UNITED STATES COURT OF APPEALS for the Fifth Circuit

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No. 92-2094 _____________________________________

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

______________________________________________________ (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

(a)(6), and

for aiding and abetting in violation of

Stevens was

also indicted for possession of a firearm by a convicted felon in

1

(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.

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

(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

(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.

(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

(5th Cir. 1992). "[Plain error] is a mistake so

fundamental that it constitutes a 'miscarriage of justice.'"

(quoting United States v. Lopez,

(5th Cir. 1991), cert.

denied,

(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

(g)(1),

activated

(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

(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

(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."

(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,

(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,

(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