                                             Filed:   February 3, 2003

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 01-4847
                              (CR-01-34)



United States of America,

                                                 Plaintiff - Appellee,

           versus


Deon Dixon,

                                                Defendant - Appellant.



                              O R D E R



     The court amends its opinion filed January 30, 2003, as

follows:

     On page 2 -- the reference to use of unpublished opinions as

precedent is deleted.

                                          For the Court - By Direction




                                           /s/ Patricia S. Connor
                                                    Clerk
                              PUBLISHED

             UNITED STATES COURT OF APPEALS

                  FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

      v.                                                 No. 01-4847

DEON DIXON,
     Defendant-Appellant.
4444444444444444444444444444444444444444444444448

            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                             (CR-01-34)

                    Argued: December 6, 2002

                     Decided: January 30, 2003

     Before WILKINS, MICHAEL, and KING, Circuit Judges.

____________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Michael and Judge King joined.

____________________________________________________________
                             COUNSEL

ARGUED: Jeanette Doran Brooks, Research and Writing Attorney,
Raleigh, North Carolina, for Appellant. J. Frank Bradsher, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C.
Gordon, Assistant Federal Public Defender, Raleigh, North Carolina,
for Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
____________________________________________________________

                              OPINION
WILKINS, Circuit Judge:

   Deon Dixon appeals the sentence imposed following his guilty plea
to being an illegal alien in possession of a firearm, see 18 U.S.C.A.
§ 922(g)(5)(A) (West 2000). Dixon maintains that the district court
abused its discretion in departing upward on the basis that Dixon's
Criminal History Category (CHC) did not adequately reflect the seri-
ousness of his past criminal conduct, see U.S. Sentencing Guidelines
Manual § 4A1.3, p.s. (2000). Finding no error, we affirm.

                                  I.

   On December 14, 2000, law enforcement officers executed a search
warrant at a residence in Raleigh, North Carolina. Upon arriving at
the residence, officers directed several individuals standing outside,
including Dixon, to lie down on the ground. Dixon complied with the
order only after dropping a jacket he had been holding and stepping
away from it. A subsequent search of the jacket revealed a .32 caliber
pistol and one-tenth of a gram of cocaine base.1 Further investigation
indicated that Dixon had previously been deported to Jamaica and had
not received permission to return to the United States. On February
22, 2001, law enforcement officers arrested Dixon at his home.
Searches conducted contemporaneously with the arrest yielded over
five pounds of marijuana, digital scales, and $7,450 in suspected nar-
cotics proceeds.

    Dixon was charged with being an illegal alien in possession of a
firearm, see 18 U.S.C.A. § 922(g)(5)(A), and illegal reentry into the
United States, see 8 U.S.C.A. § 1326(a) (West 1999). He pleaded
guilty to the firearm charge.
____________________________________________________________
   1
     Additional quantities of narcotics were found elsewhere in the yard
and inside the residence.

                                  2
    At sentencing, the district court determined that Dixon was subject
to an adjusted offense level of 15 and a CHC of III. Dixon's CHC was
based on a 1994 conviction for possession of marijuana, a 2000 con-
viction for maintaining a place for controlled substances, and the fact
that he was on unsupervised probation at the time of the offense of
conviction. Not included in Dixon's criminal history score were a
1984 conviction for possession of a controlled substance and four
pending charges: (1) a June 1990 arrest in Georgia for possession of
marijuana, for which Dixon failed to appear in August 1992; (2) a
July 1990 arrest in Massachusetts for possession of a firearm without
an identification card and possession of ammunition, for which he
failed to appear in October 1990; (3) a September 1991 arrest in Con-
necticut for possession of marijuana (based on an act of distribution
observed by law enforcement officers);2 and (4) a May 1994 arrest in
Georgia for possession of marijuana with the intent to distribute, for
which a bench warrant was issued in November 1994.3

