UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5415

ALPHONSO MARTIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-94-146)

Argued: June 7, 1996

Decided: August 15, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
CURRIE, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Philip Judson Combs, Assistant United
States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: C. Cooper Fulton, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Alphonso L. Martin contends that the district court erred
in refusing to give a lesser included offense instruction and in depart-
ing upward at his sentencing.

I. FACTS

On October 4, 1994, Appellant confronted a mail carrier during the
course of his rounds. During the confrontation, Appellant produced a
pistol and fired a shot that struck the ground one foot from the carrier.
As a result, mail service was suspended to Appellants entire block for
a four-day period. Appellant was indicted for forcibly assaulting a
federal employee during the performance of his official duties in vio-
lation of 18 U.S.C. § 111(a).

Appellant requested that the jury receive a lesser included offense
instruction for 18 U.S.C. § 1701, obstruction of the mails. The district
court refused and the jury found Appellant guilty. The pre-sentence
report established Appellant's criminal history level at Category III
and calculated his total offense level at 9. Those levels translated to
a sentencing range of 8-14 months.

At the sentencing hearing, however, the district court departed
upward under U.S.S.G. § 4A1.3 from criminal history Category III to
Category V. It also departed upward under U.S.S.G.§ 5K2.7, increas-
ing Appellants total offense level from 9 to 13. After adjustment, the
applicable guideline range was 30-37 months. Appellant was sen-
tenced to 36 months.

                     2
II. ISSUES ON APPEAL

A. Lesser Included Offense

Appellant argues that 18 U.S.C. § 1701 is necessarily a lesser
included offense of 18 U.S.C. § 111 under the analysis provided in
Schmuck v. United States, 489 U.S. 705 (1989).

In Schmuck, the Court considered whether to apply an elements test
or an inherent relationship test to determine what constitutes a lesser
included offense. Under the inherent relationship test "one offense is
included in another when the facts as alleged in the indictment and
proved at trial support the inference that the defendant committed the
less serious offense, and an `inherent relationship' exists between the
two offenses." Schmuck, 489 U.S. at 708-09. Under the elements test
"one offense is necessarily included within another only when the ele-
ments of the lesser offense form a subset of the elements of the
offense charged." Id. at 709. The Court explicitly adopted the ele-
ments approach, id. at 716, and noted that "`[t]o be necessarily
included in the greater offense the lesser must be such that it is impos-
sible to commit the greater without first having committed the
lesser.'" Id. at 719 (quoting Giles v. United States, 144 F.2d 860 (9th
Cir. 1944)).

Appellant argues that he was entitled to the lesser included instruc-
tion because the jury could have found him guilty of either offense
from the evidence presented. In other words, Appellant argues for an
application of the inherent relationship test. Schmuck, however,
requires us to apply the elements test. Under that test, the elements
of § 111 simply do not form a subset of the elements of § 1701. In
other words, Appellant can be guilty of assaulting a federal officer
without necessarily obstructing delivery of the mail.

B. Upward Departures

The district court's decision to depart from the recommended
guideline is reviewed for abuse of discretion. Koon v. United States,
64 U.S.L.W. 4512 (June 13, 1996). Appellant argues that the record
does not factually support the district court's decision to depart under

                     3
either § 4A1.3 or § 5K2.7. Thus, he contends that the district court
abused its discretion in making both departures. We disagree.

1. Criminal History Category.

Section 4A1.3 allows a court to depart upward if"reliable informa-
tion indicates that the criminal history category does not adequately
reflect the seriousness of the defendants past criminal conduct or the
likelihood that the defendant will commit other crimes." U.S.S.G.
§ 4A1.3 (West 1994).

The district court gave five justifications in support of its decision
to depart. The record substantially supports each justification:

          (1) Violent history: Appellant had prior convictions for
          two counts of battery, destruction of property, assaulting an
          officer, pointing a firearm and resisting arrest.

          (2) Pending charges: Section 4A1.3(d) authorizes the
          district court to consider upward departure if Appellant was
          awaiting trial or sentencing on another charge at the time the
          instant offense occurred. Criminal charges were pending
          against Appellant in Virginia as of September 7, 1994.
          Appellant assaulted the mail carrier on October 4, 1994.

          (3) Lenient treatment: Despite nine convictions, nine
          arrests and twenty magistrate charges the longest incarcera-
          tion Appellant ever received was 60 days.

          (4) Recidivism: Section 4A1.3 notes that a court may
          depart upward based on a high likelihood of recidivism. The
          high number of arrests, convictions and charges supports the
          district courts determination that Appellant is a high risk for
          recidivism.

          (5) The July 1993 firearms incident: Appellant, who
          employed a sawed off shotgun during this incident, was ulti-
          mately prosecuted in state court for pointing a firearm. He
          was fined and sentenced to three days in jail. If Appellant

                     4
          had been prosecuted in federal court he would have received
          a sentence of at least 27 months. That sentence, in turn,
          would have increased Appellant's criminal history category
          in this case.

Appellant also argues that even if the above facts justify the deci-
sion to depart, the district court erred by jumping from Category III
to Category V without explaining why a departure to Category IV
was not sufficient. See United States v. Rusher , 966 F.2d 868 (4th
Cir.), cert. denied, 506 U.S. 926 (1992). In fact, the district court
clearly stated why a one-level departure was insufficient.1 Rusher
does not require a more exhaustive explanation in the context of this
case.

2. Interruption of Government Function.

Section 5K2.7 provides that "[i]f the defendants conduct resulted
in a significant disruption of a governmental function, the court may
increase the sentence above the authorized guideline range to reflect
the nature and extent of the disruption and the importance of the gov-
ernmental function affected." U.S.S.G. § 5K2.7 (West 1994). The
Post Office stopped delivery to an entire neighborhood for four days
as a result of Appellant's assault. That fact alone clearly demonstrates
that the district court did not abuse its discretion in determining that
Appellant significantly disrupted a government function.2
_________________________________________________________________
1 "Well, I find that a Category IV -- a departure to category IV would
not expose this defendant to a sentence sufficient to satisfy the statutory
objectives of sentencing under all the facts and circumstances of this
case, and I've, therefore, decided to depart upward to Level V. I gave
serious consideration to departing all the way up to Level VI, but I
didn't, and I think that probably this record in this case would support
a departure to Level VI." Joint Appendix at 533.
2 At oral argument, Appellant contended that the lower court errone-
ously applied § 5K2.7 by concluding that the adjective "significant"
modified government function instead of disruption. The argument is
irrelevant because we find that Appellant's conduct caused a significant
disruption of a significant government function.



                    5
III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

                    6
