*After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 21 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

QUENTIN HURLICH,

Defendant - Appellant.

No. 01-4068

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D. Ct. No. 00-CR-235-ST)

Submitted on the briefs:*

Julie George, Salt Lake City, Utah, for Appellant.

Paul M. Warner, United States Attorney, and Wayne T. Dance, Assistant United

States Attorney, Chief, Appellate Section, Office of the United States Attorney,

Salt Lake City, Utah, for Appellee.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and
** The Honorable David L. Russell, District Judge, United States District

Court for the Western District of Oklahoma, sitting by designation.

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RUSSELL**, District Judge.

TACHA, Chief Circuit Judge.

Defendant Quentin Hurlich pleaded guilty to possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). The district court granted a

four-level enhancement in the offense level and departed upward substantially

from the sentencing guidelines, sentencing him to 10 years’ imprisonment to run

consecutively to his state sentence. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a)(3) and REMAND for resentencing.

I. Background

On June 3, 1999, Hurlich entered Zions Bank in Murray, Utah and

attempted to cash a forged check. He had been on a constant methamphetamine

high for over two weeks and wanted money to buy more drugs. The bank teller

refused to cash the check and called a police officer. The officer arrived shortly

thereafter and approached Hurlich as he was leaving the bank. The defendant

pulled a nine millimeter semi-automatic pistol from his waistband, and shot the

officer three times. The officer returned fire, and Hurlich fled the scene. Hurlich

was later apprehended, and his gun was recovered.
-3-

Hurlich had been on parole for a prior charge of attempted possession of a

firearm. The state revoked his parole, and he will be eligible for parole on that

charge on January 12, 2027. For the current conduct, Hurlich pleaded guilty in

state court to attempted aggravated murder, forgery, and possession of

methamphetamine. For these three charges, he received prison sentences of five

years to life, zero to five years, and zero to five years respectively. These three

sentences were imposed as concurrent with each other, but consecutive to all prior

sentences.

In federal court, Hurlich pleaded guilty to possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1), which is punishable by a

maximum of 10 years’ imprisonment under 18 U.S.C. § 924(a)(2). In return, the

government agreed not to use the shooting as relevant conduct for sentencing. At

the time of his guilty plea, the district court did not inform Hurlich of the

possibility of a consecutive sentence.

After Hurlich entered his plea, a probation officer prepared a presentencing

report recommending a four-level upward departure for possession of a firearm in

connection with another felony offense. U.S. Sentencing Guidelines §

2K2.1(b)(5). The report stated that “[d]uring the investigation of the shooting,

acquaintances of the defendant reported having knowledge of the defendant’s

possession of the gun at least three days prior to the shooting, specifically, on
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May 31, 1999, and to his possession of the gun during the transaction of stolen

checks.” In addition, the United States moved for an upward departure based on a

substantial under-representation in Hurlich’s criminal history and a strong

probability that he would continue to reoffend. U.S.S.G. § 4A1.3.

At sentencing, the court granted the probation officer’s recommended fourlevel upward departure for possession of a firearm in connection with another

felony offense. After the four-level enhancement and a three-level reduction for

acceptance of responsibility, the offense level was 15 and the criminal history

category VI, leading to a Guidelines range of 41-51 months. The court departed

upward from this range on the basis of an under-representation in criminal history

pursuant to § 4A1.3, and imposed the statutory maximum sentence of 120 months,

to run consecutively to his state sentences.

