1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-14-1995

United States v Bass

Precedential or Non-Precedential:

Docket 94-5352

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Recommended Citation

"United States v Bass" (1995). 1995 Decisions. Paper 93.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/93
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

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 No. 94-5352 

 

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 UNITED STATES OF AMERICA 

v. 

 DANNY BASS, 

 Appellant

 ---------- 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Criminal No. 93-00518-2) 

 

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 Argued Wednesday, January 25, 1995 

 BEFORE: BECKER, LEWIS and GARTH Circuit Judges

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 (Opinion filed April 14, 1995) 

 

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 Maria D. Noto 

 Amy B. Kershnar (Argued) 

 746 Highway 34 

 Matawan, New Jersey 07747 

 Attorneys for Appellant

 Faith S. Hochberg 

 Victor Ashrafi 

 Allan Tananbaum (Argued) 

 Office of United States 

 Attorney 

 970 Broad Street 

 Room 502 

 Newark, New Jersey 07102 

 Attorneys for Appellee
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 OPINION OF THE COURT 

 

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GARTH, Circuit Judge: 

 Danny Bass appeals the 37 month sentence imposed by the 

district court under the 1989 version of the Sentencing 

Guidelines (U.S.S.G. §§ 2K2.1 and 2K2.2) following his plea of 

guilty to charges of conspiracy to purchase and transport 

firearms in violation of 18 U.S.C. § 371 and 18 U.S.C. 

§ 922(a)(5)-(6). Bass argues that the district court erred in 

three respects: (1) that the court clearly erred in finding that 

he was a "leader or organizer" as defined in U.S.S.G. § 3B1.1; 

(2) that the court impermissibly departed upward four levels when 

it held that Bass "should have been possessed of knowledge or had 

reason to believe that they [the weapons Bass purchased] would be 

utilized to commit other types of felony crimes," app. 123; and 

(3) that the court violated the Fifth Amendment's due process 

clause by sentencing him at the top of the sentencing range based 

on the court's belief that Bass perjured himself. 

 The district court had jurisdiction pursuant to 18 

U.S.C. § 3551. We have appellate jurisdiction over the resulting 

sentence pursuant to 18 U.S.C. § 3742. 

 We find no merit in Bass' first and third challenges to 

his sentence and thus will affirm those aspects of the court's 

determination with only a brief discussion. Nonetheless, we 

conclude that the 1989 version of U.S.S.G. §§ 2K2.1 and 2K2.2 
already took into account the foreseeable criminal use of the 

weapons sold in the conspiracy. Because the guidelines do not 

permit an upward departure on this basis, we will vacate the 

sentence and remand for resentencing consistent with this 

opinion. 

I. 

 From late 1989 to October 1990, Danny Bass conspired 

with Milton Lodge, Sam Gilbert, Katrina Huskersen, Tim Crumm, and 

James Reid to buy firearms in Richmond, Virginia and to transport 

the guns for undocumented resale in Newark, New Jersey. The 

conspirators performed various functions in this plan, including 

the solicitation of straw buyers in Virginia, the transfer of 

funds from New Jersey to Virginia to pay for the purchases, the 

purchase and transportation of at least 81 guns to Newark, New 

Jersey, and the subsequent sale of the guns in the Newark area. 

The weapons sold in the course of the conspiracy included an 

undisclosed number of automatic firearms such as "Tec-9s." App. 

54. 

 While the government presented no evidence that Bass 

purchased, transported, or sold firearms himself, the government 

produced evidence that Bass worked with Lodge and Gilbert to 

organize the New Jersey operation and that Bass assisted in the 

Virginia operation. For example, Lodge testified that on at 

least two occasions he either delivered guns to Bass or notified 

Bass of the delivery of weapons in New Jersey. App. 82-84; 77-

80. By means of various wire transfers and personal 
transactions, Bass provided approximately $4,300 to $4,600 to 

Gilbert for the purpose of purchasing weapons in Virginia. App. 

61-66. A government expert testified that this amount of money 

would purchase approximately 50 semiautomatic handguns in 

Virginia. App. 62. The record suggests that other monetary 

transfers occurred but the amounts transferred were not known. 