   The Government sought an upward departure based upon these
four prior arrests, arguing that Dixon's present conviction and earlier
arrests were all tied to narcotics activity. The Government also noted
Dixon's repeated use of aliases and false social security numbers and
his failure, on more than one occasion, to remain outside the United
States after being deported. The district court accepted the Govern-
ment's argument and departed upward to CHC VI, yielding a guide-
line range of 41-51 months. The district court sentenced Dixon to 51
months imprisonment. In imposing this sentence, the district court
noted that the presentence report provided "an imperfect biography"
of Dixon but that

        [m]y reading of it is that you've been involved in a drug war
        against the United States. You are a one person army, so to
        speak. You used firearms, beat people with firearms and
        engaged in drug trafficking, and you've done it forever and
____________________________________________________________
   2
     While Dixon's presentence report states that this charge "remains
pending," J.A. 70, the report does not reflect the exact status of the case.
   3
     The facts relating to these four arrests are set forth in Dixon's presen-
tence report. The district court adopted the factual findings in that report,
and Dixon does not contest the accuracy of those findings. Thus, we
accept the facts contained in the report as true.

                                   3
           you'll do it forever. Not to mention that you drift in and out
           of Jamaica to the United States.

J.A. 37.

                                    II.

   A district court may depart from the applicable guideline range
when "the court finds that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into con-
sideration by the Sentencing Commission." 18 U.S.C.A. § 3553(b)
(West 2000). Upon identifying a potential departure factor, the court
must determine, with reference to the guidelines, policy statements,
and commentary, whether the factor is forbidden, encouraged, dis-
couraged, or unmentioned by the Commission as a basis for depar-
ture. See Koon v. United States, 518 U.S. 81, 92-96 (1996); United
States v. Barber, 119 F.3d 276, 280 (4th Cir. 1997) (en banc). The
district court may depart on the basis of an encouraged factor pro-
vided it is not already accounted for by the applicable guideline. See
Barber, 119 F.3d at 280. We review the decision to depart for abuse
of discretion. See Koon, 518 U.S. at 91.

   Here, the district court departed upward on the basis of U.S.S.G.
§ 4A1.3, p.s., which provides in pertinent part:

           If reliable information indicates that the criminal history cat-
           egory does not adequately reflect the seriousness of the
           defendant's past criminal conduct or the likelihood that the
           defendant will commit other crimes, the court may consider
           imposing a sentence departing from the otherwise applicable
           guideline range.

This language makes clear that the departure factor in question—the
representativeness of Dixon's CHC—is an encouraged basis for
departure. See United States v. Concha, 294 F.3d 1248, 1252 (10th
Cir. 2002). And, by definition, this factor is not otherwise accounted
for in the criminal history calculation.

   Section 4A1.3 identifies several categories of information that may
indicate that a defendant's criminal history score is under-

                                    4
representative of his prior criminal conduct, including "prior similar
adult criminal conduct not resulting in a criminal conviction."
U.S.S.G. § 4A1.3(e), p.s. Here, it is sufficiently clear from the sen-
tencing transcript that, based on the Government's recommendation,
the district court departed upward on the ground that Dixon's four
pending charges involved criminal conduct similar to the offense of
conviction.

   Dixon does not challenge the extent of the upward departure by the
district court. Rather, he claims that any upward departure based on
his three pending narcotics charges is improper. Specifically, Dixon
maintains that the criminal conduct underlying these three charges is
not similar to his federal firearm offense because the prior misconduct
involved narcotics activity, not firearms. By contrast, the primary
argument advanced by the Government is that the criminal conduct
underlying Dixon's prior narcotics arrests is, in fact, similar to the
conduct involved in the offense of conviction, because the present
conviction and the earlier arrests all involved narcotics activity. Thus,
Dixon's analysis of similarity focuses on whether the offense of con-
viction itself is similar to the prior misconduct, while the Govern-
ment's analysis focuses more broadly on whether the offense of
conviction and its relevant conduct are similar to the earlier miscon-
duct. We therefore turn to the question of whether, in determining if
prior criminal conduct is similar to the offense of conviction for pur-
poses of § 4A1.3, a district court may only consider the elements of
the offense of conviction, or instead may also consider relevant con-
duct surrounding that offense.

