* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 21 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. DEMAREO LAMONT DAVIS, Defendant - Appellant. No. 98-5183 (D.C. No. 97-CV-239) (N.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **

Mr. Davis, an inmate appearing pro se and in forma pauperis, seeks a certificate of appealability to appeal the districtcourt’s dismissal of his motion to vacate, set aside or correct his sentence, see 28 U.S.C. § 2255. Mr. Davis was convicted of three counts in connection with a 1993 attempted robbery of a federally-insured credit union. He was sentenced t o 60 months on count one,- 2 -

conspiracy to commit armed robbery of a credit unio n, 18 U.S.C. §§ 371, 2113(a) & (d); 96 months on count two, entering a federally insured credit union with the intent to commit armed robbery and aiding and abett ing, 18 U.S.C. §§ 2, 2113 (a) & (d); and 60 months on count three, using or carry ing a firearm during the commission of a crime of violence and aiding and ab etting in this offense, 18 U.S.C. §§ 2, 924(c)(1). The sentence on count thre e was consecutive to the sentences on counts one and two which ran concurren tly. Thus, Mr. Davis was sentenced to 156 months. Mr. Davis’s convictions and sentences were affirmedon direct appeal, see United States v. Davis , 40 F.3d 1069 (10th Cir. 1994), and certiorari rev iew was denied on April 24, 1995. On March 18, 1997, he fi led the instant § 2255 motion challenging his sentence. He claimed that counsel was ineffective at sentencing and on appeal because he either did not challenge o r properly challenge the district court’s sentence, including an upward depa rture under the Sentencing Guidelines. On appeal, Mr. Davis urges that a seven-level enhan cement under USSG § 2B3.1(b)(2)(A) (1993), may not be applied as a sp ecific offense characteristic for use or discharge of a firearm in connection wit h an armed robbery, see USSG § 2B3.1(a), when a defendant also is sentenced for a violation of § 924(c), see1 USSG § 2B3.1 Robbery(1993) provides in pertinent part:

. . . . (b) Specific Offense Characteristics

. . . . (2) (A) If a firearm was discharged, increase by 7 levels; USSG § 2K2.4 Use of Firearm . . . During or in R elation to Certain Crimes (1993) provides in pertinent part:

. . . . Application Notes: (2) Where a sentence under this section is imposed i n conjunction with a sentence for an underlying offense, any specific of fense characteristic for the possession, use, or discharg e of an explosive or firearm (e.g. , § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be appl ied in respect to the guideline for an underlying offense. In a few cases, the offense level for the underlyin g offense determined under the preceding paragraph may resultin a guideline range that, when combined with the mandatory consec utive sentence under 18 U.S.C. § 844(h), § 924(c), or § 929(a), pr oduces a total maximum penalty that is less than the maximum of th e guideline range that would have resulted had there not been acount of conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a), (i.e. , the guideline range that would have resulted if the enh ancements for possession, use, or discharge of a firearm had been applied). In such a case, an upward departure may be warranted so that the conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) doe s not result in a decrease in the total punishment. An upward depart ure under this paragraph shall not exceed the maximum of the guide line range that would have resulted had there not been a count of c onviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a). - 3 - USSG § 2K2.4 n.2; 1 United States v. Blake , 59 F.3d 138, 140 (10th Cir. 1995). He next contends that the district court engaged in impermissible “double counting” when it departed upward on count two. Th e district court departed- 4 -

based upon its finding that Mr. Davis had fired a h andgun three times in the credit union with the intent of causing death or great bod ily harm to the credit union’s uniformed security guard and others in order to esc ape. See R. doc. 87 at 10 (quoting Sentencing Tr. at 25-26). In making an up ward departure, the district court analogized to the seven-level enhancement forarmed robbery under USSG § 2B3.1(b)(2)(A), and departed seven levels on count two. See R. doc. 108 at 5; doc. 87 at 10 (excerpt of sentencing transcript). Accordingly, with respect to the attempted robbery count, the offense level went fro m 22 (41 to 51 months) to 29 (87-108 months), and the district court sentenced h im to 96 months, to be followed by 60 months under § 924(c)(1). Of course, Mr. Davis’s sentencing claim is procedur ally barred because he failed to raise it on direct appeal; hence his reso rt to ineffective assistance of counsel. To prevail upon an ineffective assistance of counsel claim, a defendant must show deficient performance and prejudice. See Strickland v. Washington , 466 U.S. 668, 687 (1984). We do not think that Mr. Davis’s argument is a “dead bang winner,” one obvious from the trial record that would have resulted in a different result. See United States v. Kissick , 69 F.3d 1048, 1054-56 (10th Cir. 1995); United States v. Cook , 45 F.3d 388, 392-95 (10th Cir. 1995). Hence, we cannot conclude that counsel was ineffective for ra ising it. Counsel could well conclude that the seven-level upward departure on c ount two was neither an- 5 -

enhancement, nor a prohibited upward departure unde r USSG § 2K2.4 n.2. Rather, it appears that the district court departed pursuant to 18 U.S.C. § 3553(b) and USSG §§ 5K2.0 and 5K2.6 (weapons). A unitary abuse of discretion standard governs our review of departures, although Mr. Davis’s claim involves a legal questio n (whether a departure related to the firearm on an armed robbery count is permiss ible given the § 924(c) conviction) that we review de novo. See Koon v. United States , 518 U.S. 81, 100 (1996); United States v. Collins , 122 F.3d 1297, 1303 (10th Cir. 1997). Notwithstanding the § 924(c)(1) conviction, an upward departure pursuant to § 5K2.6 is possible in unusual circumstances. See United States v. Nakagawa , 924 F.2d 800, 804-05 (9th Cir. 1991) (number of fir earms). To accept Mr. Davis’s argument that an upward departure is not po ssible in these circumstances would be to hold that the exclusive basis of a depa rture related to firearms is contained in USSG § 2K2.4 n.2 when a defendant is c onvicted of robbery and using and carrying a firearm. This is not persuasi ve because § 5K2.6 specifically allows departures based upon “the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others,” items that were not expressly factored into the sentencing pro visions affecting Mr. Davis prior to the departure. Finally, Mr. Davis’s reliance on United States v. B ond , 22 F.3d 662 (6th- 6 -

Cir. 1994), is not well placed. That case involved a departure after the district court applied the enhancement for discharge of a fi rearm, see id. at 672-73; in this case, no such enhancement was applied. That is why we may conclude that the district court did not abuse its discretion when itconcluded that Mr. Davis’s wanton conduct in firing the handgun three times atcredit union personnel takes this case out of the heartland. See Collins , 122 F.3d at 1301-02. Further, under our deferential standard of review, an adequate fac tual basis exists for the departure and the degree of departure (45 months) i s not unreasonable. See id. at 1302-03 We GRANT Mr. Davis a certificate of appealability a nd AFFIRM the judgment of the district court. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge