United States v. Wilson

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4768

DAVID A. WILSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-95-6-A)

Argued: October 26, 1998

Decided: December 31, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
BOYLE, Chief United States District Judge for the
Eastern District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel Knowlton Read, Jr., JESSEE & READ, P.C.,
Abingdon, Virginia, for Appellant. Rick A. Mountcastle, Assistant
United States Attorney, Abingdon, Virginia, for Appellee. ON
BRIEF: Robert P. Crouch, Jr., United States Attorney, Abingdon,
Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

David A. Wilson challenges his sentences for controlled substances
and weapons violations. Finding no reversible error, we affirm.

I.

Between January 29 and January 31, 1995, Wilson made several
sales of marijuana and firearms to Clifton Laughlin, a police infor-
mant. See United States v. Wilson, 115 F.3d 1185, 1187 (4th Cir.
1997). A jury convicted Wilson on six counts: using or carrying a
firearm during and in relation to a drug trafficking crime in violation
of 18 U.S.C. § 924(c) (count one); possessing marijuana with intent
to distribute in violation of 21 U.S.C. § 841(a)(1) (count two); pos-
sessing a firearm after felony conviction in violation of 18 U.S.C.
§ 922(g)(1) (counts three and seven); possessing a firearm with oblit-
erated serial number in violation of 18 U.S.C. § 922(k) (count four);
and possessing an unregistered short-barrel rifle in violation of 26
U.S.C. §§ 5841, 5861(d) and 5871 (count eight).

After receipt of a presentence investigation report, the district court
sentenced Wilson to 120 months on count one; section 924(c)
required that sentence to run consecutively with any other sentence
imposed. The district court then grouped the other five counts. As to
these counts, the court calculated Wilson's criminal history category
(CHC) as II and his offense level as 24, yielding a sentencing range
of 51-71 months. Pursuant to U.S.S.G. § 4A1.3 and citing Wilson's
violent criminal history, the district court departed upward to reach a
sentence of 120 months for the grouped counts. The court sentenced
Wilson to serve 60 months for counts two and four to run concur-
rently with a sentence of 120 months for counts three, seven and
eight. Wilson's total sentence therefore was 240 months, plus a three-
year supervised release period.

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Subsequently, we reversed Wilson's § 924(c) conviction and
remanded the case to the district court for resentencing. See Wilson,
115 F.3d 1185. At resentencing, the district court applied the four-
level enhancement in U.S.S.G. § 2K2.1(b)(5) for possession of a
weapon in connection with another felony. To avoid double counting,
this enhancement had not been applied in the first sentence, in which
Wilson had been convicted of and sentenced under§ 924(c). After
considering Wilson's prior convictions and criminal activities, the
court departed upward, ultimately calculating Wilson's CHC as VI
and his offense level as 31, which established a sentencing guideline
range of 188 to 235 months. The court sentenced Wilson to terms of
60 months on each of counts two and four to run concurrently with
terms of 120 months on each of counts three and seven, as well as a
term of 115 months for count eight to run consecutively with the first
four counts, which produced a total sentence of 235 months. The
court also gave Wilson 31 months credit for time served.

Wilson appeals, asserting that the district court erred in sentencing
him. We review a district court's upward departure from the sentenc-
ing guidelines for abuse of discretion. If the district court bases its
departure decision on a factual determination, our review of that
underlying determination is for clear error. See United States v.
Hairston, 96 F.3d 102, 106-07 (4th Cir. 1996). If the court's departure
is based on a misinterpretation of the guidelines, we review the dis-
trict court's reading of that underlying rule de novo. See id.

II.

Wilson initially contends that the district court failed to comply
with United States v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992).

A.

Under U.S.S.G. § 4A1.3, a court may depart upward from the
guideline range if "reliable information indicates that the criminal his-
tory category does not adequately reflect the seriousness of the defen-
dant's past criminal conduct or the likelihood that the defendant will
commit other crimes." U.S. Sentencing Guidelines Manual, § 4A1.3
(November 1994).