II. Discussion

Hurlich now appeals: (a) the four-level enhancement for possession of a

firearm; (b) the upward departure; (c) the consecutive sentencing; and (d) the

court’s failure to notify him at the plea colloquy of the possibility of a

consecutive sentence. When reviewing an application of the Sentencing

Guidelines, we review the district court’s factual findings for clear error and

questions of law de novo. United States v. Farnsworth, 92 F.3d 1001, 1009 (10th

Cir. 1996).
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A. Enhancement for Possession of Firearm in Connection with Another Felony

Hurlich challenges the court’s four-level enhancement for possession of a

firearm in connection with another felony offense or with the “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). He argues that the United States failed

to prove the factual basis for the enhancement by a preponderance of the

evidence, as the only factual basis for the departure was a vague hearsay

statement in the presentence report that “acquaintances” had “knowledge” that he

possessed the gun during a transaction involving stolen checks. The United

States concedes that the record is inadequate to support the enhancement. A

party’s concession, however, cannot compel us to reverse a district court’s

decision. United States v. Furman, 112 F.3d 435, 438 n.2 (10th Cir. 1997). We

therefore turn to the merits of the claim.

To support the enhancement, a preponderance of the evidence must show

that Hurlich possessed a firearm in connection with another felony. Farnsworth,

92 F.3d at 1009. “Conclusions in the presentence report unsupported by facts do

not constitute a preponderance of the evidence.” United States v. GomezArrellano, 5 F.3d 464, 467 (10th Cir. 1993). We find that the vague, unsworn

statement by an unidentified witness in the presentence report was insufficient to

constitute a preponderance of the evidence. Cf. United States v. Fennel, 65 F.3d
-6-

812, 814 (10th Cir. 1995) (“Unsworn out-of-court statements made by an

unobserved witness and unsupported by other evidence form an insufficient

predicate for a sentence enhancement under § 2K2.1(b)(5).”); United States v.

Pantelakis, 58 F.3d 567, 568 (10th Cir. 1995) (holding that “one ambiguous

statement in the pre-sentence report” was insufficient to support an enhancement

under § 2K2.1(b)(5)). We therefore remand to the district court for resentencing. 

B. Departure Based on Under-Representation of Criminal History

Hurlich also challenges the court’s upward departure from the Guidelines

range of 41-51 months to 120 months based on an under-representation of

criminal history. U.S.S.G. § 4A1.3. 

The district court explained the upward departure as follows: 

The Court has seriously considered this matter, has reflected upon

the presentence report. The criminal history of Mr. Hurlich is

extensive. And I do not believe that the criminal history category

currently available to Mr. Hurlich adequately reflects the seriousness

of the crimes, not only that for which he is currently serving time in

state custody, but also the long history as a juvenile and as an adult. 

I believe that this clearly is outside the heartland of cases and will

therefore grant the motion for upward departure in order to

accurately reflect the seriousnes [sic] of the offense and the

offenses[,] to assure the need for a just punishment of Mr. Hurlich, to

assure a proper deterrence from additional criminal activity, and for

the protection of the public in the future.

To determine whether the district court abused its discretion in departing from the

Guidelines, we must consider (1) whether the factual reasons for departure are

permissible departure factors, (2) whether the reasons for departure remove the
1

 The government concedes that the district court failed to articulate

adequately the reasonableness of the degree of departure. As with the preceding

issue, however, we must nonetheless address the merits of the question.

-7-

defendant from the heartland of cases under the applicable guideline, (3) whether

the record supports the facts underlying the departure, and (4) whether the degree

of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th

Cir. 1997). Hurlich does not challenge the permissibility of or factual basis for

the departure factors on which the district court relied. He argues, however, that

his prior crimes and lengthy criminal history do not remove him from the

heartland of cases, because the state sentencing courts already took these factors

into account, and that the degree of departure was unreasonable.1

We will only disturb a finding that the defendant was outside the heartland

of cases if the district court abused its discretion. Collins, 122 F.3d at 1306. We

find no abuse of discretion here. As the presentencing report detailed, Hurlich

had a long history of violations, including, among others, attempted burglary,

possession of a controlled substance, car theft, assault, and attempted possession

of a firearm. The record reveals a clear pattern of recidivism and a wide range of

violations. Given this evidence and our deference to the district court on this

question, we cannot conclude that an upward departure was an abuse of

discretion.

An upward departure must also be reasonable in degree, however. 
-8-

Therefore, in departing from the applicable Guidelines range, a sentencing court

must “specifically articulate reasons for the degree of departure,” using “any

reasonable methodology hitched to the sentencing Guidelines,” including

“extrapolation from an analogy to the Guidelines.” Collins, 122 F.3d at 1309

(citations and internal quotation marks omitted). Moreover, the Guidelines

instruct:

Where the court determines that the extent and nature of the

defendant’s criminal history, taken together, are sufficient to warrant

an upward departure from Criminal History Category VI, the court

should structure the departure by moving incrementally down the

sentencing table to the next higher offense level in Criminal History

Category VI until it finds a guideline range appropriate to the case.

U.S.S.G. § 4A1.3. If a district court fails to provide “an adequate explanation for

the particular sentence imposed” we are obligated to remand, except in those rare

cases “in which the appellate court can unmistakably determine the

reasonableness of the district court’s selection of a particular sentence.” United

States v. Flinn, 987 F.2d 1497, 1503 (10th Cir. 1993). 

In this case, the district court failed to articulate its reasons for the

particular degree of departure – an increase from level 15 (41-51 months) to at

least level 24 (100-125 months). As a result, “[w]e are unable to give the

deference ordinarily accorded a district court’s decision for the degree of

departure.” United States v. Yates, 22 F.3d 981, 991 (10th Cir. 1994). We

therefore remand to the district court. In resentencing, we instruct the district
-9-

court to specify the basis for particular sentence imposed.

C. Consecutive Sentence

Hurlich argues that the district court incorrectly applied Sentencing

Guideline § 5G1.3(a), which requires a consecutive sentence, rather than §

5G1.3(b), which requires a concurrent sentence, or § 5G1.3(c), which gives the

court discretion. Subsection (a) applies to offenses committed “while the

defendant was serving a term of imprisonment (including work release, furlough,

or escape status) or after sentencing for, but before commencing service of, such

term of imprisonment.” U.S.S.G. § 5G1.3(a).

At sentencing, the court relied on § 5G1.3(a), and in the alternative on §

5G1.3(c), stating: “I am persuaded by argument of [the United States] that I do

not have the discretion and that under 5G1.3(a), the Court must impose a sentence

to run consecutively with the state custody. Even in the absence of that being the

case, I believe that under 5G1.3(c) that I have the discretion to require a

consecutive sentence in order to achieve a reasonable punishment for the instant

offense. And the Court would find for the reasons already cited in granting the

motion for upward departure, that a consecutive sentence would be justified for

the reasons that are stated.” The United States had argued that § 5G1.3(a) applied

because Hurlich was a parole fugitive at the time of the offense. The United

States now concedes, however, that because Hurlich was not serving a “term of
-10-

imprisonment” at the time of the instant offense, § 5G1.3(a) does not apply.

Subsection 5G1.3(b) applies when “subsection (a) does not apply, and the

undischarged term of imprisonment resulted from offense(s) that have been fully

taken into account in the determination of the offense level for the instant

offense.” The central aim of subsection 5G1.3(b) is to “ensure no defendant is

punished twice for the same crime.” United States v. Contreras, 210 F.3d 1151,

1153 (10th Cir. 2000). Application note 2 indicates that § 5G1.3(b) applies only

when the two convictions are based on the same conduct or course of conduct.

United States v. Moyer, 282 F.3d 1311, 1317 (10th Cir. 2002) (citing U.S.S.G. §

5G1.3, comment. n. 2). Thus, subsection 5G1.3(b) would apply only if Hurlich’s

state and federal convictions involved the same course of conduct. Id. Hurlich’s

federal conviction was based on a firearms violation, whereas his state

convictions arose from attempted murder, forgery, and drug possession, and his

prior state sentence was affected by his violation of the terms of his probation.

Thus, Hurlich’s federal offense was not based on the same course of conduct as

his state offenses, and the state offenses were not “fully taken into account” in

determining the offense level of the current federal offense as required by §

5G1.3(b).

When neither (a) nor (b) applies, subsection (c) applies. U.S.S.G. §

5G1.3(c). Subsection (c) states: “(Policy Statement) In any other case, the
1

 Application note 3 states that: 

To achieve a reasonable punishment and avoid unwarranted disparity,

the court should consider the factors set forth in 18 U.S.C. § 3584

(referencing 18 U.S.C. § 3553(a)) and be cognizant of:

(a) the type (e.g., determinate, indeterminate/parolable) and length of

the prior undischarged sentence;

(b) the time served on the undischarged sentence and the time likely

to be served before release;

(c) the fact that the prior undischarged sentence may have been

imposed in state court rather than federal court, or at a different time

before the same or different federal court; and

(d) any other circumstance relevant to the determination of an

appropriate sentence for the instant offense.

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sentence for the instant offense may be imposed to run concurrently, partially

concurrently, or consecutively to the prior undischarged term of imprisonment to

achieve a reasonable punishment for the instant offense.” Id. While the district

court may impose either consecutive or concurrent sentences, it must consider the

directives set forth in § 5G1.3(c) and the relevant application notes – 3 through 6. 

Moyer, 282 F.3d at 1317 (remanding for resentencing where district court

incorrectly believed it was required to impose a consecutive sentence). 

Application Note 3, for example, lays out three specific factors courts should

consider, along with “any other [relevant] circumstance.”1

 U.S.S.G. § 5G1.3,

comment. n.3.

A district court generally has broad discretion to impose a consecutive or

concurrent sentence. Contreras, 210 F.3d at 1152. In exercising its discretion to

impose a concurrent or consecutive sentence, the district court must provide
2

 Those reasons were “to accurately reflect the seriousnes [sic] of the

offense and the offenses[,] to assure the need for a just punishment of Mr.

Hurlich, to assure a proper deterrence from additional criminal activity, and for

the protection of the public in the future.”

-12-

reasons for its decision. United States v. Rose, 185 F.3d 1108, 1112 (10th Cir.

1999). At Hurlich’s sentencing, the district court relied on “the reasons already

cited in granting the motion for upward departure”2 to conclude that a consecutive

sentence was appropriate “in order to achieve a reasonable punishment for the

instant offense.” As we have noted, those stated reasons were insufficient

justification for the degree of upward departure. However, the district court is

not required to make specific findings for the factors listed in the application

notes. United States v. Saintville, 218 F.3d 246, 249 (3d Cir. 2000); United

States v. Velasquez, 136 F.3d 921, 924 (2d Cir. 1998). Here, we cannot say that

the reasons referenced by the district court were not “relevant to the

determination of an appropriate sentence for the instant offense.” U.S.S.G. §

5G1.3, comment. n.3(d). United States v. McCarty, 82 F.3d 943, 951 (10th Cir.

1996) (observing that these are among “the statutory factors embodied in 18

U.S.C. § 3553(a)”). We therefore hold that the district court did not abuse its

discretion when it imposed a consecutive sentence.

D. Notice of the Possibility of a Consecutive Sentence

Hurlich next argues that his due process rights were violated by the district
-13-

court’s failure to inform him of the possibility of a consecutive sentence before he

entered his guilty plea. Because he did not raise this argument below, we review

this legal challenge to his sentence for plain error. United States v. Tisdale, 248

F.3d 964, 975 (10th Cir. 2001).

A defendant’s guilty plea must be knowing, voluntary, and intelligent. 

United States v. Libretti, 38 F.3d 523, 529 (10th Cir. 1994); Fed. R. Crim. P. 11. 

To enter a plea that is knowing and voluntary, the defendant must have “a full

understanding of what the plea connotes and of its consequence.” Boykin v.

