                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2002

USA v. Cicirello
Precedential or Non-Precedential: Precedential

Docket No. 01-3682




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PRECEDENTIAL

       Filed August 21, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3682

UNITED STATES OF AMERICA

v.

MICHAEL CICIRELLO,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 01-cr-00257)
District Judge: Honorable Berle M. Schiller

Argued April 22, 2002

Before: SCIRICA, RENDELL and NOONAN,*
Circuit Judges

(Filed August 21, 2002)

       Burton A. Rose, Esq. [ARGUED]
       235 South 8th Street
       Washington West Building
       Philadelphia, PA 19106
Counsel for Appellant

_________________________________________________________________

* Honorable John T. Noonan, Jr., Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.



       Joan L. Markman, Esq. [ARGUED]
       Office of United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106
       Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

On January 9, 2001, Mark Smith, James Williams, and
Christopher Williams burglarized the Southeast Archery
and Sports Center in Folcroft, Pennsylvania, breaking
display cases and stealing 22 firearms, all but one of which
were handguns. They had discussed the plan with Michael
Cicirello, but he had declined to participate. However, after
the burglary, when the burglars returned to their residence,
Cicirello agreed to dispose of the firearms and did so the
next day, then turning over the proceeds to the burglars.
Cicirello pled guilty in the United States District Court for
the Eastern District of Pennsylvania to unlawfully disposing
of stolen firearms in violation of 18 U.S.C. S 922(j). At issue
on appeal is the sentence imposed by the District Court
under the United States Sentencing Guidelines ("U.S.S.G."
or "guidelines"). The Presentence Investigation Report
("PSI") noted that, given the number of guns sold illegally
and Cicirello’s prior record, his base offense level was 13,
and his criminal history category was I, and therefore the
guideline range of 12-18 months would apply. However, the
District Court enhanced Cicirello’s offense level and
departed upward, and also increased his criminal history
category based on other contacts with the criminal justice
system, sentencing Cicirello to 60 months’ incarceration, 3
years’ supervised release, and restitution of $15,419.38.

Specifically, the Court applied the upward adjustment of
4 levels under S 2K2.1(b)(5) for the transfer of a firearm
"with knowledge, intent or reason to believe that it would be
used or possessed in connection with another felony
offense" and ruled that a 2-level upward departure was
warranted under S 2K2.1, Application Note 16(4) based on

                                2


the "substantial risk of death or bodily injury to multiple
individuals."

On appeal, Cicirello contends that there was insufficient
evidence to support the upward departure and the
enhancement, and he objects to the Court’s consideration
of his previous Accelerated Rehabilitative Disposition ("ARD")1
and an open charge of auto theft in departing with respect
to his criminal history, complaining in addition that the
extent of the criminal history departure -- two levels -- was
not reasonable under the circumstances.

The District Court had jurisdiction pursuant to 18 U.S.C.
S 3231, and we have jurisdiction pursuant to 18 U.S.C.
S 3742(a) and 28 U.S.C. S 1291.

Our standard of review in Sentencing Guidelines’ cases is
multi-faceted. We review the District Court’s legal
interpretations and applications of the guidelines de novo.
United States v. Evans, 155 F.3d 245, 252 (3d Cir. 1998).
The District Court’s factual findings are reviewed for clear
error. Id. Finally, the District Court’s decision to depart is
due substantial deference and is reviewed for an abuse of
discretion. United States v. Jacobs, 167 F.3d 792, 798 (3d
Cir. 1999).

Cicirello contends that the District Court erred by
increasing his offense level pursuant to U.S.S.G.
S 2K2.1(b)(5) and abused its discretion by departing upward
based on U.S.S.G. S 2K2.1, Application Note 16(4). He also
urges that the Court abused its discretion by departing as
to his criminal history category, from category I to category
III, pursuant to U.S.S.G. S 4A1.3. We will vacate the District
Court’s sentencing order and remand for resentencing
consistent with this opinion.