 Grand jury testimony of Katrina Huskerson, a straw 

buyer in Virginia, was submitted at the sentencing hearing. In 

addition to other testimony, Huskerson testified that Bass and 

Sam Gilbert purchased the most firearms during the conspiracy. 

App. 199. 

 On October 21, 1993, the United States indicted Danny 

Bass and Samuel Gilbert for conspiring to purchase firearms 

illegally and to transport them in interstate commerce in 

violation of 18 U.S.C. § 371 and 18 U.S.C. § 922(a)(5)-(6). Bass 

pled guilty to the conspiracy on the condition that the 

government not seek a two level upward adjustment for obstruction 

of justice. 

 At sentencing, the district court calculated Bass' base 

offense level as six under the 1989 version U.S.S.G § 2K2.1. The 

court adjusted the sentence upward six levels based on the number 

of guns involved in the conspiracy. The court adjusted the 

sentence downward two levels for acceptance of responsibility. 

 After a hearing, the district court found that Bass had 

bankrolled a substantial part of the conspiracy's firearm 

purchases and/or other expenses and directed a significant 

portion of the conspiracy's New Jersey operations. The court 
thus found that Bass was a leader or organizer within the meaning 

of U.S.S.G. § 3B1.1 and adjusted the sentence upward an 

additional four levels. 

 The district court departed upward still another four 

levels because Bass "should have been possessed of knowledge or 

had reason to believe that [the guns] would be utilized to commit 

other types of felony crimes." App. 123. The court based this 

decision to depart upward on two factors. First, the court felt 

that the type of weapons sold in the conspiracy were "the favored 

weapons of the underworld." App. 119. Second, the court 

believed that the 1991 amendments to the guidelines, which now 

permit a four level adjustment in the offense level when "the 

defendant . . . possessed or transferred any firearm . . . with 

knowledge, intent, or reason to believe that it would be used or 

possessed in connection with another felony offense . . .," 

U.S.S.G. § 2K2.1(b)(5) (1994), demonstrated that the 1989 

guidelines did not take into account Bass' knowledge of the 

possible illegal uses of the firearms. The district court also 

noted that weapons attributable to the conspiracy had been linked 

to a police shootout and the murder of a New Jersey assistant 

district attorney. 

 Finally, the district court chose to sentence Bass at 

the top of the applicable sentencing range because the court 

found that Bass had perjured himself at an earlier suppression 

hearing. 

 Following these adjustments, the district court, having 

a range of 30-37 months from which it could sentence Bass, then 
sentenced Bass to 37 months in prison and three years supervised 

release. Bass filed a timely notice of appeal. 

II 

 Bass argues that the district court clearly erred when 

it found that he was a leader or organizer of the conspiracy. We 

will not disturb the factual findings of the district court 

unless they are clearly erroneous. United States v. Ortiz, 878 

F.2d 125, 126-27 (3d Cir. 1989). We must accept the district 

court's findings unless we are "left with the definite and firm 

conviction that a mistake has been committed." United States v. 

United States Gypsum Co., 333 U.S. 364, 395 (1948). 

 U.S.S.G. § 3B1.1(a) instructs the district court to 

increase a defendant's sentence by four levels "[i]f the 

defendant was an organizer or leader of a criminal activity that 

involved five or more participants . . . ." Application Note 

three of the 1989 guidelines instructs the court to consider the 

following factors in deciding whether the defendant is an 

organizer: the defendant's decision-making authority, the nature 

of the participation in the actual offenses, the recruitment of 

accomplices, the claimed right to a larger share of the proceeds, 

the degree of planning, the nature and scope of the illegal 

activity, and the degree of control exercised over others. 

U.S.S.G. § 3B1.1, App. Note 3; Ortiz, 878 F.2d at 127. The 

commentary to the guidelines purports only to suggest various 

factors the court should consider. Ortiz, 878 F.2d at 127. 

Evidence of every factor is not a prerequisite to a finding that 
the defendant is a leader or organizer under § 3B1.1, nor is 

evidence that the defendant is the sole or predominate leader 

required. Id. The government need only show sufficient 

authority to justify such a finding. Id.

 Bass premises his challenge primarily on the 

government's lack of evidence that he actually participated in 

the purchase, transportation, and sale of the firearms. Bass 

misunderstands the indicia of leadership under the guidelines. 

