                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                June 24, 2003
                         FOR THE FIFTH CIRCUIT
                          ___________________              Charles R. Fulbruge III
                                                                   Clerk
                           Case No. 02-30975
                          ___________________

     UNITED STATES OF AMERICA

                       Plaintiff-Appellee
     v.

     ANDRE R FERGUSON

                       Defendant-Appellant

          ___________________________________________________

              Appeal from the United States District Court
                  for the Middle District of Louisiana
                               (02-CR-18)
          ___________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit

Judges.

PER CURIAM*:

     At the defendant’s sentencing hearing, the district court

increased the defendant’s criminal history category one level (from

level I to level II) and increased his total offense level five

points (from a total offense level of 16 to a total offense level

of 21).    On appeal, we are asked to determine whether the district

court erred in upwardly departing from the Sentencing Guidelines

regarding both the criminal history category and the total offense




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
level and, if not, whether the degree to which the district court

departed is reasonable.

                I.    FACTS AND PROCEDURAL BACKGROUND

     The defendant Andre R. Ferguson, doing business as Andre Arms

(“Andre’s”), operated a firearms store in Baton Rouge, Louisiana.

In this capacity, Ferguson came under the scrutiny of the Bureau of

Alcohol,   Tobacco    and    Firearms       (“ATF”)   for   allegedly   selling

firearms to convicted felons between March 23, 1998 and February

14, 2000. Subsequently, on April 19, 2002, Ferguson entered a plea

of guilty to five counts of selling firearms to prohibited persons

in violation of 18 U.S.C. § 922(d)(1).1

     In accordance with U.S.S.G. § 2K2.1(a)(6), which applies to

convictions   under    §    922(d),   the     pre-sentence     report   (“PSR”)

assigned Ferguson a base offense level of 14.2              In addition to the

five firearms listed in the information, the PSR provided that

Ferguson unlawfully sold seventeen other firearms, bringing the

     1
          The district court approved the waiver of indictment
and filed a superseding bill of information charging Ferguson
with five counts of selling firearms to prohibited persons.
     2
          Section 2K2.1 of the Sentencing Guidelines, entitled,
“Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or
Ammunition,” provides, in relevant part:

(a) Base Offense Level (Apply the Greatest):
. . .
     (6) 14, if the defendant (A) was a prohibited person at the
         time the defendant committed the instant offense; or
         (B) is convicted under 18 U.S.C. § 922(d).

U.S. SENTENCING GUIDELINES MANUAL, § 2K2.1(a)(6) (2001).

                                        2
total number of firearms at issue for sentencing purposes to

twenty-two.      Under § 2K2.1(b)(1)(B), because Ferguson’s offense

involved between eight and twenty-four firearms, his offense level

was increased by four levels to 18.3      After subtracting two levels

for acceptance of responsibility, Ferguson’s base offense level was

reduced   to     16.    Because    Ferguson    had   no   prior     juvenile

adjudications, adult criminal convictions or other arrests, his

total criminal history points totaled zero.          As a result, he was

assigned a criminal history category of level I.                A criminal

history category of level I and an accompanying total offense level

of 16 results in a guideline range of twenty-one to twenty-seven

months.

      After giving Ferguson notice that it intended to upwardly

depart, the district court heard argument regarding the merits of

the   intended    departure.      Following   this   (second)     sentencing

hearing, the district court upwardly departed from a criminal

history category of level I to a criminal history category of level

II and from a total offense level of 16 to a total offense level of

      3
           Sub-section 2K1.2(b)(1)(B) provides, in relevant part:

(b)  Specific Offense Characteristics
     (1) If the offense involved three or more firearms,
          increase as follows:
. . .
          (B) 8-24             add 4
          (C) 25-99            add 6
          (D) 100-199          add 8
          (E) 200 or more      add 10 . . . .

Id. § 2K2.1(b)(1)(B).

                                     3
21, resulting in a guideline range of forty-one to fifty-one

months.      Ferguson was sentenced to forty-eight months on each

count, to be served concurrently.

         On September 13, 2001, a final judgment was entered by the

district court.          In addition to this term of imprisonment, the

district court imposed a three-year term of supervised release for

each count, to run concurrently and imposed a $500.00 special

assessment.        Ferguson timely appeals from this judgment.

                               II.   STANDARD OF REVIEW

         Our review of a sentence under the guidelines is “confined to

determining whether a sentence was imposed in violation of law or

as   a    result    of    an    incorrect    application      of   the   sentencing

guidelines.”       United States v. Shipley, 963 F.2d 56, 58 (5th Cir.