BACKGROUND

An understanding of what the record did and did not
reveal as to both the crime and Cicirello’s prior criminal
_________________________________________________________________

1. Accelerated Rehabilitative Disposition is"a rehabilitation program that
allows prosecutors to avert a trial and defendants to ultimately earn a
dismissal of criminal charges by satisfactorily completing a probationary
program." Cain v. Darby Borough, 7 F.3d 377, 382 (3d Cir. 1993).

                                3


history is essential to our disposition. The record is sparse
regarding facts as to Cicirello’s disposal of the firearms in
question. We know only that, after having declined to
participate in the plans to steal them, he volunteered to
dispose of them. According to the PSI, Cicirello’s attorney
explained: "Mr. Cicirello, knowing that the firearms had
been stolen, said that he knew where they could get rid of
them. In the morning, Mr. Cicirello disposed of the stolen
property." His counsel advised the government that he did
so fearing that the burglars might use them to harm others.
He disposed of them and, according to a statement given by
Mark Smith, one of the burglars, in connection with the
PSI, Cicirello turned over the entire $1,300 in proceeds to
him the night following the burglary. We know nothing as
to where, how, or to whom Cicirello sold the guns. He
declined to provide details to the government. The
Sentencing Memorandum submitted by defense counsel
states: "Defendant did not provide assistance to law
enforcement because he is afraid for his safety and that of
his family should he cooperate, however the defendant has
always fully accepted his role in the offense." Cicirello was
indicted May 11, 2001, and pled guilty May 25, 2001; the
Judgment and Commitment Order was entered on
September 20, 2001.2

We do know that three of the twenty-two guns were later
confiscated in connection with criminal activity-- one from
a serial armed robber two and a half weeks after the
burglary, and two others from a drug stash house six
months later. We also know that this was Cicirello’s first
adult conviction for a criminal offense. His criminal record
included a juvenile adjudication for mischief, and an adult
ARD for a car theft charge, reflected in the PSI as his
having operated a vehicle without the victim’s consent. The
PSI also revealed an arrest for an auto theft that occurred
in May 2000 that was still pending. Cicirello had not been
arrested for that offense until August 2001 and his attorney
indicated that his client had purchased the car lawfully and
was not involved in the theft.
_________________________________________________________________

2. In accordance with U.S.S.G. S 1B.11, we apply the 2000 edition of the
Sentencing Guidelines.
                                4


As indicated above, the PSI recommended a sentence in
the guideline range of 12 to 18 months. It did not
recommend an enhanced offense level under S 2K2.1(b)(5)
because "[t]he probation officer does not have specific
information connecting the defendant’s sale of firearms with
the commission of other felony offenses." It recommended
an offense level of 16, which included a 4-level increase
from the base offense level to take into account the number
of weapons involved, then reduced it 3 levels, for
acceptance of responsibility, to level 13 and calculated a
criminal history category of I, with the resulting guideline
range of 12 to 18 months. The PSI did note, under"Factors
That May Warrant Departure" that, had Cicirello’s previous
theft charge been a conviction, not an ARD, the criminal
history category would have been II; furthermore, since he
would then have committed the instant offense while on
probation, his score would have been 4 and the criminal
history category III.

The government’s Sentencing Memorandum took the
position that Cicirello had not accepted responsibility, and
urged the Court to depart upward two criminal history
categories because Cicirello’s history seriously under-
represented his background and the likelihood he would
commit further crimes. The government "reluctantly" did
not seek an enhancement under S 2K2.1(b)(5) based on
existing caselaw and the fact that it could not establish the
circumstances of Cicirello’s sale. It also footnoted the fact
that it might make an argument not actually made in the
memorandum, regarding a departure based on Application
Note 16(4) to S 2K2.1.