Alabama, 395 U.S. 238, 244 (1969). The defendant need not understand every

collateral consequence of the plea, but need only understand its direct

consequences. Wall v. United States, 500 F.2d 38, 39 (10th Cir. 1974) (per

curiam). Consequences of a guilty plea unrelated to the length and nature of the

federal sentence are not direct consequences. United States v. Jackson, 627 F.2d

883, 884 (8th Cir. 1980) (per curiam) (citing Wall, 500 F.2d at 39).

A consecutive sentence does not affect the length or nature of the federal

sentence, even though it increases the total length of the defendant’s

incarceration. United States v. Hernandez, 234 F.3d 252, 256-57 (5th Cir. 2000)

(per curiam). Thus, the consecutive nature of a sentence is not a direct

consequence about which the defendant must be advised. Wall, 500 F.2d at 39

(“[T]he fact that service of the federal sentences would follow the previously
3

 The majority of our sister circuits agree that courts need not warn

defendants prior to the entry of a plea bargain that their federal sentences may run

consecutive to their state sentences. Hernandez, 234 F.3d at 256-57 (Fifth

Circuit); United States v. Parkins, 25 F.3d 114, 118-19 (2d Cir. 1994); United

States v. Ferguson, 918 F.2d 627, 630-31 (6th Cir. 1990); United States v. Ray,

828 F.2d 399, 417-19 (7th Cir. 1987); United States v. Degand, 614 F.2d 176,

177-78 (8th Cir. 1980); Cobb v. United States, 583 F.2d 695, 696-97 (4th Cir.

1978) (per curiam); Kincade v. United States, 559 F.2d 906, 908-09 (3d Cir.

1977) (per curiam). Contra United States v. Neely, 38 F.3d 458, 461 (9th Cir.

1994) (per curiam) (“Because the imposition of a consecutive sentence is a direct

consequence of a federal guilty plea where the federal court lacks discretion to

order a concurrent sentence, a federal defendant must be advised of the court’s

lack of discretion before he can enter a voluntary plea of guilty.”). 

-14-

imposed state sentence was not a definite ‘practical consequence of the plea’

within the meaning of Rule 11.”); Williams v. United States, 500 F.2d 42, 44

(10th Cir. 1974). For this reason, the district court’s failure to inform Hurlich

about the possibility of a consecutive sentence did not prevent him from entering

his plea knowingly and voluntarily.3

Lastly, Hurlich argues that the lack of notice violates his due process rights

based on Apprendi v. New Jersey, 530 U.S. 466 (2000). The constitutional

Apprendi rule, however, applies only if the sentence imposed exceeds the

statutory maximum for the offense of conviction. United States v. Combs, 267

F.3d 1167, 1181 (10th Cir. 2001); United States v. Eaton, 260 F.3d 1232, 1239

(10th Cir. 2001). Hurlich was sentenced to ten years, the maximum sentence

allowed under 18 U.S.C. § 924(a)(2). He nevertheless contends that “to sentence

him to ten years consecutive to his state sentence is to sentence him to beyond the
-15-

maximum ten years contemplated by the law.” The federal and state sentences

were imposed for separate crimes, and the federal sentence did not exceed the ten

years allowed by the federal statute. Hurlich was sentenced within the statutory

maximum, and the Apprendi rule does not apply.

It is desirable to fully inform a defendant of all the consequences of his

plea, and we strongly urge district courts to inform defendants of all the

consequences of their pleas, including the possibility of a consecutive sentence. 

Degand, 614 F.2d at 177 (finding it “desirable . . . [to] inform a defendant of all

the consequences of his plea”). Under the circumstances of this case, however,

we find that the district court did not commit plain error when it failed to inform

the defendant that his federal sentence could run consecutive to his state sentence. 

III. Conclusion

The district court was not required to warn Hurlich of the possibility of a

consecutive sentence, and it did not abuse its discretion when it imposed a

consecutive sentence. However, the district court did not provide an adequate

factual basis for the four-level enhancement, and it did not adequately articulate

its reasons for the degree of departure. We therefore REMAND to the district

court for resentencing consistent with this opinion.