Leadership is not inconsistent with a refusal to participate in 

the actual implementation of a criminal plan. A person who 

plans, funds, and supervises a conspiracy's operation does not 

immunize himself from upward adjustment under § 3B1.1 just 

because he does not join in all of the mechanics and all of the 

various activities of the illegal enterprise. Indeed, leaders 

and organizers often distance themselves from the actual 

implementation of the conspiracy. 

 The fundamental question is whether adequate evidence 

supports the district court's determination that Bass 

participated in planning and organizing the crime. This record 

provides sufficient support for that conclusion. 

 The evidence presented at the sentencing hearing 

revealed that Bass bankrolled a large part of the gun purchasing 

operation. His contribution of approximately $4,300 to $4,600 

was sufficient to account for the purchase of more than half of 

the weapons eventually traced to the conspiracy. Bass took 

possession of some of these weapons immediately when he was in 

Virginia. In at least two other cases, he assumed control over 
weapons shipments upon their arrival in Newark. Further, Bass 

admitted to identifying buyers for the weapons in New Jersey. 

This evidence, which provides a sufficient foundation to conclude 

that Bass had substantial control over the conspiracy's New 

Jersey operations, permitted the district court to find that Bass 

was a leader or organizer within the meaning of § 3B1.1. 

III 

 Bass next argues that the Sentencing Commission 

adequately considered the foreseeable consequence that firearms 

sold in violation of the National Firearms Act would be used in 

the commission of other felonies when it drafted the 1989 version 

of guideline § 2K2.2.1 He argues that the district court 

 

1. U.S.S.G. § 2K2.1(c)(1), under which Bass was sentenced, 

required the district court to calculate a defendant's sentence 

by reference to § 2K2.2. The 1989 version of U.S.S.G. § 2K2.2 

reads as follows: 

 Unlawful Trafficking and Other Prohibited Transactions 

Involving Firearms

 (a) Base Offense Level 

 (1) 16, if the defendant is convicted under 18 U.S.C. 

§ 922(o) or 26 U.S.C. § 5861; 

 (2) 6, otherwise. 

 (b) Specific Offense Characteristics 

 (1) If the offense involved distribution of a firearm, 

or possession with intent to distribute, and the 

number of firearms unlawfully distributed, or to 

be distributed, exceeded two, increase as follows: 

 Number of Firearms Increase in Level

 . . . . . . 
therefore erred by departing upward an additional four levels in 

his case. Whether the Sentencing Commission adequately 

considered a factor in drafting a guideline is subject to plenary 

review. United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989). 

 The district court must sentence within the applicable 

guideline range and is not authorized to depart from that range 

"unless 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 should result in a sentence 

different from that described." 18 U.S.C § 3553(b). "In 

determining whether a circumstance was adequately taken into 

(..continued) 

 (F) 50 or more add 6 

 (2) If any of the firearms was stolen or had an 

altered or obliterated serial number, increase by 

2 levels. 

 (3) If more than one of the following applies, use the 

greater: 

 (A) If the defendant is convicted under 18 U.S.C. 

§ 922(d), increase by 6 levels; or 

 (B) If the defendant is convicted under 18 U.S.C. 

§ 922(b)(1) or (b)(2), increase by 1 level. 

 (c) Cross Reference 

 (1) If the defendant, at the time of the offense, had 

been convicted in any court of a crime punishable 

by imprisonment for a term exceeding one year, 

apply § 2K2.1 (Unlawful Receipt, Possession, or 

Transportation of Firearms or Ammunition) if the 

resulting offense level is greater than that 

determined above. 
consideration, the court shall consider only the sentencing 

guidelines, policy statements, and official commentary of the 

Sentencing Commission." Id. Here, the district court departed 

upward four levels because it held that the 1989 firearm 

guidelines, specifically U.S.S.G. §§ 2K2.1 and 2K2.2, "did not 

take into account the nature and the type of weapons transferred. 

One should have been possessed of knowledge or had reason to 

believe that they would be utilized to commit other types of 

felonies." App. 123. 