The District Court made its view of Cicirello’s misdeeds
clear from the outset:

       In the early morning hours of January 9, 2001,
       Cicirello’s acquaintances burglarized a sporting goods
       store, stealing twenty-two firearms, primarily handguns
       of various calibers. Although the business and its
       insurance carrier were immediate victims of the
       burglary, Cicirello’s subsequent conduct expanded the
       scope and severity of this crime in ways impossible to
       express in terms of mere monetary losses. That is, in

                                5


       wanton disregard for community safety, well-being, and
       peace of mind, Cicirello sold these guns on the streets.

The Court then proceeded to address the issues charged
by Cicirello as error before us, first determining that it was
"perfectly clear" that the enhancement underS 2K2.1(b)(5)
was applicable. United States Sentencing Guidelines
S 2K2.1(b)(5) states:
       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. If the resulting
       offense level is less than level 18, increase to level 18.

The Court was swayed by the fact that the guns were
concealable weapons, thus weapons of choice in street
crimes, as well as the fact that "he sold the guns on the
streets." The Court declined to rely on the fact that the
guns had later surfaced in connection with other crimes.
Footnoting a quotation from Bob Dylan to emphasize that
"exacting evidence is superfluous" and "any contention that
Cicirello did not know or have cause to know that the guns
he sold would be used feloniously defies common sense,"
the Court ruled the enhancement applicable. The Court
also ruled that Cicirello did not qualify for credit for
acceptance of responsibility, but that issue has not been
raised before us on appeal.

The Court then turned its focus to the issue of whether
a departure was warranted for "substantial risk" under
Application Note 16(4) to S 2K2.1: "The ruinous effects of
Cicirello’s crime reveal its heinousness: the toll of putting
stolen guns on the streets is borne heavily and borne by
many. Consequently, I upwardly depart from the sentence
yielded by the Guidelines." The Court noted the applicable
departure standard -- aggravating circumstance not
adequately taken into consideration by the guidelines --
and concluded that "a score of lethal, concealable firearms
on the streets" occasioned by Cicirello qualified as an
"extreme aggravating factor," and their continued presence
in the streets posed a continuing danger, warranting an
upward departure of two levels.

                                6


Finally, the Court addressed Cicirello’s criminal history
and concluded that criminal history category I
underrepresented his "evolving record of criminal dealings."
Noting that Cicirello’s previous behavior could not be
counted, "no matter how relevant or troubling, because of
the absence of a resulting conviction," the Court referenced
the reasoning set forth in the "Facts That May Warrant
Departure" section of the PSI and departed two categories,
from criminal history category I to criminal history category
III.

These calculations yielded an offense level of 22, criminal
history category of III, guideline range of 51 to 63 months.3

DISCUSSION

Cicirello’s appeal presents what we commonly refer to as
"a guidelines case." The propriety of the sentence imposed
on Cicirello will rise and fall based on whether the District
Court applied the guidelines correctly. We are convinced it
did not. As with all guidelines cases, we start with the
pertinent guideline provisions -- those relevant to the
calculation of the offense level and those impacting on the
appropriate criminal history category.

The guideline provision governing Cicirello’s offense is
S 2K2.1, "Unlawful Receipt, Possession or Transportation of
Firearms or Ammunition; Prohibited Transactions Involving
Firearms or Ammunition." The guideline provisions
themselves are comprehensive, covering multiple possible
scenarios and attributing base offense levels from 6 to 26,
depending on the specific type of offense, the type of
firearms, and the defendant’s past criminal history
involving weapons or drugs. The guideline also includes
"Specific Offense Characteristics" with additions and
subtractions depending on related factors, such as
quantity. Had Cicirello sold 8 guns, his base level of 12
would have been increased by 3. Because he sold between
_________________________________________________________________

3. The Court’s written opinion also stated at the end, after its
determination of the 60-month sentence: "In any event, even without any
of the enhancements or upward departures outlined above, I still would
sentence this Defendant to sixty months solely on the basis of
Application Note 16(4) of U.S.S.G. S 2K2.1."