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We held in Rusher that when a sentencing court departs upward
pursuant to this provision, the court must provide a"short clear writ-
ten statement or a reasoned statement from the bench" supporting its
specific reasons for its departure from the guideline range. See
Rusher, 966 F.2d at 882. The court is "not required to `incant the spe-
cific language used in the guidelines, . . . [but should] identify clearly
the aggravating factors and its reasons for connecting them to the per-
missible grounds for departure under 4A1.3.'" Id. (quoting United
States v. De Luna-Trujillo, 868 F.2d 122, 124 (5th Cir. 1989)). The
sentencing court should decide what aspects of the defendant's crimi-
nal history it thinks the guidelines did not adequately consider in set-
ting the criminal history category, and should "determine on the
record whether these aspects are of sufficient importance and magni-
tude to justify departure." Id. at 883."The requirement of providing
specific reasons for departing `is not satisfied by a general recitation
that the defendant's criminal history category or offense level under-
represents, in the sentencing court's opinion, the defendant's criminal
record or the seriousness of the charged offense.'" Id. (quoting United
States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989)). This is so
because:

[t]o allow a judge summarily to depart from the guidelines
without explaining why would be to return to sentencing
practices rejected by Congress. Congress intended that the
judge provide the most detailed explanation for a sentence
beyond the boundary of the guideline range . . . . Articulat-
ing the reasons for departing is also necessary to allow
informed appellate review of the judge's decision to depart.

Id. at 882.

During Wilson's first sentencing hearing, the district court departed
upward from the guideline range of 63 to 78 months for the grouped
counts, i.e., counts two, three, four, seven and eight. The district court
stated the following reasons for departing upward to 120 months:

Mr. Wilson has an extensive background with law
enforcement and exposure to the criminal justice system
beginning at age 13 and continuing up to the present time.
This had a result of his being incarcerated the majority of

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 his adult life. Even though he's been on probation and
parole, he has continued to commit additional crimes. His
parole has been revoked on at least two occasions, and he
has escaped from custody on one other occasion during
which time he remained at large for nearly six months.

He's been arrested on at least three occasions since being
paroled from the Tennessee State system in May of 1992.
Other than this offense, the other two arrests involved vio-
lence.

The most disturbing aspect of Mr. Wilson's past criminal
history is his violent nature. As evidenced in the presentence
report, he murdered a 16 year old and assaulted two other
individuals with a knife. In addition, he has a charge pend-
ing which involves the stabbing of another individual.

It is evident that Mr. Wilson has little regard for life or
the well being of others. It also appears that Mr. Wilson has
learned little from his past experiences. His criminal record,
in this Court's opinion, is so violent, chronic and excessive
as to lead to the conclusion that his criminal history is sig-
nificantly more serious than that of a typical category three
offender contemplated by the Sentencing Commission in
promulgating the guidelines.

When resentencing Wilson, the district judge specifically referred
to the upward departure in the first sentencing and summarized the
reasons he had given in that proceeding, stating that "Mr. Wilson had
. . . a large number of criminal violations that did not count in deter-
mining his criminal history category under the sentencing guidelines,
and I am departing upward in this case because his actual criminal
history is understated when the guidelines are strictly followed." The
court then proceeded to discuss each uncounted conviction and
instance of criminal conduct and assigned criminal history points
accordingly. The court added 11 criminal history points for two sepa-
rate larceny convictions, an attempted burglary conviction, and an
assault and battery conviction. The court assigned six additional crim-
inal history points for an incident outside a bar in 1994 during which
Wilson stabbed a man and then brandished a pistol at a crowd of

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bystanders. He summed up the defendant's extensive criminal back-
ground as follows:

In view of the circumstances involved in the instant
offense, and by looking at the defendant's criminal history,
it can be ascertained that throughout his adult life he has
continued the pattern of criminal conduct.

In looking at this ongoing pattern of criminal conduct it
can be determined that Mr. Wilson has an unusual penchant
for serious criminality sufficient to remove him from the run
of the mill or other offenders that are ordinarily sentenced
by this Court.

Although Wilson briefly contends that his past convictions and
criminal conduct did not provide sufficient support for an upward
departure of this magnitude, that contention is meritless. Wilson's
principal argument is that the district court failed to provide, as
Rusher requires, articulation of the reasons for this departure. That
argument presents a slightly closer question but we find that the dis-
trict court's explanation satisfied the Rusher requirement that a court
provide specific reasons for an upward departure.

The district court incorporated its extensive statement of reasons
from the first sentencing into the resentencing. The court clearly iden-
tified the aggravating factors that were not otherwise adequately rep-
resented in Wilson's criminal history. It stated that Wilson committed
numerous crimes, that Wilson continued to commit crimes while on
probation and parole, and that many of the crimes were exceptionally
violent and demonstrated a lack of regard for human life. The district
court further articulated which aspects of the defendant's criminal his-
tory it thought the guidelines did not adequately consider in setting
the criminal history category. Specifically, it stated that Wilson had
murdered a 16-year-old with a knife and assaulted two other individu-
als with a knife.