1992).      Further, we apply an abuse of discretion standard to the

district court’s decision to depart upward and will “affirm a

departure     from    the      Guidelines   ‘if   the   district     court   offers

acceptable      reasons        for   the   departure    and   the    departure   is

reasonable.’”        See United States v. Ashburn, 38 F.3d 803, 807 (5th

Cir. 1994) (en banc)(quoting United States v. Lambert, 984 F.2d

658, 663 (5th Cir. 1993) (en banc)).

               III.      ANALYSIS OF THE DEFENDANT’S SENTENCE

     To support its request for an upward departure, the government

called several witnesses.            First, Special Agent Paul Rash with the

ATF testified that during the ATF’s investigation of Ferguson


                                            4
(which spanned over ten years), Ferguson allowed a confidential

informant, whom Ferguson believed to be a convicted felon, to pay

for and take possession of firearms over six times.

     As further explained by Agent Rash, a firearms trace results

when the dealer responsible for selling a gun recovered from a

crime scene is contacted by the ATF to reveal the purchaser of the

firearm.   Agent Rash testified that Ferguson had been contacted

approximately 124 times regarding guns recovered at crime scenes.

     Agent Rash further testified regarding the results of a

search conducted (pursuant to a search warrant) of Andre’s, and

specifically detailed discrepancies in Ferguson’s records and

receipts uncovered during the search.        For example, Agent Rash

discussed Ferguson’s Acquisition and Disposition book (the “A&D

book”) and his ATF Form 4473's.       A firearms licensee is required

to log acquisitions and dispositions of firearms in his A&D book

in accordance with 18 U.S.C. § 923's licensing provisions, and

Form 4473's are required to be completed by a firearm purchaser to

allow for the purchaser’s criminal background check.         As to a

number of entries in Ferguson’s A&D book, the firearm disposition

entry was left blank.    Further, as to the majority of the Form

4473's, the Forms were completed in their entirety (including

entry of the purchaser’s name and his or her driver’s license

number), except the firearm to be purchased entry was completely

left blank.   As relayed by Agent Rash, this led the ATF to believe

that Ferguson would substitute these partially-completed Form

                                  5
4473's when an individual failed a background check.             Agent Rash

also discussed that “an extremely large percentage of the forms”

were executed by black females purchasing large quantities of

handguns.    At least ten of these women were contacted.          The women

told agents that they were required to execute paperwork several

times because Ferguson told them their original paperwork could

not be located, and, in one instance, a woman told agents that she

had never provided information to Andre’s for a gun purchase.

     Agent Rash also testified that, prior to the search of

Andre’s, Ferguson gave approximately 148 partially-completed Form

4473's to his friend Willie Shelton for safe-keeping.            Agent Rash

had contacted several of the individuals identified as purchasers

on these Form 4473's; in several instances (“at least ten or

twelve so far”), Agent Rash uncovered evidence of wrongdoing.             For

example, Denita Barlow told Agent Rash that Ferguson paid her and

a number of other girls to sign a large volume of blank ATF Form

4473's.     Additionally, in an interview with Agent Rash, Darlene

Spears stated that she had made about a dozen straw purchases

through Ferguson; “Locket” and Tehera Rashide stated that they had

also made straw purchases through Ferguson.

     Special    Agent   Jeff   Methvin   with    the   Federal   Bureau   of

Investigation (“FBI”) testified next.           He testified regarding a

connection between Kreglin Gaines, who the FBI was investigating

for narcotics trafficking activities, and Ferguson. Specifically,

the FBI intercepted several telephone conversations between Gaines

                                    6
and Ferguson wherein Ferguson compared a group of individuals

purchasing guns from him to “Al Capone” and “professionals” and

specifically discussed one of the members as the “shooter” or

“trigger man.”    In a subsequent conversation, Ferguson and Gaines

discussed Ferguson obtaining identification and/or a driver’s

license for a mutual friend, referred to as “Rodney.”        Agent

Methvin testified regarding his belief that this was Rodney Lee,

a known drug associate of Gaines who was subsequently arrested

using a false identification card.

     Finally, Gary Orchowski, Special Agent for the ATF National

Tracing Center Division testified on behalf of the government as

an expert in the area of firearms trace analysis.    Specifically,

he testified regarding a “time to crime” factor used in firearms

trace analysis.    This factor measures the time from sale of a gun

until when it is recovered by law enforcement.       As relayed by

Agent Orchowski, the national time to crime average for the year

2000 was 6.1 years and for the year 2001 was 8.1 years and the

time to crime average for Baton Rouge for the year 2000 was 4.2

years; however, the time to crime average for Andre’s for the year

2001 was 2.17 years, “indicat[ing] [] that Andre’s Arms was

definitely involved in firearms trafficking schemes with other

individuals.”4



     4
          Agent Orchowski did not have a time to crime figure for
Andre’s in 2000.

                                  7
     Agent Orchowski also testified as to the approximately 120

firearms traced from crime scenes to Andre’s.            Of these, ninety-

six percent were handguns; of these handguns, seventy-nine percent

were semiautomatic pistols.         Further, of the firearms traced to

Andre’s, thirty-one were involved in possession of a weapon cases,

twenty-one   were    involved      in   narcotics    cases,   eighteen   were

involved in weapons offense cases, ten were involved in violent

cases, eight were involved in aggravated assault cases, three were

involved in robbery cases, one was involved in a kidnapping case

and six were involved in homicide cases.

