                                                                                         [PUBLISH]


                        IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE ELEVENTH CIRCUIT
                                                                                FILED
                                  ________________________              U.S. COURT OF APPEALS
                                                                          ELEVENTH CIRCUIT
                                           No. 96-9412                         04/09/99
                                    ________________________               THOMAS K. KAHN
                                                                                CLERK
                               D. C. Docket No. 1:95-CR-511-1-MHS

UNITED STATES OF AMERICA,

                                                                                 Plaintiff-Appellee,
                                                                                   Cross-Appellant,

                                                versus

LARRY DARNELL RUCKER,

                                                                               Defendant-Appellant,
                                                                                    Cross-Appellee.

                                    ________________________

                           Appeals from the United States District Court
                               for the Northern District of Georgia
                                 _________________________
                                         (April 9, 1999)


Before EDMONDSON and BLACK, Circuit Judges, and RESTANI*, Judge.

BLACK, Circuit Judge:




      *
          Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation.
       Appellant Larry Darnell Rucker was convicted after a jury trial of possession

of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(e), and

unlawful possession of a prohibited weapon, in violation of 26 U.S.C. § 5861(d). At

sentencing, the district court determined Appellant to be an armed career criminal

within the meaning of U.S.S.G. § 4B1.4, but departed downward from the Guidelines

range based on its view that Appellant’s prior drug convictions were “very minor.”

Appellant challenges his convictions and the Government cross-appeals the district

court’s decision to depart from the Sentencing Guidelines. We affirm Appellant

Rucker’s convictions, but vacate his sentence and remand for re-sentencing. The only

issue meriting discussion is the Government’s cross-appeal.1

                                       I. BACKGROUND

       At the time Appellant committed the offenses in this case, he already had three

prior state convictions for possession with intent to distribute cocaine.2 At sentencing,

the district court concluded Appellant was an armed career criminal under U.S.S.G.

§ 4B1.4 because he had been convicted under 18 U.S.C. § 922(g) and had three prior


       1
         Appellant argues: (1) the district court erred by denying his motion to suppress evidence;
(2) the district court erred by refusing to admit a witness’s polygraph results at trial; and (3) there
was insufficient proof of a nexus to interstate commerce to support his conviction under 18 U.S.C.
§ 922(g). We affirm as to these issues. See 11th Cir. R. 36-1.
       2
         Moreover, while Appellant Rucker was out on bond in this case, he committed another drug
offense, which resulted in a guilty plea to possession with intent to distribute cocaine.


                                                  2
convictions constituting serious drug offenses within the meaning of 18 U.S.C.

§ 924(e). Under the U.S.S.G. § 4B1.4 Armed Career Criminal Guideline, Appellant

had a total offense level of 34 and a criminal history category of VI. The resulting

Guidelines range was 262-327 months’ imprisonment.

         Appellant moved for a downward departure, contending the small amounts of

drugs involved in his prior offenses indicated he was only a small-time drug dealer.

He also argued his prior convictions resulted from the negotiating tactics of the

Dekalb County Public Defender’s Office, which “because of the crush of cases there,

negotiates a deal whereby if [a defendant] will just plead guilty to distribution, they

will give him time served or a relatively short sentence.”

         The district court agreed that Appellant’s prior drug convictions were “very

minor” and stated they “indicate that [Rucker] is a street dealer, and a little one at

that.”    In response to the Government’s objection to this characterization of

Appellant’s prior offenses, the district court stated: “[Rucker] was dealing in a gram

and a half of a gram at a time. You consider him a big time dealer?” The district

court concluded Appellant’s “criminal history category . . . over-represents the

seriousness of his prior criminal records . . . .” On this basis, the district court

departed 3 criminal history categories, resulting in a Guidelines range of 188-235




                                           3
months’ imprisonment.3 The district court sentenced Appellant to 188 months’

imprisonment on the first count of conviction and 120 months’ imprisonment on the

second count of conviction,4 to run concurrently.

