UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-2094
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
OSCAR MEDINA-GUTIERREZ and FULTON STEVENS, JR.,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Texas
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(December 23, 1992)
Before KING, JOHNSON, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Defendants were convicted for firearms offenses, and appeal
their sentences. Finding no error, we affirm defendant Stevens's
sentence. Because the district court improperly departed upward
from the sentencing guidelines when sentencing Gutierrez, however,
we vacate his sentence and remand for resentencing.
BACKGROUND
In 1990 and 1991 Appellant Stevens repeatedly purchased guns
from Texas pawn shops, intending to resell them to a man named
Tony, a New York resident who then sold the guns in New York. Each
time he purchased these guns, Stevens was required to complete
Federal Bureau of Alcohol, Tobacco and Firearms (ATF) forms. On
these forms, he falsely asserted that he was not a convicted felon,
and that he was the true purchaser of the weapons. In reality,
Stevens had been convicted of three burglaries and the Louisiana
offense of aggravated crime against nature.
In June 1991, Stevens met Appellant Gutierrez who claimed to
be Tony's friend. Gutierrez accompanied Stevens to pawn shops to
choose the weapons Stevens would purchase for Tony. Stevens
purchased 24 guns chosen by Gutierrez, 20 of which were semi-
automatic handguns.
ATF agents arrested Stevens and Gutierrez in July 1991. Both
were indicted for knowingly making false statements in connection
with the gun purchases in violation of 18 U.S.C. § 922(a)(6), and
for aiding and abetting in violation of 18 U.S.C. §2.1 Stevens was
also indicted for possession of a firearm by a convicted felon in
1
18 U.S.C. § 922(a)(6) states in part:
(a) It shall be unlawful --
(6) for any person in connection with the
acquisition of any firearm or ammunition from
a licensed . . . dealer . . . to make any
false or fictitious oral or written statement
. . . intended or likely to deceive . . .
dealer . . . with respect to any fact material
to the lawfulness of the sale or other
disposition such firearm or ammunition under
the provisions of this chapter.
18 U.S.C. § 2 states:
(a) Whoever commits an offense against the United States
or aides, abets, counsels, commands, induces, or procures
its commission, is punishable as a principle.
(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principle.
2
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).2 Both men
pleaded guilty to the crimes charged. In sentencing Stevens, the
court applied the Armed Career Criminal Provision, § 4B1.4, of the
sentencing guidelines, and sentenced him to 188 months
imprisonment, supervised release of five years, and a $10,000 fine.
In sentencing Gutierrez, the court departed upward from the
guidelines, and sentenced him to 30 months imprisonment, supervised
released of three years, and a $25,000 fine. Neither Stevens nor
Gutierrez objected during sentencing, but both now complain on
appeal, asking this Court to reverse and remand for resentencing.
ANALYSIS
Because Appellants failed to object during sentencing, we
review their sentences for plain error. United States v. Navejar,
2
18 U.S.C. § 922(g)(1) states:
(g) It shall be unlawful for any person --
(1) who is under indictment for, or who has
been convicted in any court of, a crime
punishable by imprisonment for a term
exceeding one year;
to ship or transport any firearm or ammunition in
interstate or foreign commerce.
18 U.S.C. § 924(e)(1) states:
(e)(1) In the case of a person who violates § 922(g) of
this title and has three previous convictions by any
court referred to in § 922(g)(1) of this title for a
violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall be fined not more than $25,000 and
imprisoned not less than 15 years, and, notwithstanding
any other provision of law, the court shall not suspend
the sentence of or grant a probationary sentence to, such
person with respect to the conviction under § 922(g), and
such person shall not be eligible for parole with respect
to the sentence imposed under this subsection.
3
963 F.2d 732, 734 (5th Cir. 1992). "[Plain error] is a mistake so
fundamental that it constitutes a 'miscarriage of justice.'" Id.
(quoting United States v. Lopez, 923 F.2d 47 (5th Cir. 1991), cert.
denied, 111 S.Ct. 2032 (1991)).
