UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 99-4475

GEROME MONTREAL RANDALL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 99-4476

JERON RONDELL RANDALL,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CR-95-58-H)

Submitted: April 25, 2000

Decided: May 15, 2000

Before MURNAGHAN and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Michael G. Howell, MCNEIL & GILBERT, Raleigh, North Carolina;
Richard L. Cannon, III, Greenville, North Carolina, for Appellants.
Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, J. Frank Bradsher, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Gerome and Jeron Randall, twin brothers, were convicted in 1996
of federal drug and firearms offenses. On appeal, their convictions
under 18 U.S.C.A. § 924(c) (West Supp. 1999) (Count Six), for using
and carrying a firearm during a drug trafficking crime on October 11,
1995, were reversed, see United States v. Randall, 171 F.3d 195 (4th
Cir. 1999). The sentences under Count Six were vacated, and the
cases were remanded for resentencing.

At their joint resentencing, both Gerome and Jeron moved for a
downward departure for extraordinary post-sentencing rehabilitation
based on their conduct and accomplishments in prison. The govern-
ment moved for an upward departure in Gerome's case based on
Application Note 2 to U.S. Sentencing Guidelines Manual § 2K2.4
(1998), the guideline applicable to Count Three, Gerome's second,
and remaining, § 924(c) conviction.

Application Note 2 to 2K2.4 provides that, when a defendant is
sentenced for a § 924(c) offense as well as for the underlying offense,
any enhancement for possession of a firearm under the guideline
applicable to the underlying offense should not be applied. In
Gerome's case, this meant that he did not receive a two-level

                    2
enhancement under USSG § 2D1.1(b)(1). Application Note 2 also
encourages an upward departure when (as in Gerome's case), the
offense level for the underlying offense, without enhancement for
possession of a firearm, results in:

          a guideline range that, when combined with the mandatory
          consecutive sentence under . . . § 924(c), . .. produces a
          total maximum penalty that is less than the maximum of the
          guideline range that would have resulted had there not been
          a count of conviction under . . . § 924(c) . .. (i.e., the guide-
          line range that would have resulted if the enhancements for
          possession, use, or discharge of a firearm had been applied).

USSG § 2K2.4, comment. (n.2). A departure under this guideline may
"not exceed the maximum of the guideline range that would have
resulted had there not been a count of conviction under . . . § 924(c).
. . . Id.

Gerome's original sentence (with two § 924(c) convictions) was
535 months; however, on remand, his guideline range was 235-293
months, with a mandatory consecutive 60-month sentence for the
remaining § 924(c) conviction, which raised his total maximum sen-
tence to 353 months. Had Gerome received a two-level enhancement
for possession of a firearm during a drug offense under § 2D1.1(b)(1)
instead of a § 924(c) conviction, his offense level would have
increased from 36 to 38 and his guideline range would have been 292-
365 months.

The district court agreed that an upward departure under Applica-
tion Note 2 to § 2K2.4 was warranted in Gerome's case because his
total maximum penalty with the § 924(c) conviction (353 months)
was less than the maximum of the guideline range that would have
resulted with a firearm enhancement under § 2D1.1(b)(1)--365
months. In addition, the court found that drug dealing in the area had
resulted in violence, that Gerome had carried a gun, and that he had
once threatened the undercover officer by pointing a gun at him dur-
ing a drug transaction. The court departed upward by twelve months
--from 293 months to 305 months imprisonment, and also imposed
the mandatory 60-month consecutive sentence for Gerome's remain-
ing § 924(c) conviction. His total sentence was 365 months. The court

                     3
also determined that a § 2D1.1(b)(1) enhancement was appropriate in
Jeron's case, which increased his offense level from 38 to 40 and pro-
duced a guideline range of 360 months to life. Jeron received a sen-
tence of 366 months. The district court heard argument on the
Randalls' motions for a downward departure for extraordinary reha-
bilitation, but ultimately declined to depart downward in either case.

On appeal, both Gerome and Jeron contend that the district court
failed to understand its authority to depart downward for post-
sentencing rehabilitation. We find that the court in fact lacked author-
ity to depart on that basis when resentencing the Randalls.