                                7


13 and 24 guns, it was properly increased by 4. Five other
specific characteristics can result in decreases or increases.4
One such characteristic was found by the District Court to
apply here, namely, (5) for transfers "with knowledge,
intent, or reason to believe it would be used or possessed
in connection with another felony offense" for which 4 levels
were added. The guideline is then followed by 19
application notes, one of which provides:

       An upward departure may be warranted in any of the
       following circumstances: (1) the number of firearm s
       significantly exceeded 50; (2) the offense involve d
       multiple National Firearms Act weapons (e.g.,
       machineguns, destructive devices), military type
       assault rifles, non-detectable ("plastic") firearms
       (defined at 18 U.S.C. S 922(p)); (3) the off ense involved
       large quantities of armor-piercing ammunition (defined
       at 18 U.S.C. S 921(a)(17)(B)); or (4) the of fense posed a
       substantial risk of death or bodily injury to multiple
       individuals.

U.S.S.G. S 2K2.1, Application Note 16 (2000). This last
circumstance (4) was relied on by the District Court to
increase the offense level by 2 levels.

Under the applicable criminal history category guideline,
S 4A1.1, Cicirello was assigned to category I, for those with
0 or 1 point. He had no adult criminal convictions. His
juvenile conviction counted for only 1 point, and his ARD,
in which there was no finding or admission of guilt in the
proceedings, was specifically removed from consideration by
virtue of the provisions of Application Note 3 toS 4A1.1(c).5

Upward departures from designated criminal history
categories are governed by U.S.S.G. S 4A1.3 based on the
inadequacy of one’s criminal history category:
_________________________________________________________________

4. It is curious that neither the parties nor the PSI references
S 2K2.1(b)(4), which provides a 2-level increase when stolen firearms are
involved, and which would seem to apply to this situation.

5. The PSI noted one point for Cicirello’s juvenile conviction based on
S 4A1.2(d)(2)(B) because the instant offense occurred within 5 years of
his juvenile sentencing. The PSI also properly gave 0 points for the ARD,
referencing it separately under "Other Criminal Conduct."

                                8


       If reliable information indicates that the criminal
       history category 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. Such information may include, but is not
       limited to, information concerning:

       (a) prior sentence(s) not used in computing the
       criminal history category (e.g., sentences for
       foreign and tribal offenses);

       (b) prior sentence(s) of substantially more than one
       year imposed as a result of independent crimes
       committed on different occasions;

       (c) prior similar misconduct established by a civil
       adjudication or by a failure to comply with an
       administrative order;

       (d) whether the defendant was pending trial or
       sentencing on another charge at the time of the
       instant offense;

       (e) prior similar adult criminal conduct not resulting
       in a criminal conviction.

       A departure under this provision is warranted when
       the criminal history category significantly under-
       represents the seriousness of the defendant’s criminal
       history or the likelihood that the defendant will commit
       further crimes. . . . The court may, after a review of
       all the relevant information, conclude that the
       defendant’s criminal history was significantly more
       serious than that of most defendants in the same
       criminal history category, and therefore consider an
       upwards departure from the guidelines. However, a
       prior arrest record itself shall not be considered
       under S 4A1.3.
U.S.S.G. S 4A1.3 (2000) (emphasis added).

Parsing the guidelines, however, is only part of the task,
as the caselaw construing the guidelines also impacts how
the District Court should carry out its sentencing role. For

                                9


clarity, we will consider relevant case authority in the
context of the District Court’s ruling on the specific issues
presented in this appeal.

I.

