UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                      No. 97-4117
MICHAEL GUESS, a/k/a Michael
Hennessey,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-96-414-A)

Argued: October 30, 1997

Decided: December 12, 1997

Before MICHAEL, Circuit Judge, BUTZNER, Senior Circuit Judge,
and BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Eugene Joseph Rossi, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellant. John A.
Keats, LAW OFFICES OF JOHN A. KEATS, Fairfax, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
Glenn C. Alexander, Special Assistant United States Attorney, Alex-
andria, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Following the defendant's plea of guilty to being a felon in posses-
sion of a firearm (a .25 caliber pistol), 18 U.S.C.§ 922(g), with a
Guideline range of 30-37 months, the district court granted a down-
ward departure to a sentence of six months home confinement, fol-
lowed by three years of probation, finding that the case was "atypical"
because there was no evidence that the defendant intended to use the
firearm to commit another crime. The Government appeals. For the
reasons that follow, we vacate and remand for resentencing.

As a result of the execution of a search warrant at the residence of
the defendant, officers found three firearms, including a .25 caliber
pistol, in the basement area of the house. Although defendant admit-
ted knowledge of the three firearms, defendant contended that they
belonged to his stepbrother who stored them in the basement area of
defendant's home which was occupied by defendant's stepfather.
Despite his admitted knowledge of the three firearms, defendant
claimed to have had dominion and control over the .25 caliber hand-
gun only, which on several occasions had been brought by his live-in
girlfriend to the upstairs area of the house, allegedly for protection
while the defendant was away. After accepting the defendant's plea
to possession of the .25 caliber handgun, and determining the Sen-
tencing Guideline range to be 30 to 37 months imprisonment, the
court granted the defendant's motion for downward departure, finding
that under the facts and circumstances of the case it was "outside of
the heartland of the typical Guideline" because there was no evidence
that the defendant had any intent or plan to commit any illegal acts,
and because the defendant never intended to exercise any dominion
and control over the weapon. J.A. at 71-72.

The district court erred in concluding that defendant's lack of intent
to commit another crime was basis for downward departure. U.S.S.G.

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§ 2K2.1(b)(5) provides for upward departure when the defendant
intends to commit some other crime. The Guidelines, therefore, place
those cases involving mere possession within the heartland of 18
U.S.C. § 922(g). If an upward departure is warranted for a case where
there is intent to commit an additional crime, and a downward depar-
ture warranted for a case where there is no such intent, then there
would be no "heartland" for § 922(g) crimes. The purpose of § 922(g)
is to prevent situations in which persons, who have by their criminal
history demonstrated their inability to conform their conduct to the
law, have possession and control over dangerous weapons. See
Barrett v. United States, 423 U.S. 212, 218, 220-21 (1976) (interpret-
ing a prior version of this section). Furthermore, to the extent that the
district court relied upon its belief that there was no evidence that the
defendant ever intended to exercise dominion and control over the
weapon, such reliance was also error. Once a court accepts a defen-
dant's guilty plea, the strength of the evidence is irrelevant to sentenc-
ing. See United States v. Rybicki, 96 F.3d 754, 759 (4th Cir. 1996).

The judgment of the district court is vacated and the case is
remanded for resentencing.

VACATED AND REMANDED

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