   The only decision we have found directly addressing the use of rel-
evant conduct in assessing similarity is United States v. Bridges, 175
F.3d 1062 (D.C. Cir. 1999). Unlike the present case involving prior
misconduct not yet resulting in a conviction, the prior criminal con-
duct in Bridges involved five convictions that were too remote in time
to be used in calculating the defendant's CHC. See U.S.S.G.
§ 4A1.2(e). However, the reasoning of Bridges is useful here, because
Bridges addressed whether the prior convictions, though too remote,
could nonetheless serve as the basis for an upward departure under
§ 4A1.3 on the ground that they were similar to the relevant conduct
accompanying the offense of conviction. See id. § 4A1.2, comment.
(n.8) ("If the court finds that a sentence imposed outside this time

                                   5
period is evidence of similar, or serious dissimilar, criminal conduct,
the court may consider this information in determining whether an
upward departure is warranted under § 4A1.3 . . . .").

    In Bridges, the District of Columbia Circuit rejected the argument
that "in determining the similarity of offenses, a sentencing court is
limited to comparing their facial elements and may not consider the
conduct underlying any of the offenses—even the offense for which
the defendant is currently being sentenced." Bridges, 175 F.3d at
1063. The court first explained that even under the defendant's pro-
posed "categorical approach," which would compare the names and
elements of the offenses, but not the underlying conduct, at least two
of the prior convictions would likely be considered similar to the
offense of conviction. Id. at 1070. However, the court emphasized
that "[w]e need not . . . rest our conclusion of similarity on the facial
elements of the offenses. . . . [I]f we look at the relevant conduct
underlying the instant offense, any doubt regarding the similarity of
the offenses is removed." Id. at 1071. The court explained that the
language of § 4A1.2, Application Note 8, supports the conclusion that
a court may consider relevant conduct associated with the offense of
conviction in determining whether a prior offense is similar:

          Nothing in the text of this commentary bars a court from
          looking behind an offense to examine a defendant's con-
          duct. Quite the contrary, the language . . . directs the court
          to determine not whether the defendant's "offenses" are sim-
          ilar but whether his "conduct" is. Moreover, the preceding
          sentence directs that in determining whether a prior offense
          is within the time period within which criminal history is
          calculated, the court is to look to whether "any relevant con-
          duct" of the instant offense took place within that period. An
          examination of the defendant's relevant conduct, therefore,
          is perfectly consistent with the commentary's text.
Id. at 1072.

   In addition, Bridges recognized that examining relevant conduct is
consistent with the purpose of the similarity inquiry: determining
whether an upward departure is warranted because"`the criminal his-
tory category does not adequately reflect the seriousness of the defen-

                                   6
dant's past criminal conduct or the likelihood that the defendant will
commit other crimes.'" Id. (quoting U.S.S.G. § 4A1.3, p.s.). As the
court explained,

          [t]he accuracy of such a prediction about future behavior
          can only be enhanced by permitting the court to compare
          past offenses to exactly what it is the defendant has just
          done, and not simply to the name or formal elements of that
          crime. A judge with such license is surely more likely to be
          able to discern a pattern in a defendant's behavior than one
          who must peer with blinders on.

Id. (citation omitted).

    We find Bridges persuasive. Though its holding is based in part on
commentary to § 4A1.2 not directly applicable here, the reasoning of
Bridges is instructive, particularly given the close relationship
between § 4A1.2 and § 4A1.3. As with § 4A1.2, Application Note 8,
nothing in the language of § 4A1.3 precludes a court from examining
the relevant conduct associated with the offense of conviction in
determining whether prior criminal conduct is "similar" to that
offense. Further, as noted in Bridges, the commentary to § 4A1.2
states that in determining whether prior convictions are sufficiently
close in time to the offense of conviction to be included in a defen-
dant's CHC, "the term `commencement of the instant offense'
includes any relevant conduct." U.S.S.G. § 4A1.2, comment. (n.8).
This language reflects the fundamental principle of the Sentencing
Guidelines that relevant conduct should be treated as an integral part
of the offense of conviction. See U.S.S.G. § 1B1.3 (defining relevant
conduct); see also U.S.S.G. § 5K2.21, p.s. (permitting an upward
departure "to reflect the actual seriousness of the offense based on
conduct . . . underlying" another offense not charged, or a charge dis-
missed, because of a plea agreement); cf. U.S.S.G. § 4A1.1, comment.
(backg'd.) (stating that "§ 4A1.3 permits information about the signif-
icance or similarity of past conduct underlying prior convictions to be
used as a basis for imposing a sentence outside the applicable guide-
line range").