       The Government presents a number of arguments in support of its contention

that the district court abused its discretion by granting Appellant’s motion for a

downward departure. We consider only one of these arguments, as we agree the

district court erred by departing from the Armed Career Criminal Guideline based on

its conclusion that although Appellant Rucker’s prior convictions fell within the

statutory definition of serious drug offenses, they involved only small amounts of

drugs and therefore were “very minor.”

                                          II. ANALYSIS

        We review a district court’s decision to depart from the Sentencing Guidelines

for abuse of discretion. Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035,

2047-48 (1996). This abuse of discretion standard “includes review to determine that

       3
           Although the district court did not specify the Guidelines provision under which it departed,
its statements indicate the departure was pursuant to U.S.S.G. § 4A1.3, which provides:
         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.
U.S.S.G. § 4A1.3.
       4
        Although Appellant’s two counts of conviction were grouped together pursuant to U.S.S.G.
§ 3D1.2 for purposes of calculating his Guidelines range, the statutory maximum sentence on the
charge of unlawful possession of a prohibited weapon is ten years’ imprisonment. 26 U.S.C. § 5871.

                                                   4
the discretion was not guided by erroneous legal conclusions.” Id. at 100, 116 S. Ct.

at 2048.

      U.S.S.G. § 4B1.4 defines an armed career criminal as a defendant “who is

subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).”

U.S.S.G. § 4B1.4(a). A defendant is subject to an enhanced sentence under 18 U.S.C.

§ 924(e) if he violates 18 U.S.C. § 922(g) and has “three previous convictions . . . for

a violent felony or a serious drug offense, or both, committed on occasions different

from one another.” 18 U.S.C. § 924(e). Section 924(e) defines a serious drug offense

to include “an offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance (as defined

in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a

maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii).

      In this case, the parties agree that Appellant’s prior state narcotics convictions

constitute serious drug offenses within the meaning of 18 U.S.C. § 924(e)(2)(A)(ii)

and that Appellant therefore falls within the U.S.S.G. § 4B1.4 Armed Career Criminal

Guideline. They disagree, however, as to whether the district court was authorized to

depart based on its view that although the prior convictions fell within the statutory




                                           5
definition of serious drug offenses, they involved only a small amount of drugs and

therefore were “very minor.”

      In United States v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990), the Court

considered a district court’s alternative holdings that: (1) the defendant’s prior

convictions did not in fact constitute crimes of violence within the meaning of the

U.S.S.G. § 4B1.1 Career Criminal Guideline because the specific conduct involved

in the prior offenses “lacked the requisite element of violence to qualify as predicate

crimes of violence” under the Guideline; (2) even if the defendant did fall within the

Career Criminal Guideline, a downward departure was warranted due to the nature of

the prior offenses; and (3) sentencing the defendant as a career offender would be

“grossly unfair and grossly excessive.” Id. at 545 (internal citation and quotations

omitted). Only our analyses of the first two alternative holdings are relevant here.

      With respect to the district court’s ruling that the defendant’s prior convictions

did not constitute crimes of violence, the Court held that “the [G]uidelines prohibit the

sentencing court from reviewing the underlying facts of a conviction to determine

whether it is a crime of violence for career offender purposes.” Id. at 548. The Court

further held that, using a categorical approach looking only at the elements or inherent

nature of the offense, the defendant’s prior convictions did constitute crimes of

violence. Id. at 549. The Court also reversed with respect to the district court’s


                                           6
alternative ruling that if the defendant did qualify as a career offender, a downward

departure would be warranted due to the nature of the prior offenses. In so ruling, the

Court rejected the defendant’s argument that the Sentencing Commission had not

adequately considered the distinction between predicate “crimes that involve the

actual use of force and result in injury, and those that involve nothing more than the

threat of force and do not result [in] injury.” Id. We reasoned:

       [I]t would impute a serious lack of forethought on the part of the
       Commission to conclude that on the one hand a sentencing court is
       prohibited from reviewing facts underlying a conviction to determine
       whether it is a crime of violence when initially characterizing a
       defendant as a career offender, and on the other, to permit a review of the
       particular facts of each prior conviction to determine whether departure
       is warranted on the grounds that no injury resulted. If this were the case,
       those defendants characterized as career offenders would nonetheless
       receive radically disparate sentences. Such a result would be contrary
       to the intent of the [G]uidelines.

