace analysis. This factor measures the time from sale of a gun
until when it is recovered by law enforcement. As relayed by
Agent Orchowski, the national time to crime average for the year
2000 was 6.1 years and for the year 2001 was 8.1 years and the
time to crime average for Baton Rouge for the year 2000 was 4.2
years; however, the time to crime average for Andre’s for the year
2001 was 2.17 years, “indicat[ing] [] that Andre’s Arms was
definitely involved in firearms trafficking schemes with other
individuals.”4
4
Agent Orchowski did not have a time to crime figure for
Andre’s in 2000.
7
Agent Orchowski also testified as to the approximately 120
firearms traced from crime scenes to Andre’s. Of these, ninety-
six percent were handguns; of these handguns, seventy-nine percent
were semiautomatic pistols. Further, of the firearms traced to
Andre’s, thirty-one were involved in possession of a weapon cases,
twenty-one were involved in narcotics cases, eighteen were
involved in weapons offense cases, ten were involved in violent
cases, eight were involved in aggravated assault cases, three were
involved in robbery cases, one was involved in a kidnapping case
and six were involved in homicide cases.
A district court may depart upward from the Sentencing
Guidelines if the court finds that an aggravating circumstance
exists that was not adequately taken into consideration by the
Sentencing Commission. 18 U.S.C. § 3553(b). Here, tethered to
the above cited evidence, the district court concluded that a
criminal history category of level I did not adequately reflect
the seriousness of Ferguson’s past conduct or the likelihood that
he would commit additional crimes in the future. Additionally, it
found the unusual circumstances of this case justified an upward
departure from the total offense level of 16 to a total offense
level of 21. In so doing, the district court gave detailed
reasons, on the record, for its decisions to depart.
Regarding Ferguson’s criminal history category, Chapter 4 of
the guidelines, § 4A1.3 authorizes a district court to depart
upward “[i]f reliable information indicates that the criminal
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history category does not adequately reflect the seriousness of
the defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes . . . .” U.S. SENTENCING GUIDELINES
MANUAL, § 4A1.3. In deciding whether to depart because of the
defendant’s criminal history, subsection (e) expressly authorizes
the court to consider “prior similar adult criminal conduct not
resulting in a criminal conviction.” Id. § 4A1.3 (policy
statement).
United States Code Title 18, § 923(m), makes it unlawful for
any licensed dealer to fail to make an appropriate entry or to
fail to maintain any record which he is required to keep under 18
U.S.C. § 923. Both ATF Agent Rash and Special Agent Orchowski
testified as to Ferguson’s numerous violations of these licensing
provisions. Not only did Ferguson’s poor maintenance of the A&D
book violate licensing provisions, but also his maintenance of
partially completed Form 4473's violated licensing provisions
(including those found in his office and those Form 4473's that
were given to Willie Shelton). The evidence that Ferguson was
allowing straw purchases of firearms to be made and, indeed, was
paying many black females to partially complete blank Form 4473's
further supports the district court’s departure based upon “prior
similar adult criminal conduct not resulting in a criminal
conviction.” The district court did not abuse its discretion in
reasonably increasing Ferguson’s criminal history category one
level.
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Regarding the district court’s decision to depart upward from
Ferguson’s calculated total offense points, § 5K2.0, entitled
“Grounds for Departure (Policy Statement)” in Chapter 5 of the
Guidelines, expressly limits departures of the nature involved
here to unusual cases that fall outside of the heartland of cases
in the Guideline. The commentary to this policy statement quotes
from Koon v. United States, 518 U.S. 81 (1996), in stating that
“[w]hether a given factor is present to a degree not adequately
considered by the Commission, or whether a discouraged factor
nonetheless justifies departure because it is present in some
unusual or exceptional way, are matters determined in large part
by comparison with the facts of other Guidelines cases.” Id. at
98. Section 5K2.14, entitled “Public Welfare (Policy Statement),”
gives an example of certain unusual circumstances that may warrant
departure:
If national security, public health, or safety was
significantly endangered, the court may increase the
sentence above the guideline range to reflect the nature
and circumstances of the offense.
U.S. SENTENCING GUIDELINES MANUAL, § 5K2.14 (policy statement).
Pursuant to these provisions, the district court did not
abuse its discretion in finding that the exceptional circumstances
of this unusual case cause it to fall outside of the heartland of
cases in the Guideline governing Ferguson’s sentence for a
violation of 18 U.S.C. § 922(d)(1) – § 2K2.1. The high number of
traces, the types of crimes where guns were recovered (including
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narcotics, homicide, kidnapping and robbery), and the disparate
time to crime statistic presents a situation where “public health,
or safety was significantly endangered” to an extraordinary
degree. Further, as evidenced by the transcript from the
sentencing hearing, the district court first considered, but then
rejected as unjustified on the facts of this case, a gradual
increase in Ferguson’s total offense level. In these
circumstances, the five point departure is reasonable. See, e.g.,
United States v. McKenzie, 991 F.2d 203, 206 (5th Cir. 1993);
United States v. Webb, 950 F.2d 226, 231-32 (5th Cir. 1991).
V. CONCLUSION
We AFFIRM Ferguson’s judgment of conviction and sentence.
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