Rusher requires that a court articulate its reasons for an upward
departure to prevent judges from baselessly departing from the guide-
line range. See Rusher, 966 F.2d at 882. It is clear that the court's
departure here was neither baseless nor unwarranted under § 4A1.3.

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This Rusher requirement also serves to allow informed appellate
review of sentences. Id. The district court's explanation adequately
satisfies that purpose, as well. We are able to determine on what
grounds the district court departed, the amount of criminal history
points the court assigned to each past conviction or criminal activity,
and the rationale for the departure.

B.

Rusher further mandates that in departing upward the sentencing
court must sequentially address each sentencing category, "referring
first to the next higher [criminal history] category" and moving on to
a still higher category "only upon a finding that the next higher cate-
gory fails "adequately to reflect the seriousness of the defendant's
record." 966 F.2d at 884; see also United States v. Cash, 983 F.2d
558, 561 (4th Cir. 1992) (court can "move to successively higher cate-
gories only upon a finding that the prior category does not provide a
sentence that adequately reflects the seriousness of the defendant's
criminal conduct"). When a court determines that the extent and
nature of the defendant's criminal history warrant an upward depar-
ture from CHC VI, the court should structure the departure by moving
incrementally "down" the sentencing table to the next higher offense
level under CHC VI until it finds a guideline range appropriate to the
case. See U.S.S.G. § 4A1.3.

In Rusher, we vacated a sentence when the district court departed
from CHC III to CHC VI without any consideration of the intermedi-
ate categories. See 966 F.2d at 884; see also United States v.
Harrison, 58 F.3d 115, 118 (4th Cir. 1995) (vacating sentence where
there was "not even a hint . . . that the district court attempted to com-
ply with the procedural dictates" in departing above CHC VI from
offense level 27 to level 31).

In the present case, however, the district court expressly considered
each successive criminal history category, and did so on the record.
At resentencing, the court set the initial offense level at 28 and the
CHC at III. It found that CHC III "failed to adequately reflect the seri-
ousness of defendant's record, and underrepresents the likelihood that
he will commit future crimes." The court then added two criminal his-
tory points for a 1979 assault and battery, resulting in a CHC of IV.

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The court found that a CHC IV failed to adequately represent the seri-
ousness of Wilson's record, and so added three additional points for
a 1975 larceny, placing Wilson in CHC V. Again, the court stated that
this level was insufficient to represent the seriousness of Wilson's
record; it applied three criminal history points for a 1976 burglary
conviction increasing Wilson's CHC to VI.

Finding that CHC VI still failed to adequately represent the seri-
ousness of Wilson's record and the likelihood that he would commit
further crimes, the court added three more criminal history points for
a 1977 larceny conviction. Because the court had reached CHC VI,
the highest level, it proceeded "down the table" adding one point to
the offense level, bringing the total to level 29. Again the court
repeated that it considered that offense level inadequate. The court
then added three more criminal history points for a 1994 knife attack.
That increased the offense level to 30. Because it found this level was
inadequate, the court added three additional points for the brandishing
of a firearm arising from the same incident. It thus increased the
offense level to 31. Finally, finding that an "offense level of 31 and
criminal history category of six adequately reflects the seriousness of
the defendant's record," the court chose not to apply additional crimi-
nal history points for a 1980 escape conviction.

The district court thus satisfied Rusher's second procedural dictate.
The court referred to each successive criminal history category and
offense level on the record, and found that each level underrepre-
sented both the seriousness of the defendant's record and the likeli-
hood that the defendant would commit further crimes.*
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*Wilson also argues that the district court did not have "reliable infor-
mation" when it determined that the 1994 assault and brandishing inci-
dent could justify a departure from the guideline range. (An attempted
second degree murder charge for this conduct was pending at the time
of the first sentencing. At the time of resentencing, the charge had been
dismissed because the victim died of causes unrelated to the attempted
murder.) The guidelines do not require that only convictions be used to
measure criminal history. See U.S.S.G. § 4A1.3(e). Any information may
be considered, so long as it has sufficient indicia of reliability to support
its probable accuracy. See U.S.S.G. § 6A1.3, commentary. The district
court relied on signed statements of the victim and eight witnesses,

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III.

Wilson next contends that the district court erred in increasing his
base offense level pursuant to § 2K2.1(b)(5). That guideline provides
the sentencing court may increase the base offense level by four:

[i]f the defendant used or possessed any firearm or ammuni-
tion in connection with another felony offense; or possessed
or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or pos-
sessed in connection with another felony offense

U.S.S.G. § 2K2.1(b)(5).