Enhancement of Offense Level Under S 2K2.1(b)(5)

As we discuss below, the District Court referenced two
cases in passing, but neither supports the application of
this enhancement in a situation where, as here, both the
government and pretrial services seemed to acknowledge
that there was no evidence as to the circumstances of
Cicirello’s sale. As noted above, the PSI explicitly provided
that there was no "specific information connecting the
defendant’s sale of firearms with the commission of other
felony offenses," and, accordingly, the probation officer
concluded that the S 2K2.1(b)(5) enhancement was
inapplicable. While the sentencing court is always free to
draw inferences from facts of record, here there are no facts
from which Cicirello’s knowledge, intent or belief at the
relevant time can be gleaned, let alone knowledge or
reasonable belief that the guns would be used in
connection with another felony. Neither fear for his safety
several months later, nor the later use of three of the guns
in connection with criminal activity is probative of the
requirement that the transfer be "with knowledge, intent, or
reason to believe." All we know of the transfer was that it
took place in one day and produced $1,300. For all we
know, Cicirello sold the guns to a pawn shop, a gun dealer,
or a relative, any of whom later could have turned out to be
engaged in criminal activity, and could have perhaps
threatened Cicirello after the fact.

While the government bears the burden of proving by a
preponderance of the evidence that the facts warrant an
enhancement, see United States v. Napier, 273 F.3d 276,
279 (3d Cir. 2001), that is not to say that the government
must prove the precise means and manner of transfer. It
must, however, present some facts to show the
enhancement should be applied, facts from which an
inference of Cicirello’s knowledge or reason to believe can
be drawn.

                                10


For example, in United States v. Bass, 54 F.3d 125 (3d
Cir. 1995), we noted that had the guidelines applicable here
been in effect, Bass might have had the enhancement
applied to him based on his conviction for conspiring with
individuals involved in an interstate ring selling guns to
straw buyers. And in United States v. James, 172 F.3d 588
(8th Cir. 1999), the Court of Appeals for the Eighth Circuit
affirmed the enhancement’s application to an admitted
gang member with a history of violence, who had been
previously convicted of carrying a concealed weapon and
was convicted in a scheme to sell guns to his friends, some
of whom were also gang members. The court cited the
sentencing court’s conclusion with approval: "if he didn’t
specifically know, he certainly had good reason to believe
that these guns were going into gang activities in south
Chicago." Id. at 594. And in United States v. Messino, 55
F.3d 1241 (7th Cir. 1995), the fact that the defendant sold
the confidential informant a silencer, and had been told
that the confidential informant purchaser was well
connected with local crime figures and was willing to
commit murder, was a sufficient basis for the
enhancement.

Other courts of appeals affirming the application of this
enhancement have similarly found the facts to permit some
basis to support the required finding as to the convicted
seller’s knowledge, intent, or reason to believe. 6

In United States v. Askew, 193 F.3d 1181 (11th Cir.
1999), on the other hand, the Court of Appeals for the
Eleventh Circuit concluded that the fact that the defendant
-- who was not the actual seller -- was aware the guns
being sold were stolen and were the kinds of guns that turn
up at crime scenes, was not sufficient to justify an
enhancement under S 2K2.1(b)(5). In commenting on the
government’s burden, the court noted that, while the
preponderance of the evidence is not a high standard of
proof, "[i]t is not, however, a toothless standard, either, and
_________________________________________________________________

6. See United States v. Askew, 193 F.3d 1181, 1185 n.4 (11th Cir. 1999)
(providing a list of cases in which "the government introduced evidence
showing why that particular defendant had ‘reason to believe’ the
transferee would use the firearm in a felony").

                                11


a district court may not abdicate its responsibility to ensure
that the prosecution meets this standard before adding
months or years onto a defendant’s prison sentence."
Askew, 193 F. 3d at 1183. The court found that the record
did not eliminate the "innocent" possibilities regarding
Askew’s knowledge and concluded that because the
evidence was "in equipoise," the government had failed to
meet its burden and the enhancement was inappropriate.7
The same reasoning and result applies here. We know
nothing about Cicirello or the circumstances of the sale
that undermine the "innocent" possibilities that are at least
as likely as the guilty ones.