   Finally, we agree with the District of Columbia Circuit that exam-
ining the relevant conduct surrounding the offense of conviction will

                                   7
often be important in accurately assessing whether a defendant has
engaged in a pattern of criminal conduct and thus is more likely to
commit future offenses. We therefore hold that in determining
whether prior criminal conduct is similar to the offense of conviction
for purposes of a possible upward departure under § 4A1.3, a district
court may consider not only the elements of the offense of conviction,
but also any relevant conduct associated with that offense.

    Here, it is clear that the criminal conduct underlying Dixon's prior
arrest on a firearm possession charge is similar to the offense of con-
viction involving illegal possession of a firearm. Further, the miscon-
duct underlying his three pending narcotics charges is similar to the
relevant conduct surrounding his federal firearm conviction, which
included possession of narcotics with the intent to distribute. Indeed,
Dixon received a four-level enhancement because he possessed the
firearm in connection with felonious possession of cocaine base. See
U.S.S.G. § 2K2.1(b)(5). Thus, the district court properly concluded
that the misconduct underlying all four pending charges is similar to
the offense of conviction.4

   Dixon also contends that the district court improperly relied on his
arrest record in determining that an upward departure was warranted.
While § 4A1.3 permits an upward departure to be based on "reliable
information," it further provides that "a prior arrest record itself shall
not be considered." U.S.S.G. § 4A1.3, p.s. Rather, a district court
____________________________________________________________
    4
      The sentencing transcript refutes Dixon's assertion that neither the
district court nor the Government offered any explanation concerning the
similarity between Dixon's pending narcotics charges and the offense of
conviction. See, e.g., J.A. 29 ("[T]here's a clear pattern what [Dixon has]
been doing. . . . There are all kinds of ties to one thing, Your Honor,
that's drugs.") (statement by prosecutor); id. at 31 ("The basis of the
[present] charge [is that] he possessed a firearm and cocaine.") (same);
id. at 36 ("Clearly all of these offenses have nothing to do with anything
other than drugs . . . .") (same); id. at 37 ("My reading of [the presen-
tence report] is that you've been involved in a drug war against the
United States. . . . You used firearms, beat people with firearms and
engaged in drug trafficking, and you've done it forever and you'll do it
forever.") (statement by district court); id. at 38 ("[A] fair reading of [the
presentence report] says that you are in the drug business; you are in the
violence business; you are in the gun business . . ..") (same).

                                    8
"must rely on the facts underlying the arrests." United States v. Fuller,
15 F.3d 646, 651 (7th Cir. 1994). Dixon complains that the underly-
ing facts were provided with respect to only one of the four pending
charges listed in the presentence report. We conclude, however, that
the facts provided in the presentence report and discussed by the Gov-
ernment at sentencing—which Dixon does not contest as inaccurate—
went sufficiently beyond the mere fact of arrest so as not to run afoul
of that guideline section. In sum, the district court did not abuse its
discretion in departing upward based on § 4A1.3.5

                                  III.

   For the reasons set forth above, we affirm Dixon's sentence.

                                              AFFIRMED
____________________________________________________________
   5
     Because we affirm the upward departure by the district court on the
ground that Dixon's prior arrests involved misconduct similar to the
offense of conviction, we do not address whether dissimilar prior crimi-
nal conduct not resulting in a conviction could be the basis for an upward
departure under § 4A1.3. Cf. U.S.S.G. § 4A1.2, comment. (n.8) (permit-
ting consideration of serious dissimilar remote convictions). We also do
not consider whether an upward departure might have been justified here
on the alternative ground that Dixon was "pending trial or sentencing on
another charge at the time of the instant offense." U.S.S.G. § 4A1.3(d),
p.s.




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