 The district court's conclusion conflicts with the 

analysis in two of our earlier opinions: United States v. Uca, 

867 F.2d 783, 786 (3d Cir. 1989) and United States v. Kikumura, 

918 F.2d 1084, 1104-07 (3d Cir. 1990). 

 In Uca, Uca and a co-defendant Hodzic attempted to 

purchase guns from a government sting operation in Pennsylvania 

for eventual resale and shipment to Albania for use in a private 

war. Following their convictions, the district court departed 

upward on the following grounds: 

 There's no lawful purpose for these guns. 

We're not talking about one gun or two guns, 

we're talking about 56 untraceable handguns 

which translates in my mind to at least 56 

potential acts of violence in this country or 

in another country. The use of handguns, 

unlicensed handguns, causes the perpetuation 

of criminal activity of persons so inclined 

to rob, maim, start their own private wars, 

even drug wars in cities such as 

Philadelphia. 
Id. at 786. After examining the purpose and substance of 

U.S.S.G. § 2K2.3,2 we determined that "[c]learly, the Guidelines 

contemplate unlawful intent" on the part of the defendants 

transferring the firearms. Id. at 789. Because the guideline 

took into account the likelihood that illegally obtained handguns 

would be used in future crimes, we concluded that "[t]he intended 

use of the guns is not a circumstance warranting upward 

departure." Id. at 790 (footnote omitted). 

 Kikumura involved the application of the firearms and 

explosives guidelines to a defendant, Yu Kikumura, who was caught 

with bombs which he had intended to use in a terrorist attack in 

New York City. The type of bomb seized would without question 

have resulted in death or serious injury to the public. Because 

the district court concluded that the guidelines did not account 

for Kikumura's specific intent to murder civilians, the district 

court departed upward. Kikumura claimed that Uca invalidated the 

departure. We distinguished Uca and disagreed. 

 In Kikumura, we read Uca as holding that the offense 

levels provided in the Sentencing Guidelines already accounted 

for a defendant's disregard for the likelihood that firearms 

involved in a conviction would be used in later criminal 

offenses. Kikumura, 918 F.2d at 1109. Nonetheless, we concluded 

that neither Uca nor the guidelines accounted for the kind of 

 

2. U.S.S.G. § 2K2.3, the guideline applied in Uca, was a 

predecessor to U.S.S.G. § 2K2.1 and § 2K2.2, the guidelines 

applied here. The substance of the two guidelines is nearly 

identical. The minor differences that exist have no effect on 

this case. 
specific intent to kill which Kikumura had shown. Id. To 

summarize, we decided that the guidelines' "base offense levels 

incorporate some presumption of intended unlawful use," but not a 

predetermined specific intent to kill. 918 F.2d at 1109. 

 In the present case, neither the district court nor the 

government identified any evidence which suggested that Bass knew 

of, or intended, any particular illegal uses for the weapons sold 

in the course of the conspiracy. The district court departed 

upwards because Bass should have known that the guns would be 

used in future felonies. 

 The district court based its conclusion primarily on 

the fact that an undisclosed number of semiautomatic handguns and 

"Tec-9s" -- "the favored weapons of the underworld" -- were among 

the firearms sold in the conspiracy. App. 119. While we can 

understand the district court's concern that these types of 

weapons are generally used for unlawful purposes, we do not 

believe that the mere identification of the type of weapons 

purchased and transported indicate that Bass' level of intent 

exceeded the mens rea present in Uca, which we found to have been 

adequately considered by the Sentencing Commission. 

 As additional support for its upward departure, the 

district court recognized that weapons attributable to the 

conspiracy had already been tied to other felonies in Newark. 

Newark police found at least one weapon, attributable to Bass, 

following a shootout between police and drug dealers, and another 

weapon, also attributable to Bass, was used to kill a New Jersey 

assistant district attorney. The government however was unable 
to show that Bass was in any way aware of these events or was 

associated with those who perpetrated the crimes. 