For this same reason, the cases cited by the District
Court are unhelpful. United States v. Cofske, 157 F.3d 1
(1st Cir. 1998), involved the surreptitious transfer of guns
in the middle of the night in exchange for illegal drugs and
money, and in United States v. Nunez, 146 F.3d 36 (1st Cir.
1998), the defendant sold explosives to a transferee who
had told the defendant he wanted the pipe bomb for use
against a rival gang, and the defendant himself had
admitted post-arrest that he made the pipe bombs because
he wanted to hurt gangs. The factual predicates obviously
present in those cases are simply not replicated in the
evidentiary record here.

Finally, the factors relied upon by the District Court --
the sale on "the streets" and the type of guns-- do not save
its ruling. The sale "on the streets" is simply unfounded, as
the record only indicates that Cicirello "disposed of " the
guns, not where, how, or to whom. With respect to the type
of guns, while 21 of the 22 guns stolen were handguns, this
fact alone certainly does not establish that Cicirello had the
required mental state.

The facts present here are not enough from which to infer
knowledge, intent, or reason to believe, and make this case
readily distinguishable from cases affirming the 4-level
increase. As the District Court’s factual determination that
defendant had reason to believe that the stolen firearms
_________________________________________________________________

7. See United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995);
United States v. Shriver, 967 F.2d 572, 575 (11th Cir. 1992); United
States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).

                                12


would be used in another felony was clearly erroneous, we
conclude that the District Court erred in imposing the
enhancement and Cicirello is entitled to be resentenced
without its application.

II.

Departure Upward for Substantial Risk of
Death or Bodily Injury

The District Court is authorized to depart from the
sentencing range where "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. S 3553(b). Therefore, the key issue is whether the
aggravating circumstances found by the District Court were
"taken into account" by the Commission. The Supreme
Court has explained that before departing, the District
Court must find "certain aspects of the case . . . unusual
enough for it to fall outside the heartland of cases." Koon v.
United States, 518 U.S. 81, 98 (1996). While we defer to the
District Court’s decision to depart, the legal conclusion
regarding "whether section 3553(b) permits a departure
because the Commission did not adequately take
designated circumstances into account" is subject to
plenary review. United States v. Uca, 867 F.2d 783, 786 (3d
Cir. 1989); see Koon, 518 U.S. at 98-99.

As noted above, Application Note 16 to S 2K2.1
specifically references the possibility of an upward
departure if the offense of gun possession or transfer had
certain characteristics, such as very large quantities of
certain types of weapons, or if "the offense posed a
substantial risk of death or bodily injury to multiple
individuals." The District Court, again relying on the "sale
on the streets" of 22 guns, concluded that this type of risk
was apparent, holding that selling "a score of lethal
concealable firearms on the streets is an extreme
aggravating factor not taken into account by the
Guidelines."

                                13


We cannot agree. Application Note 16 speaks in very
strong terms -- "a substantial risk of death or bodily injury
to multiple individuals" -- and the atypicality statutorily
required for departure heightens the standard even more.
Here, the number of weapons has been specifically
considered in the guideline, as has the fact that the
weapons governed by it are for the most part concealable
firearms. And, as noted above, the conclusory attribute of
"on the streets" is unfounded. We can only conclude that
Cicirello’s offense is within the "heartland" of S 2K2.1,
clearly anticipated by its terms. See Uca, 867 F.2d at 787-
90.

While citing the standard, the District Court failed to
analyze how the overall departure standard -- namely,
atypicality -- applied here to the specific aspect of risk of
injury relied upon. It never asked the necessary question as
to whether Cicirello’s offense posed a substantial risk of
death or bodily injury to multiple individuals in a way that
falls outside the heartland of illegal gun sales.

The reasoning of other courts that have approved
departures in reliance on Application Note 16(4) is
instructive. In fact, in the case cited by the District Court,
United States v. Alers, 852 F. Supp. 310, 315-16 (D.N.J.),
aff ’d, 40 F.3d 1241 (3d Cir. 1994) (unpublished), the
district court did make that inquiry and responded by
finding that Alers’ sale of over 400 weapons to known drug
dealers over an extended period of time posed a risk"far
more grave" than considered in the guidelines. The court
noted that the transfers to drug dealers were not merely
with knowledge of a risk of injury; rather, violence"is
virtually a necessary incident of arming drug dealers." Id. at
316.