Id. at 550 (emphasis added and citation omitted).5




       5
         In United States v. Spell, 44 F.3d 936 (11th Cir. 1995), the Court somewhat modified the
Gonzalez-Lopez categorical approach to determining whether a prior offense constitutes a crime of
violence for purposes of U.S.S.G. § 4B1.1. In Spell, we noted that the Guidelines had been amended
such that the commentary to the Guidelines precluded a purely categorical approach to determining
whether a prior conviction is a crime of violence within the U.S.S.G. § 4B1.1 Career Criminal
Guideline, but still held that “a district court only may inquire into the conduct surrounding a
conviction if ambiguities in the judgment make the crime of violence determination impossible from
the face of the judgment itself.” Id. at 939 (citation omitted). As Appellant does not contend that
ambiguities in his prior judgments make the serious drug offense determinations impossible from
the face of the judgments themselves, the Spell modification of Gonzalez-Lopez does not have any
bearing on this case.

                                                7
      Our analysis here is further aided by this Court’s discussion in United States v.

Phillips, 120 F.3d 227 (11th Cir. 1997), as to the scope of U.S.S.G. § 4A1.2, the

provision upon which the district court appears to have relied in departing from the

Armed Career Criminal Guideline. In Phillips, the Court considered, inter alia,

whether the district court erred by departing downward under U.S.S.G. § 4A1.3 based

on its view that the defendant had not in fact been guilty of a prior offense serving as

a predicate crime of violence under the U.S.S.G. § 4B1.1 Career Criminal Guideline.

In rejecting this basis for the departure, the Court stated: “Just as a district court may

not directly negate a prior conviction because of doubts about the verity of the result,

it also may not do that indirectly by departing downward because of those same

doubts.” Id. at 231. We further stated that “[o]ur cases addressing § 4A1.3 appear

to have applied it to a pattern of criminal conduct, not to an individual

crime. . . . [Section 4A1.3] is concerned with the pattern or timing of prior

convictions, not with doubts about their validity.” Id. at 232.

      In this case, the parties agree it is clear from the judgments that Appellant’s

prior convictions fall within the § 924(e) definition of serious drug offenses. As for

the issue here, whether the district court erred by looking behind the fact of the

convictions for purposes of determining whether a downward departure was




                                            8
warranted, the reasoning in Gonzalez-Lopez persuades us.6 As in Gonzalez-Lopez, it

would make no sense in this case to conclude that although a sentencing court may not

look behind the fact of an unambiguous judgment in determining whether a prior

conviction serves as a predicate serious drug offense placing the defendant within the

Armed Career Criminal Guideline, it may do so to conclude a downward departure is

warranted on the grounds that the offense involved only a small amount of drugs and

therefore was not serious.7

       In so holding, we reject Appellant’s argument that the “pattern” referred to in

Phillips includes consideration of whether a defendant is a big-time dealer or merely

a small-time street-level seller. In effect, under Appellant’s view, a district court

could depart from the Armed Career Criminal Guideline based on its view that

although a prior offense falls within the statutory definition of a serious drug offense,

it involved only a small amount of drugs and therefore was not serious. Such a result



