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

has determined unanimously that oral argument wouldnot 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 sub mitted 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 o f 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, Un ited States District

Court for the Western District of Oklahoma, sitting by designation. -2- RUSSELL ** , District Judge.

TACHA , Chief Circuit Judge.

Defendant Quentin Hurlich pleaded guilty to possess ion 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 dep arted upward substantially from the sentencing guidelines, sentencing him to 1 0 years’ imprisonment to run consecutively to his state sentence. We exercise j urisdiction 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 Murr ay, Utah and attempted to cash a forged check. He had been on aconstant methamphetamine high for over two weeks and wanted money to buy mor e drugs. The bank teller refused to cash the check and called a police offic er. 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, an d 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 conduc t, Hurlich pleaded guilty in state court to attempted aggravated murder, forgery , and possession of methamphetamine. For these three charges, he recei ved 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 othe r, but consecutive to all prior

sentences. In federal court, Hurlich pleaded guilty to possess ion 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 officerprepared a presentencing report recommending a four-level upward departure f or possession of a firearm in connection with another felony offense. U.S. Sente ncing Guidelines § 2K2.1(b)(5). The report stated that “[d]uring the investigation of the shooting, acquaintances of the defendant reported having know ledge of the defendant’s possession of the gun at least three days prior to the shooting, specifically, on-4-

May 31, 1999, and to his possession of the gun duri ng the transaction of stolen checks.” In addition, the United States moved for an upward departure based on a substantial under-representation in Hurlich’s crimi nal history and a strong probability that he would continue to reoffend. U. S.S.G. § 4A1.3. At sentencing, the court granted the probation offi cer’s recommended fourlevel upward departure for possession of a firearm in connection with another felony offense. After the four-level enhancement a nd 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-rep resentation in criminal history pursuant to § 4A1.3, and imposed the statutory maxi mum sentence of 120 months, to run consecutively to his state sentences. II. Discussion Hurlich now appeals: (a) the four-level enhancementfor possession of a firearm; (b) the upward departure; (c) the consecut ive sentencing; and (d) the court’s failure to notify him at the plea colloquy of the possibility of a consecutive sentence. When reviewing an applicatio n of the Sentencing Guidelines, we review the district court’s factual findings for clear error and questions of law de novo. United States v. Farnswo rth , 92 F.3d 1001, 1009 (10th Cir. 1996).-5-

A. Enhancement for Possession of Firearm in Connecti on with Another Felony Hurlich challenges the court’s four-level enhanceme nt for possession of a firearm in connection with another felony offense o r with the “knowledge, intent, or reason to believe that it would be used or posse ssed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). He argue s that the United States failed to prove the factual basis for the enhancement by apreponderance of the evidence, as the only factual basis for the departu re was a vague hearsay statement in the presentence report that “acquainta nces” had “knowledge” that he possessed the gun during a transaction involving st olen checks. The United States concedes that the record is inadequate to support the enhancement. A party’s concession, however, cannot compel us to re verse 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 withanother felony. Farnsworth , 92 F.3d at 1009. “Conclusions in the presentence r eport unsupported by facts do not constitute a preponderance of the evidence.” U nited States v. GomezArrellano , 5 F.3d 464, 467 (10th Cir. 1993). We find that t he vague, unsworn statement by an unidentified witness in the present ence 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 st atements made by an unobserved witness and unsupported by other evidenc e 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 insuffici ent to support an enhancement under § 2K2.1(b)(5)). We therefore remand to the d istrict court for resentencing. B. Departure Based on Under-Representation of Crimin al History Hurlich also challenges the court’s upward departur e from the Guidelines range of 41-51 months to 120 months based on an und er-representation of criminal history. U.S.S.G. § 4A1.3. The district court explained the upward departure a s 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 refle cts 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 juven ile and as an adult. I believe that this clearly is outside the heartlan d of cases and will therefore grant the motion for upward departure in order to accurately reflect the seriousnes [sic] of the offe nse 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 factua l reasons for departure are permissible departure factors, (2) whether the reas ons for departure remove the1 The government concedes that the district court fa iled to articulate

adequately the reasonableness of the degree of departure. As with the preceding issue, however, we must nonetheless address the mer its of the question. -7- defendant from the heartland of cases under the app licable guideline, (3) whether the record supports the facts underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Colli ns , 122 F.3d 1297, 1303 (10th Cir. 1997). Hurlich does not challenge the permiss ibility of or factual basis for the departure factors on which the district court r elied. He argues, however, that his prior crimes and lengthy criminal history do no t remove him from the heartland of cases, because the state sentencing co urts already took these factors into account, and that the degree of departure was unreasonable. 1 We will only disturb a finding that the defendant w as outside the heartland of cases if the district court abused its discretio n. Collins , 122 F.3d at 1306. We find no abuse of discretion here. As the presenten cing report detailed, Hurlich had a long history of violations, including, among others, attempted burglary, possession of a controlled substance, car theft, as sault, and attempted possession of a firearm. The record reveals a clear pattern o f 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 departu re was an abuse of discretion. An upward departure must also be reasonable in degr ee, however.-8-