As the district court in Alers noted -- and as is also
relevant here -- we said in United States v. Kikimura, 918
F.2d 1084 (3d Cir. 1990), that the guidelines regarding
illegal gun activity already contain some presumption of
intended unlawful use that is factored into the base offense
level. Alers, 852 F. Supp. at 315 (citing Kikimura, 918 F.2d
at 1098). Departure is only warranted when the risk is not
only substantial, but also atypical, based on the facts, as it
was in Alers. Similarly, in United States v. Huddleston, 929

                                14


F.2d 1030 (5th Cir. 1991), the departure was warranted
where the defendant and an accomplice had loaded 28
cases of explosives into a U-Haul trailer and transported
them across a populated area of Texas in an unsafe
manner. The court found that the offense level did not
adequately reflect the risk entailed in the offense. And, in
United States v. Brunet, 178 F. Supp. 2d 342 (S.D.N.Y.),
aff ’d, 275 F.3d 215 (2d Cir. 2001), the contents of the
defendant’s basement apartment in a densely populated
area (bomb ingredients, instruction books, assault
weapons, machine guns, grenades, ammunition, silencers,
spikes) were found to pose a similar atypical risk.

Moreover, the instant situation closely parallels the fact
pattern and our reasoning in concluding that a departure
was not warranted in United States v. Uca, 867 F.2d 783
(3d Cir. 1989). There, the district court found the
possession of 56 untraceable handguns translated"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 . . . ." Id. at 786. We ordered resentencing of Uca and
his co-defendant, concluding that the mandatory nature of
18 U.S.C. S 3353(b), combined with the guidelines
admonition that departure is warranted only if a factor is
present to a degree "substantially in excess of that which
ordinarily is involved in the offense of conviction," made
such departures appropriate only in rare cases. Uca, 867
F.2d at 787 (quoting U.S.S.G. S 5K2.0). We determined that
the quantity and nature of the guns were already
contemplated by the guidelines, and the public risk
involved was not present to an excessive degree over and
above the typical weapons offense. Id. at 788-90.

We question here how the nature of the threat posed by
Cicirello’s sale of 22 guns really involved a substantial risk
different from what S 2K2.1 was crafted to punish, or
somehow more excessive in degree than the typical illegal
sale of guns case. We can only conclude that it does not.
The guideline clearly takes the number of guns into
account, and, like the situation in Uca, we think the
presumed ramifications did not constitute the substantial

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or atypical risk of death or bodily injury that would warrant
a departure from the applicable guideline range.

Accordingly, on resentencing, the District Court shall not
depart upward based on Application Note 16.
III.

Departure Upward for Criminal History Category

The District Court’s departure upward to criminal history
category III from category I was based upon its considered
view that Cicirello’s brushes with the law in an 18-month
period revealed an "evolution" not sufficiently reflected in
category I -- in which those with no history at all will fall
-- and the resulting perceived tendency toward recidivism.
We do not question the Court’s concern over whether
category I is entirely appropriate, for it is debatable in light
of the apparent trend indicated by Cicirello’s recent
behavior. Nonetheless, the District Court failed to adhere to
two principles -- one contained in the guidelines
themselves that we have cited above, and the other
developed by our case precedent based on the first.

United States Sentencing Guidelines S 4A1.3 requires the
court, if concerned regarding the category’s
underrepresentation of the seriousness of the defendant’s
conduct and likelihood of future offenses, to make a specific
inquiry. As noted above, this inquiry requires an
examination of the typical history of those in that category,
and whether the defendant’s history is "significantly more
serious than that of most defendants in the same criminal
history category." U.S.S.G. S 4A1.3.