A discretionary decision not to depart is not reviewable on appeal,
see United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997), but a
decision not to depart based on a belief that the court lacks authority
to depart is reviewed de novo. Id. In Brock, we held that exceptional
post-offense rehabilitation is a possible ground for departure. See
Brock, 108 F.3d at 35. However, Brock involved a claim of extraordi-
nary rehabilitation made at the initial sentencing, not in a resentencing
hearing. At a resentencing, unless the court of appeals' mandate spe-
cifically limits the district court to specific issues, resentencing is de
novo. See United States v. Broughton-Jones, 71 F.3d 1143, 1149 n.6
(4th Cir. 1995) (remand without limitation) (citing United States v.
Bell, 5 F.3d 64, 67 (4th Cir. 1993)); see also United States v. Apple,
962 F.2d 335, 337 (4th Cir. 1992) (remand instructions limited to spe-
cific potential error and defendant's claim of post-sentencing rehabili-
tation not relevant to that issue). In this circuit, even when the
mandate of the appeals court does not limit the issues that may be
reconsidered on remand, the district court may only consider relevant
evidence "`that it could have heard at the first hearing'" with respect
to any particular issue. Bell, 5 F.3d at 6 (quoting United States v. Cor-
nelius, 968 F.2d 703, 705 (8th Cir. 1992)). Thus, rehabilitation which
occurs after the initial sentencing will necessarily always be outside
the scope of the remand. See United States v. Sims, 174 F.3d 911, 913
(8th Cir. 1999) (citing Cornelius); United States v. Warner, 43 F.3d
1335, 1340 (10th Cir. 1994) (citing Bell and Cornelius).

A number of circuits have reached the opposite conclusion, holding
that post-sentencing rehabilitation may be the basis for a departure
upon resentencing, but we do not find these decisions persuasive. See

                     4
United States v. Green, 152 F.3d 1202, 1207-08 (9th Cir. 1998);
United States v. Rhodes, 145 F.3d 1375, 1377-82 (D.C. Cir. 1998);
United States v. Core, 125 F.3d 74, 76-79 (2d Cir. 1997); United
States v. Sally, 116 F.3d 76, 80 (3d Cir. 1997). Sims, Sally, and
Rhodes ostensibly rely on Brock, but fail to recognize that Brock
addressed only post-offense rehabilitation that occurred before the
first sentencing hearing.1

Because the post-sentencing conduct of Gerome and Jeron was not
relevant evidence that the district court could have heard at the first
hearing concerning any issue, see Bell, 5 F.3d at 6, we find that the
district court lacked authority to consider it as a basis for departure
at the resentencing hearing. Consequently, the district court did not
abuse its discretion when it decided not to depart.

Next, Gerome argues that the district court abused its discretion by
departing upward in his case without finding that his use or posses-
sion of a firearm was extraordinary or exceptional, and by relying in
part on a forbidden factor--his use of a firearm on September 7,
1995, which was the basis for his § 924(c) conviction on Count Three.

When the Sentencing Commission has encouraged departure based
on a certain factor and the factor is not taken into account under the
applicable guideline, the court may depart in its discretion based on
that factor. See Koon v. United States, 518 U.S. 81, 96 (1996). If the
encouraged factor is already taken into account by the applicable
guideline, the court may depart "only if it finds that the factor is pres-
ent to an exceptional degree or in some other way makes the case dif-
ferent from the ordinary case where the factor is present." Id. The
district court's decision that an encouraged factor has not been ade-
quately taken into account by the applicable guideline is reviewed de
novo. See United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996).2
_________________________________________________________________

1 Green notes that Brock determined that a departure may be based on
post-offense rehabilitation, see Green, 152 F.3d at 1207 & n.5, and does
not cite Brock in support of its holding.
2 The government argues that the plain error standard of review applies,
but Gerome's attorney opposed a departure and thus preserved the issue
for appeal.

                     5
We note first that the rationale for the encouraged departure under
Application Note 2 is to avoid sentencing a defendant to a lesser term
of imprisonment because he used a gun during a drug offense rather
than simply possessed a gun. Any departure pursuant to Application
Note 2 will involve use of a gun in some fashion. Therefore, such use
of a gun cannot be a factor that the court is forbidden to consider.

Moreover, the district court made a factual finding that a departure
was warranted in Gerome's case based on the violent nature of crack
dealing in the area, Gerome's personal use of firearms, and his
implied threat to the undercover officer by pointing his pistol at the
officer. We find that the court's explanation for the departure was suf-
ficient.

We therefore affirm the sentences. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

                    6