 We recognize that an analytical distinction exists 

between Bass' mens rea with respect to possible future felonies 

and the actual commission of those felonies. The propriety of an 

upward departure based on the actual commission of felonies using 

guns purchased during the conspiracy was not considered in Uca as 

no evidence of actual subsequent offenses was presented to the 

sentencing court. Nonetheless, this distinction is too tenuous 

to conclude that the sentencing guidelines permit a departure 

where a later gun-related felony is actually committed and 

preclude a departure in a Uca situation when no evidence of a 

later felony is considered by the district court. Hence, we will 

not interpret the 1989 guidelines as permitting a departure 

because felonies were ultimately committed while, at the same 

time, forbidding a departure because the defendant had reason to 

believe the guns would be used in the commission of future 

felonies. 

 Absent additional evidence of specific intent tying 

Bass more directly to the subsequent crimes, these tragic events 

only confirm the reality already taken into account by the 

Sentencing Commission's 1989 firearm guidelines -- that the 

illegal sale of guns always poses the risk that the guns will be 

used in other dangerous illegal activity. 

 The government sought to avoid our holding in Uca by 

reference to the Sentencing Commission's 1991 amendments to the 
firearms guidelines. In 1991, the Commission added U.S.S.G. 

§ 2K2.1(b)(5) which reads: 

 If the defendant used or possessed any 

firearm or ammunition 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 possessed in connection 

with another felony offense, increase by 4 

levels. 

(emphasis added). This provision might have permitted a four 

level adjustment if the court could have applied these later 

guidelines. 

 The government argues that the 1991 amendments permit 

us to affirm Bass' sentence on the basis of United States v. 

Joshua, 976 F.2d 844 (3d Cir. 1992). Joshua, under certain 

circumstances, permits courts in this Circuit to consider 

subsequent amendments to official guidelines commentary when 

interpreting prior guidelines, even if the new commentary 

conflicts with a panel's decision rendered prior to the 

amendment. Id. at 854-56. 

 The government's argument however is unavailing because 

the 1991 amendment does not conflict with our conclusion in Uca

and Kikumura that the guidelines under which those cases were 

decided presume some level of illegal use for the firearms 

transferred. 

 The 1991 amendments involved more than a reexamination 

of U.S.S.G. § 2K2.1. The amendments represented the Commission's 

efforts to consolidate U.S.S.G. §§ 2K2.1, 2K2.2, and 2K2.3 into a 

single guideline, § 2K2.1. Section 2K2.3 in the 1989 guidelines, 
which was titled "Receiving, Transporting, Shipping or 

Transferring a Firearm or Ammunition With Intent to Commit 

Another Offense or With Knowledge that It Will Be Used in 

Committing Another Offense," sought to tailor a defendant's 

sentence to any known or intended uses of firearms. This 

guideline also applied to illegal transactions in firearms when, 

under 18 U.S.C. § 924(b), the defendant had "reasonable cause to 

believe that [a felony] is to be committed therewith." See

Commentary to U.S.S.G. § 2K2.3 (1989). 

 An even earlier version of U.S.S.G. § 2K2.3 also took 

into account the defendant's knowledge or intent regarding the 

use of the weapons in future offenses. Section 2K2.3(c)(1) of 

the pre-1989 guideline read as follows: 

 If the defendant provided the firearm to 

another for the purpose of committing another 

offense, or knowing that he planned to use it 

in committing another offense, apply § 2X1.1 

(Attempt or Conspiracy) in respect to such 

other offense, if the resulting offense level 

is higher. 

As this pre-1989 guideline language makes clear, the Commission 

contemplated the imposition of higher sentences when the 

defendant transferred firearms with intent or knowledge that they 

would later be used in other offenses. Both versions of § 2K2.3 

thus reveal that the Sentencing Commission specifically 

considered the defendant's mens rea in setting the appropriate 

offense level. 

 The new § 2K2.1(b)(5) provision, rather than altering 

the substance of the 1989 version of § 2K2.1, continues a part of 
the function that § 2K2.3 served in 1989. As a result, the 

amendment does not by itself support a conclusion that the 

Commission, in drafting the 1989 guidelines, failed to consider 

the foreseeable illegal use of illegally obtained weapons. 

 Further, the instant case lacks some of the crucial 

factors, present in Joshua, factors that persuaded us to 

reevaluate our prior interpretation of the applicable guideline 

in light of the subsequent amendment. 