The district court found that Wilson's conduct was covered by both
parts of the guideline. We conclude that the court's determination that
Wilson transferred the firearm with knowledge, intent, or reason to
believe that it would be used or possessed in connection with a felony
was adequately supported by the record. Because the two require-
ments of § 2K2.1(b)(5) are disjunctive, we need not decide whether
Wilson himself used or possessed the firearm in connection with
another felony.

In United States v. Cutler, 36 F.2d 406, 407 (4th Cir. 1994), we
held that the sale of a firearm is sufficient to satisfy § 2K2.1(b)(5) if
the seller had reason to know that the firearm would end up in the
hands of a drug dealer. In the present case, the district court found
that, because Wilson had sold the informant drugs on two occasions
prior to selling him a .22 caliber rifle on January 31, 1995, Wilson
had reason to believe that the weapon would be used or possessed in
connection with the informant's drug business. Wilson maintains that
because he only sold the informant two ounces of marijuana -- an
amount consistent with personal use rather than dealing -- he had no
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which were consistent in all critical respects. The statements indicated
that Wilson stabbed a man outside a bar and proceeded to wave a pistol
at a crowd of bystanders. These statements constitute reliable informa-
tion and the court did not abuse its discretion in using this information
for the purpose of its upward departure.

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reason to know that the informant would be entering the drug trade
and so no basis to believe that the weapon would be used in connec-
tion with the resale of the drugs.

There is, however, ample evidence in the trial record to support the
district court's finding. On January 29, 1995, when Wilson first
approached Laughlin, Wilson stated that Laughlin could make money
from the marijuana that Wilson would sell him. Wilson offered (and
Laughlin agreed) that Wilson would "front" Laughlin an ounce of
marijuana with the understanding that Laughlin would pay Wilson the
next day. This clearly implies that Wilson expected Laughlin to sell
the marijuana. In a tape recording made by Laughlin during the pur-
chase of a second ounce of marijuana on January 30, 1995, Laughlin
told Wilson that he had "to make some damn money, David [Wilson].
. . . Everybody likes that [marijuana]. They seem to like it. Be able
to get anymore?" The next day, Wilson told Laughlin he could sell
Laughlin as much marijuana as he wanted. Again, these exchanges
indicate that Wilson believed that Laughlin intended to resell the mar-
ijuana.

On January 31, 1995, when Laughlin purchased the .22 caliber rifle
from Wilson, Laughlin told Wilson that he wanted to resell that rifle.
Focusing solely on this conversation, Wilson argues that he had no
reason to believe this rifle would be used in Laughlin's drug business.
But this evidence does not in any way contradict the two earlier con-
versations that do support this conclusion. Thus, looking to all the
record evidence, Laughlin's January 31 statements do not render the
district court's factual determination -- that Wilson had reason to
believe that Laughlin would use the .22 caliber rifle in the furtherance
of drug trafficking -- clearly erroneous. Even if Laughlin's statement
about reselling the rifle was sufficient to contradict the evidence
relied upon by the district court, it provides an independent reason to
uphold the enhancement. The January 31, 1995 conversation evi-
dences that Laughlin gave Wilson reason to believe that Laughlin
might resell the rifle, and thus it supplies proof of Wilson's knowl-
edge that the rifle "would be used or possessed in connection with
another felony"; specifically, that Laughlin would be selling an unreg-
istered short-barrel rifle. See 26 U.S.C.A.§ 5681(e) (West 1989)
(unlawful to transfer an unregistered firearm).

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For all of these reasons, the district court did not err in imposing
a four-level enhancement under § 2K2.1(b)(5).

IV.

Finally, Wilson claims that he is entitled to have his 115 month
sentence for possession of an unregistered rifle (count eight) reduced
by the amount of time he served prior to resentencing. He contends
that the current sentence violates the Double Jeopardy Clause because
the 115 month sentence, when combined with the 31 months already
served, exceeds the statutory maximum of 120 months for count
eight.

We have held that the Double Jeopardy Clause is not implicated
upon a defendant's resentencing unless the defendant has fully served
his sentence pertaining to those counts. See United States v. Smith,
115 F.3d 241, 246 (4th Cir. 1997) (recognizing that once one compo-
nent of a sentence is altered, "the whole sentence must be revisited").
Wilson is certainly entitled to, and was granted credit for, the 31
months he served prior to resentencing, but that credit is applied to
his entire 235 month sentence. Wilson is not entitled to choose one
component of his sentence, such as the sentence for count eight, and
have the credit applied to that component in particular. The court's
sentence of 115 months for count eight was in no way improper and
does not violate the Double Jeopardy Clause.

V.

For all these reasons the sentence imposed by the district court is

AFFIRMED.

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