       6
         Although Gonzalez-Lopez involved the U.S.S.G. § 4B1.1 Career Criminal Guideline and
the definition of a crime of violence as opposed to the U.S.S.G. § 4B1.4 Armed Career Criminal
Guideline and the 18 U.S.C. § 924(e) definition of a serious drug offense, we see no reason to depart
from the rationale set out in that case.
       7
        Appellant contends this Court’s decision in United States v. Webb, 139 F.3d 1390 (11th Cir.
1998), dictates a contrary result. In that case, the Court simply held that U.S.S.G. § 4A1.3 “does
authorize the sentencing court to downward depart regardless of a defendant’s status as a career
offender under § 4B1.1.” Id. at 1395 (footnote and citations omitted). The Court did not consider
whether, once a district court determines prior convictions constitute serious drug offenses or crimes
of violence invoking a career offender provision, it can then depart under § 4A1.3 because it
concludes the prior offenses really were not serious or violent.

                                                  9
would not be in accord with our precedent. See Gonzalez-Lopez, 911 F.2d at 550 (to

permit a departure based on the fact that a prior crime of violence did not result in

injury would be contrary to the intent of the Guidelines because under that approach

“defendants characterized as career offenders would nonetheless receive radically

disparate sentences” (citation omitted)); cf. Phillips, 120 F.3d at 232 (“Section 4A1.3

does not permit . . . a lower sentencing range resulting from the judge’s doubts about

whether the defendant was truly guilty or fairly convicted of a prior crime.”).8


       8
           Appellant also argues that to reverse the district court’s departure in this case would be
contrary to the result reached by other Circuits. The only cases relied upon by Appellant that are
at all relevant to the issue in this case are distinguishable in they did not permit a departure based
simply on the specific facts underlying the prior convictions, but rather based on a comparison of
a defendant’s prior offenses to those of other defendants falling within the same Guidelines
enhancement provision. See United States v. Reyes, 8 F.3d 1379, 1386-1387 (9th Cir. 1993)
(affirming a departure from the Career Criminal Guideline based on the district court’s conclusion
that the defendants’ history and current offenses differed from those of most career offenders; the
court stated “the sentencing ranges resulting in exceptional discrepancies were not adequately
considered”); United States v. Sanchez-Rodriguez, 161 F.3d 556, 561 (9th Cir. 1998) (en banc)
(affirming downward departure where defendant received a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(2) because “[a]ccording due deference to the district court, [the court could not] say that
it was an abuse of discretion to hold that a $20 heroin sale is different in kind and degree from, or
outside of the norm of, other offenses . . . that similarly trigger the 16-level enhancement”); see also
United States v. Spencer, 25 F.3d 1105, 1113 (D.C. Cir. 1994) (reversing the district court’s ruling
that application to the defendant of the Career Criminal Guideline violated the Fifth and Eighth
Amendments, the court noted that if the district court “had determined [the defendant’s] criminal
history was so minor that it rendered his an ‘unusual’ career offender case, [it saw] no reason why
the court could not invoke § 4A1.3 to depart downward” (internal emphasis and citation omitted)).
Although the district court in this case did in passing contrast Appellant with major drug-dealer
defendants who receive departures for providing substantial assistance to the Government, it did not
compare Appellant’s criminal history to that of other defendants falling within the Armed Career
Criminal Guideline. Even were this not a basis on which to distinguish our case from those relied
upon by Appellant, we still would reach the same result. Permitting departure based on the
comparison of the facts underlying a defendant’s prior convictions to those underlying the prior
convictions of most career offenders would impermissibly override the Sentencing Commission’s
efforts to uniformly subject career offenders to enhanced penalties.

                                                  10
                                III. CONCLUSION

      We hold the district court erred by departing from the U.S.S.G. § 4B1.4 Armed

Career Criminal Guideline based on its conclusion that although Appellant Rucker’s

prior convictions fell within the statutory definition of serious drug offenses, they

involved only small amounts of drugs and therefore were “very minor.”

      AFFIRMED IN PART, VACATED IN PART and REMANDED FOR

RE-SENTENCING.




                                         11