 Joshua involved a Sentencing Commission amendment which 

explicitly sought to clarify ambiguous, but unchanged guideline 

language by means of new commentary. 976 F.2d at 855. Here, 

neither party has pointed to anything which suggests why the 

Commission sought to add § 2K2.1(b)(5) to the substance of the 

guideline. In the absence of any language, provision or 

explanation which clarifies the Commission's intent when it added 

the "reason to believe" language in § 2K2.1(b)(5), we cannot know 

the thinking that gave rise to the amendment. It may be that the 

amendment indicates that the Commission had not previously 

considered the question of the defendant's recklessness with 

respect to future crimes or it may be that the Commission simply 

changed the degree of punishment for a previously considered 

factor just as it did when it increased the base offense levels 

applied to some firearm offenses as a part of the 1991 

amendments. Compare U.S.S.G. §§ 2K2.1(a) & 2K2.2(a) (1989) with

U.S.S.G. § 2K2.1(a) (1992). Absent a clear intent on the part of 

the Commission to clarify a prior ambiguity and absent the type 

of clear conflict between our precedents and new Commission 
action, which we discussed in Joshua, we have no occasion to 

reconsider our holding in Uca and our discussion of that holding 

in Kikumura. 

 For all of these reasons, we disagree with the 

government's argument that the Commission's 1991 amendment 

provides sufficient reason to reevaluate our controlling opinions 

in Uca and Kikumura, which we are duty bound to apply. See Third 

Circuit I.O.P. 9.1. Because the district court's departure 

conflicts with Uca, Bass is entitled to a four level reduction in 

his sentence. 

IV 

 Finally, Bass argues that the district court violated 

his constitutional right to due process by sentencing him at the 

highest end of the sentencing range based on the district court's 

finding that Bass had perjured himself in a prior exclusionary 

hearing. We exercise plenary review over Bass' constitutional 

due process challenge, United States v. Barnhart, 980 F.2d 219, 

222 (3d Cir. 1992), and conclude, as we have earlier noted, that 

Bass' argument lacks merit. 

 Recently, in United States v. Dunnigan, 113 S. Ct. 1111 

(1992), the Supreme Court held that enhancement of a guidelines 

sentence for obstruction of justice under U.S.S.G. § 3C1.1 based 

on a district court's finding that the defendant perjured himself 

did not violate the Constitution. The Court wrote: 

 In the present context, . . . the enhancement 

provision is part of a sentencing scheme 

designed to determine the appropriate type 
and extent of punishment after the issue of 

guilt has been resolved. The commission of 

perjury is of obvious relevance in this 

regard, because it reflects on a defendant's 

criminal history, on her willingness to 

accept the commands of the law and the 

authority of the court, and on her character 

in general. 

Id. at 1116. Accordingly, a finding of perjury can enhance a 

defendant's offense level in some contexts. 

 The Court in Dunnigan relied heavily on its opinion in 

United States v. Grayson, 438 U.S. 41 (1978). There, the Court 

held that increasing a pre-guidelines sentence following a 

finding of perjury did not violate the due process clause. The 

Court concluded that the risk that sentencing judges would 

improperly enhance sentences based on an unindicted offense did 

not outweigh the benefits of allowing the judge to consider all 

of the defendant's conduct when fashioning an appropriate 

sentence. Id. at 53-54. 

 While Bass' challenge is not controlled by either 

Dunnigan or Grayson, we are satisfied that the reasoning of both 

cases permits a district court to impose a higher sentence within 

the sentencing range on the basis of the defendant's perjury. If 

the district court can enhance the offense level based on a 

finding that the defendant perjured himself, a fortiori, the 

court can impose a higher sentence within the sentencing range 

based on a finding of perjury. The district court, having found 

that Bass had committed perjury, thus did not violate Bass' 

constitutional rights. 
V 

 For the foregoing reasons, we will affirm the district 

court's decision to adjust Bass' sentence upward four levels 

under U.S.S.G. § 3B1.1 and to sentence at the top of the range 

based on the court's finding that Bass perjured himself. 

However, because the 1989 guidelines, as we interpreted them in 

United States v. Uca, 867 F.2d 783 (3d Cir. 1989), do not permit 

an additional upward departure based on the foreseeable use of 

the firearms purchased by Bass in the commission of felonies, we 

will vacate the district court's sentence and remand for 

resentencing consistent with the foregoing opinion.