Drawing on this statutory requirement to look to the
history of other defendants in the category, we have
imposed on the district courts the related responsibility to
"ratchet" from one category to the next if the court is
considering a departure of more than one level. As
described in United States v. Hickman, 991 F.2d 1110 (3d
Cir. 1993), in determining which category best represents
the defendant’s prior criminal history, the court must
proceed sequentially through the categories and must not

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move to the next category until it has found that a prior
category still fails adequately to reflect the seriousness of
the defendant’s history. Id. at 1114.

In Hickman, we cited with approval Judge Newman’s
description of the process:

       The reason for obliging a judge to examine the next
       higher categories in sequence is that these categories
       reflect the Commission’s careful assessment of how
       much incremental punishment a defendant should
       receive in light of the various degrees of a prior record.
       In formulating the Guidelines in general and the
       criminal history categories in particular, the
       Commission sought to implement a congressional
       policy of lessening disparity by narrowing, though not
       eliminating, the discretion of sentencing judges. At the
       same time, the Commission specified for each criminal
       history category a range of available sentences, in this
       case, seventeen months, so that a sentencing judge
       could somewhat adjust the sentence to reflect the
       unique characteristics of each case. In light of the
       Commission’s careful construction of the criminal
       history categories, when a judge concludes that a
       defendant’s category is inadequate, a sentence in the
       range of the next higher category will usually be
       sufficient. At least that next higher category must be
       considered and found inadequate before considering an
       even higher category.

991 F.2d at 1114 (quoting United States v. Coe , 891 F.2d
405, 413 (2d Cir. 1989)).

We are not alone in mandating that sentencing courts
perform the "typicality" assessment underS 4A1.3 and
reflect their reasoning as they proceed from one category to
the next. See United States v. Rusher, 966 F.2d 868, 884
(4th Cir. 1992); United States v. Gayou, 901 F.2d 746, 749
(9th Cir. 1990); United States v. Coe, 891 F.2d 405, 412-13
(2d Cir. 1989); United States v. Lopez, 871 F.2d 513, 515
(5th Cir. 1989); United States v. Miller, 874 F.2d 466, 470-
71 (7th Cir. 1989).

Here, Cicirello had no adult convictions, but several
recent scrapes with the law. Category I includes those with

                                17


0 or 1 point. Cicirello’s 1 point was for a nearly 5-year-old
juvenile probationary sentence. His recent theft activity
consisted of, in one instance, an ARD which resulted in no
finding or admission of guilt, and, in the other, conduct
merely charged (the auto theft of the car for which an arrest
was made 1 and 1/2 years after the fact). Category II
involves 2 or 3 points, while category III would be
appropriate for 4, 5, or 6 points.

The District Court did not analyze the typicality of
Cicirello’s history vis-a-vis others in category I. Instead it
referenced the hypothetical scenario set forth in the PSI to
reflect the methodology the court could use to depart
upwards two categories. That reasoning was as follows: If,
in lieu of the ARD, Cicirello had been convicted of auto
theft, not only would he have had an adult conviction, but,
in addition, the instant offense would have been committed
while on probation, all of which would have resulted in 4
points. However, we cannot subscribe to a "what if "
scenario as a replacement for the required reasoned
analysis. If the ARD should appropriately be viewed as the
equivalent of an adult conviction on some basis in fact or
law, and such a history is not typical of those in category
I or II, perhaps the analysis would support a two-level
departure. But no such basis was stated.

The District Court thus erred by not engaging in the
necessary analysis, namely, by departing from category I
without noting why Cicirello’s history did not "fit" within
that category, and to category III without assessing the
adequacy of category II.

Accordingly, on remand, the District Court shall
determine Cicirello’s criminal history category by
performing the analysis called for by the statute and our
case law.

CONCLUSION

In light of the foregoing, we will VACATE the Judgment
and Conviction Order and REMAND this case to the District
Court for resentencing in accordance with this opinion.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                19