STEVENS'S SENTENCE
The following path led the court to § 4B1.4 of the sentencing
guidelines, under which Stevens was sentenced. Stevens's three
prior burglary convictions and his aggravated crime against nature
conviction, when combined with his guilty plea for shipping
firearms interstate in violation of 18 U.S.C. § 922(g)(1),
activated 18 U.S.C. § 924(e). Section 924(e) provides:
In the case of a person who violates § 922(g)
of this title and has three previous
convictions by any court referred to in §
922(g)(1) of this title for a violent felony .
. . committed on occasions different from one
another, such person shall be fined not more
than $25,000 and imprisoned not less than 15
years . . .
In turn, § 924(e) activated the Armed Career Criminal provision, §
4B1.4, of the sentencing guidelines,3 and the court sentenced
Stevens accordingly.
Stevens argues on appeal that the court erred in sentencing
him and never should have arrived at § 4B1.4. Specifically, he
contends that he does not have three violent felony convictions so
as to activate § 924(e), and consequently, § 4B1.4. In support of
3
Section 4B1.4(a) provides:
(a) A defendant who is subject to an enhanced sentence
under the provisions of 18 U.S.C. § 924(e) is an armed
career criminal.
4
his contention, Stevens argues that his three burglary convictions
should be treated as one violent felony for sentencing purposes.
Stevens relies upon the commentary to § 4A1.2 stating that cases
are considered "related" if they are part of a common plan, or are
consolidated for trial or sentencing. U.S.S.G. § 4A1.2, comment
(n.3) (1990). He argues that because his three burglaries were
committed within weeks of one another as part of a common plan, and
he was sentenced for all three on the same day, the three
convictions are therefore "related" and should be treated as one
for sentencing purposes.
Stevens's reliance on § 4A1.2 commentary is entirely
misplaced. Stevens was sentenced under § 4B1.4, not § 4A1.2.
Furthermore, the commentary to § 4B1.4 specifically states that
"the time periods for the counting of prior sentences under § 4A1.2
are not "applicable to the determination of whether a defendant is
subject to an enhanced sentence under 18 U.S.C. § 924(e)."
U.S.S.G. § 4B1.4, comment (n.1) (1990). Finally, § 924(e)
explicitly applies to defendants who "committed [three violent
felonies] on occasions different from one another." 18 U.S.C. §
924(e) (emphasis added). Thus, what matters under § 924(e) is
whether three violent felonies were committed on different
occasions; whether they are considered "related cases" under §
4A1.2 is irrelevant.
Stevens committed three burglaries on three different
occasions. Therefore, his sentence was properly enhanced under §
5
924(e), and he was properly sentenced under § 4B1.4.4
GUTIERREZ'S SENTENCE
When sentencing Gutierrez, the court found a total offense
level of twelve and a criminal history category of one, with a
corresponding sentencing guideline range of ten to sixteen months.
The court departed upward from this range for three reasons, and
sentenced Gutierrez to 30 months.
First, the court looked to sentencing guidelines § 5K2.6,5
permitting upward departure if a weapon or dangerous
instrumentality was used or possessed during commission of the
crime. We hold that § 5K2.6 is an improper basis for upward
departure in this case.
The transportation of firearms in interstate commerce is,
technically, a crime in which weapons are used, and therefore seems
to warrant a § 5K2.6 upward departure. Practically speaking,
however, this section must refer to crimes that may be committed
4
Stevens also argues that his aggravated crime against nature
conviction should not be counted as one of the three violent
felonies needed to activate enhanced sentencing under § 924(e) and
§ 4B1.4. Because we find that Stevens's three burglary convictions
suffice as the three violent felonies needed, we decline to address
whether an aggravated crime against nature is a violent felony for
§ 924(e) and § 4B1.4 purposes.
5
Section 5K2.6 of the sentencing guidelines provides:
If a weapon or dangerous instrumentality was used or
possessed in the commission of the offense the court may
increase the sentence above the authorized guideline
range. The extent of the increase ordinarily should
depend on the dangerousness of the weapon, the manner in
which it was used, and the extent to which its use
endangered others. The discharge of a firearm might
warrant a substantial sentence increase.
6
with or without the use of a weapon, otherwise, every firearms
sentence would require upward departure. Allowing upward departure
for every firearms offense seems contrary to the Sentencing
Commission's intention that courts rarely depart from the
guidelines. See, U.S.S.G. at 1.6 (1990). We therefore find §
5K2.6 an incorrect basis for departing upward in sentencing
Gutierrez and constitutes plain error.