Therefore, in departing from the applicable Guideli nes range, a sentencing court must “specifically articulate reasons for the degre e of departure,” using “any reasonable methodology hitched to the sentencing Gu idelines,” 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 natu re of the defendant’s criminal history, taken together, are s ufficient to warrant an upward departure from Criminal History Category VI, the court should structure the departure by moving incrementa lly down the sentencing table to the next higher offense level i n Criminal History Category VI until it finds a guideline range approp riate to the case. U.S.S.G. § 4A1.3. If a district court fails to pro vide “an adequate explanation for the particular sentence imposed” we are obligated t o remand, except in those rare cases “in which the appellate court can unmistakabl y 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 l evel 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 de cision 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 resente ncing, 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 offens es committed “while the defendant was serving a term of imprisonment (inclu ding work release, furlough, or escape status) or after sentencing for, but befo re 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), th e 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 reasonab le 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 ha d argued that § 5G1.3(a) applied because Hurlich was a parole fugitive at the time o f 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) do es not apply, and the undischarged term of imprisonment resulted from off ense(s) that have been fully taken into account in the determination of the offe nse level for the instant offense.” The central aim of subsection 5G1.3(b) i s 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 indicate s that § 5G1.3(b) applies only when the two convictions are based on the same cond uct 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) w ould apply only if Hurlich’s state and federal convictions involved the same cou rse of conduct. Id. Hurlich’s federal conviction was based on a firearms violatio n, 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 th e 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 federa l offense as required by § 5G1.3(b). When neither (a) nor (b) applies, subsection (c) ap plies. U.S.S.G. § 5G1.3(c). Subsection (c) states: “(Policy Statement) In any other case, the1 Application note 3 states that:

To achieve a reasonable punishment and avoid unwarr anted 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/paro lable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence an d the time likely to be served before release; (c) the fact that the prior undischarged sentence m ay have been imposed in state court rather than federal court, o r at a different time before the same or different federal court; and (d) any other circumstance relevant to the determin ation of an appropriate sentence for the instant offense. -11- sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undisch arged term of imprisonment to achieve a reasonable punishment for the instant off ense.” Id. While the district court may impose either consecutive or concurrent s entences, it must consider the directives set forth in § 5G1.3(c) and the relevantapplication notes – 3 through 6. Moyer , 282 F.3d at 1317 (remanding for resentencing wher e district court incorrectly believed it was required to impose a co nsecutive sentence). Application Note 3, for example, lays out three spe cific factors courts should consider, along with “any other [relevant] circumst ance.” 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 t o impose a concurrent or consecutive sentence, the di strict court must provide2Those reasons were “to accurately reflect the seri ousnes [sic] of the

offense and the offenses[,] to assure the need for a just punishment of Mr. Hurlich, to assure a proper deterrence from additio nal 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 courtrelied on “the reasons already cited in granting the motion for upward departure” 2to conclude that a consecutive sentence was appropriate “in order to achieve a rea sonable punishment for the instant offense.” As we have noted, those stated r easons were insufficient justification for the degree of upward departure. However, the district court is not required to make specific findings for the fact ors 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 canno t say that the reasons referenced by the district court were n ot “relevant to the determination of an appropriate sentence for the in stant 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 dis trict court did not abuse its discretion when it imposed a consecutive sentence. D. Notice of the Possibility of a Consecutive Senten ce Hurlich next argues that his due process rights wer e 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 erro r. 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 notunderstand every collateral consequence of the plea, but need only u nderstand its direct consequences. Wall v. United States , 500 F.2d 38, 39 (10th Cir. 1974) (per curiam). Consequences of a guilty plea unrelated t o the length and nature of the federal sentence are not direct consequences. Unit ed 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 o r 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 se ntence is not a direct consequence about which the defendant must be advis ed. Wall , 500 F.2d at 39 (“[T]he fact that service of the federal sentences would follow the previously3 The majority of our sister circuits agree that cou rts 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 Stat es 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). ContraUnited States v. Neely , 38 F.3d 458, 461 (9th Cir. 1994) (per curiam) (“Because the imposition of a co nsecutive sentence is a direct consequence of a federal guilty plea where the fede ral court lacks discretion to order a concurrent sentence, a federal defendant mu st 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 ‘practica l consequence of the plea’ within the meaning of Rule 11.”); Williams v. Unite d States , 500 F.2d 42, 44 (10th Cir. 1974). For this reason, the district co urt’s failure to inform Hurlich about the possibility of a consecutive sentence didnot prevent him from entering his plea knowingly and voluntarily. 3 Lastly, Hurlich argues that the lack of notice viol ates 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 impose d exceeds the statutory maximum for the offense of conviction. U nited 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 fe deral and state sentences were imposed for separate crimes, and the federal s entence 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 possibil ity 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 circumst ances of this case, however, we find that the district court did not commit plai n error when it failed to inform the defendant that his federal sentence could run c onsecutive to his state sentence. III. Conclusion The district court was not required to warn Hurlichof the possibility of a consecutive sentence, and it did not abuse its disc retion when it imposed a consecutive sentence. However, the district court did not provide an adequate factual basis for the four-level enhancement, and i t did not adequately articulate its reasons for the degree of departure. We theref ore REMAND to the district court for resentencing consistent with this opinion

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