     A   district    court   may   depart   upward    from    the   Sentencing

Guidelines if the court finds that an aggravating circumstance

exists that was not adequately taken into consideration by the

Sentencing Commission.       18 U.S.C. § 3553(b).        Here, tethered to

the above cited evidence, the district court concluded that a

criminal history category of level I did not adequately reflect

the seriousness of Ferguson’s past conduct or the likelihood that

he would commit additional crimes in the future.             Additionally, it

found the unusual circumstances of this case justified an upward

departure from the total offense level of 16 to a total offense

level of 21.        In so doing, the district court gave detailed

reasons, on the record, for its decisions to depart.

     Regarding Ferguson’s criminal history category, Chapter 4 of

the guidelines, § 4A1.3 authorizes a district court to depart

upward “[i]f reliable information indicates that the criminal

                                        8
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 . . . .” U.S. SENTENCING GUIDELINES

MANUAL, § 4A1.3.        In deciding whether to depart because of the

defendant’s criminal history, subsection (e) expressly authorizes

the court to consider “prior similar adult criminal conduct not

resulting   in    a    criminal   conviction.”      Id. §   4A1.3     (policy

statement).

     United States Code Title 18, § 923(m), makes it unlawful for

any licensed dealer to fail to make an appropriate entry or to

fail to maintain any record which he is required to keep under 18

U.S.C. § 923.         Both ATF Agent Rash and Special Agent Orchowski

testified as to Ferguson’s numerous violations of these licensing

provisions.      Not only did Ferguson’s poor maintenance of the A&D

book violate licensing provisions, but also his maintenance of

partially completed Form 4473's violated licensing provisions

(including those found in his office and those Form 4473's that

were given to Willie Shelton).            The evidence that Ferguson was

allowing straw purchases of firearms to be made and, indeed, was

paying many black females to partially complete blank Form 4473's

further supports the district court’s departure based upon “prior

similar   adult    criminal    conduct    not   resulting   in   a   criminal

conviction.”      The district court did not abuse its discretion in

reasonably increasing Ferguson’s criminal history category one

level.

                                      9
     Regarding the district court’s decision to depart upward from

Ferguson’s calculated total offense points, § 5K2.0, entitled

“Grounds for Departure (Policy Statement)” in Chapter 5 of the

Guidelines, expressly limits departures of the nature involved

here to unusual cases that fall outside of the heartland of cases

in the Guideline.     The commentary to this policy statement quotes

from Koon v. United States, 518 U.S. 81 (1996), in stating that

“[w]hether a given factor is present to a degree not adequately

considered by the Commission, or whether a discouraged factor

nonetheless justifies departure because it is present in some

unusual or exceptional way, are matters determined in large part

by comparison with the facts of other Guidelines cases.”           Id. at

98. Section 5K2.14, entitled “Public Welfare (Policy Statement),”

gives an example of certain unusual circumstances that may warrant

departure:

     If national security, public health, or safety was
     significantly endangered, the court may increase the
     sentence above the guideline range to reflect the nature
     and circumstances of the offense.

U.S. SENTENCING GUIDELINES MANUAL, § 5K2.14 (policy statement).

     Pursuant to these provisions, the district court did not

abuse its discretion in finding that the exceptional circumstances

of this unusual case cause it to fall outside of the heartland of

cases   in   the   Guideline   governing   Ferguson’s   sentence   for   a

violation of 18 U.S.C. § 922(d)(1) – § 2K2.1.       The high number of

traces, the types of crimes where guns were recovered (including

                                    10
narcotics, homicide, kidnapping and robbery), and the disparate

time to crime statistic presents a situation where “public health,

or   safety    was    significantly    endangered”      to   an   extraordinary

degree.       Further,    as   evidenced     by   the   transcript    from   the

sentencing hearing, the district court first considered, but then

rejected as unjustified on the facts of this case, a gradual

increase      in     Ferguson’s     total    offense    level.       In   these

circumstances, the five point departure is reasonable. See, e.g.,

United States v. McKenzie, 991 F.2d 203, 206 (5th Cir. 1993);

United States v. Webb, 950 F.2d 226, 231-32 (5th Cir. 1991).

                               V.     CONCLUSION

      We AFFIRM Ferguson’s judgment of conviction and sentence.




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