Second, the court determined that the sentencing guidelines
did not consider Gutierrez's frequent purchases of weapons,6 and
that the repeated nature of his conduct warranted upward departure.
We find no error in this basis for departure.
Gutierrez argues that upward departure on this basis was
improper according to the sentencing guidelines introduction.
Gutierrez has misinterpreted the introduction, however, to state
that sentencing guidelines provide sentencing based upon the total
number of weapons involved, regardless of the number of
transactions that took place to acquire the weapons.7 In fact, the
introduction expresses the Sentencing Commission's concern that
prosecutorial discretion over a defendant's indictment might carry
6
Section 5K2.0 allows for departure from the applicable guideline
range "if the court finds 'that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the sentencing commission in
formulating the guidelines that such result in a sentence different
from that described.'"
7
"[T]he guidelines treat a three count indictment, each count of
which charges sale of 100 grams of heroin or theft of $10,000 the
same as a single count indictment charging sale of 300 grams of
heroin or $30,000." U.S.S.G. Ch.1, Pt.A, Intro. comment 4(a)
(1990).
7
over into his sentencing. In other words, the Commission sought to
control count manipulation that arises when, for example, a
prosecutor charges one defendant with three counts of selling one
gram of heroin, but later charges another defendant who committed
the same offense with one count of selling three grams of heroin.
In the commission's eyes, both defendants should receive equal
sentences.
In this case, we are not concerned with potential manipulation
of repeated counts against Appellant. Rather, we are faced with
repeated conduct by Appellant, and a sentencing court that
concluded that the dangerous nature of this conduct warranted an
upward departure. The court believed, and we agree, that a
criminal defendant who has repeatedly engaged in an illegal
activity evidences a dangerousness not apparent in a defendant who
has acted illegally only once. The sentencing guidelines allow for
upward departure in atypical cases,8 and we agree with the district
court that this is such a case.
As previously stated, we review the district court's departure
for plain error. We do not find that the court plainly erred by
using the repeated nature of Appellant's conduct as a basis for
departing upward in sentencing.
The court's third basis for upward departure was its
determination that the twenty semi-automatic weapons purchased were
military-type weapons, thereby warranting an upward departure under
8
U.S.S.G. Ch.1, Pt.A, Intro. comment 4(b) (1990).
8
Application Note 2 of § 2K2.2.9 We find no plain error in this
basis for departure.
In reaching its conclusion, the district court considered and
rejected the reasoning in United States v. Schular, 907 F.2d 294
(2nd Cir. 1990). In that case, the Second Circuit held:
Congress, in enacting various firearm control
laws (and the Sentencing Commission in
defining their applicable offense levels),
divided firearms into two relevant classes,
machine guns and all other firearms. . . .
Even upon reconsideration in the 1989
amendment to the Sentencing Guidelines, the
Sentencing Commission adhered to the statutory
classifications and did not specifically
distinguish semi-automatic firearms.
Schular, 907 F.2d at 297 (citations omitted).
The Second Circuit went on to hold that semi-automatic weapons
did not warrant upward departure because the only firearms
warranting such departure under § 2K2.2 Application Note 2 were
those listed by the Commission as examples in the note: machine
guns, automatic weapons, and assault rifles. In rejecting the
Second Circuit's reasoning, the district court determined that the
military-type weapons listed in the application note were only a
list of examples; a list that was not exclusive. The court then
concluded that the twenty semi-automatic weapons were military-type
weapons because the military has issued such weapons, specifically
the Colt 45, and 9 MM Berreta. We decline to hold that the court
plainly erred in reaching this conclusion.
9
Application Note 2 of § 2K2.2 states in part that "[a] upward
departure especially may be warranted in the case of large numbers
of military type weapons (e.g., machine guns, automatic weapons,
assault rifles." U.S.S.G. § 2K2.2, comment (n.2) (1990).
9
CONCLUSION
For the foregoing reasons, Stevens's sentence is AFFIRMED.
Gutierrez's sentence, however, is VACATED and the case is REMANDED
for resentencing.
10