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

______________________________________________________ (December 23, 1992) Before KING, JOHNSON, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Defendants were co nvicted 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 ma n 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,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 license d . . . 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 Stevens had been convicted of three burglaries and the Lo uisiana

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 we apons Stevens would purchase for Tony. Stevens

purchased 24 guns chosen by Gutierrez, 20 of which were semiautomatic 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 in2 18 U.S.C. § 922(g)(1) states:

(g) It shall be unlawful for any person --

(1) who is under indictmen t for, or who has

been convicted in any cour t of, a crime

punishable by imprisonment for a term

exceeding one year;

to ship or transport any firear m 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 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 guid e lines, and sentenced him to 188 months

imprisonment, supervised release of five years, and a $10,000 fine.

In sentencin g 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

Gutierr ez objected during sentencing, but both now complain on

appeal, asking this Court to reverse and remand for resentencing.

ANALYSIS

Because Appellants fail ed to object during sentencing, we

review their sentences for plain error. U nited States v. Navejar

,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.

4 963 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 vi olation 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

c o nvictions 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

t han $25,000 and imprisoned not less than 15

years . . .

In turn, § 924(e) activated the Armed Career Criminal provision, §

4B1.4, of the sentencing g uidelines, 3 and the court sentenced

Stevens accordingly.

Steve ns 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 of5

his contention, Stevens argues that his three burglary convictions

should be treated as one viol ent 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

consolida ted 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 a ll 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.

Furthe rmore, 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 "c ommitted [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

occas ions; 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 §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

endange red others. The discharge of a firearm might

warrant a substantial sentence increase.

6 924(e), and he was properly sentenced under § 4B1.4. 4

GUTIERREZ'S SENTENCE

When sentencing Gutie rrez, the court found a total offense

lev el 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 sentenci ng guidelines § 5K2.6, 5

permitting upward departure i f 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 trans portation 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 committed6 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 co mmission 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 with or without the use of a weapon, otherwise, every firearms

sentence would require upward departure. Allowing upward departure

for eve ry firearms offense seems contrary to the Sentencing

Commission's intentio n that courts rarely depart from the

guidelines. S ee

, U.S.S.G. at 1.6 (1990). We therefore find §

5K2.6 an inc orrect basis for departing upward in sentencing

Gutierrez and constitutes plain error.

Second, the court determined that t he sentencing guidelines

did not consider Gutierre z'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 t he 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 carry8 U.S.S.G. Ch.1, Pt.A, Intro. comment 4(b) (1990).

8 over into his sentencing. In other words, the Commission sought to

control count manipulatio n 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 Appel lant, and a sentencing court that

concluded that the dangerous natu re of this conduct warranted an

upward departure. The court believed, and we agree, that a

crim inal 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

f or 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 under9 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 weapo ns,

assault rifles." U.S.S.G. § 2K2.2, comment (n.2) (1990).

9 App lication 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 applic able 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 speci fically

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 depa rture because the o nly firearms

warranting such departure unde r § 2K2.2 Application Note 2 were

those listed by the Commission as e xamples 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 w eapons 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.10 CONCLUSION

For the foregoing reasons, Stevens's sentence is AFFIRMED.

Gutierrez's sentence, however, is VACATED and the case is REMANDED

for resentencing.