                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 99-4704
DAVID THOMPSON, a/k/a Bam,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
                  Dennis W. Shedd, District Judge.
                          (CR-98-545-DWS)

                      Submitted: October 20, 2000

                      Decided: November 2, 2000

      Before MICHAEL and TRAXLER, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Nicholas A. Lotito, DAVIS, ZIPPERMAN, KIRSCHENBAUM &
LOTITO, Atlanta, Georgia, for Appellant. J. Rene Josey, United
States Attorney, Scarlett Wilson, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
2                    UNITED STATES v. THOMPSON

Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

PER CURIAM:

   David Thompson was convicted by a jury of three counts of being
a felon in possession of a firearm in violation of 18 U.S.C.A.
§§ 922(g), 924(a) (West 2000), and one count of possessing an unreg-
istered modified shotgun in violation of 26 U.S.C. §§ 5841, 5861(d),
5871 (1994). On appeal, Thompson claims that the district court erred
by: (1) denying a motion to sever the charges; (2) denying a motion
for a directed verdict based upon the Government’s failure to prove
beyond a reasonable doubt that a firearm crossed state lines; (3)
imposing a sentence based on a finding of certain facts beyond a pre-
ponderance of the evidence; (4) increasing Appellant’s base offense
level based on a felony murder analysis; (5) upwardly departing from
the Sentencing Guidelines based on a finding that Appellant’s crimi-
nal history was inadequate; and (6) departing for extreme conduct in
light of the allegation that the Sentencing Guidelines range was based
on the same facts. Finding no reversible error, we affirm.

   This Court reviews a district court’s denial of a motion for sever-
ance under an abuse of discretion standard. See United States v. Ford,
88 F.3d 1350, 1361 (4th Cir. 1996). Offenses may be joined together
in the same indictment if they "are of the same or similar character
or are based on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common
scheme or plan." Fed. R. Crim. P. 8(a). Severance is warranted if the
defendant would be prejudiced by the joinder. See Fed. R. Crim. P.
14. The determination should weigh potential prejudice against the
interests of judicial economy. See United States v. Samuels, 970 F.2d
1312, 1314 (4th Cir. 1992). When two or more offenses are joined
because the offenses are of a same or similar character:

    three sources of prejudice are possible which may justify the
    granting of a severance under Rule 14: (1) the jury may con-
                     UNITED STATES v. THOMPSON                        3

    fuse and cumulate the evidence, and convict the defendant
    of one or both crimes when it would not convict him of
    either if it could keep the evidence properly segregated; (2)
    the defendant may be confounded in presenting defenses, as
    where he desires to assert his privilege against self-
    incrimination with respect to one crime but not the other; or
    (3) the jury may conclude that the defendant is guilty of one
    crime and then find him guilty of the other because of his
    criminal disposition.

United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976) (internal
citations omitted).

   We find that Thompson was not prejudiced by the joinder and the
district court did not abuse its discretion by denying the motion for
severance. Joinder was initially proper because the offenses were all
of a same or similar character. There is no evidence that the jury was
confused or cumulated the evidence. The evidence as to each count
was simple and direct. Thompson admitted possessing the weapons
relating to counts one, three and four.* (J.A. at 204-05, 213-14).
Count two was supported by eyewitness and expert testimony estab-
lishing that Thompson possessed a silver revolver that traveled in
interstate commerce. Furthermore, it is unlikely that the jury con-
victed Thompson based upon his criminal disposition. See Samuels,
970 F.2d at 1314.

   We further find that there was substantial evidence supporting
count two of the indictment. The interstate expert’s opinion as to the
fact that the revolver was not manufactured in South Carolina was
based on his own experience, research and consultations. The district
court did not abuse its discretion by permitting the expert to testify
as to the basis of his opinion, as this was the type of information an
interstate nexus expert would rely upon in order to arrive at an opin-
ion. See Fed. R. Evid. 703; see also United States v. Corey, 207 F.3d
84, 87-91 (1st Cir. 2000); United States v. Mann, 712 F.2d 941, 942
(4th Cir. 1983). In addition, we agree with the district court’s conclu-
sion that Kelly’s admission that there was a possibility that the

  *He denied owning the weapons.
4                    UNITED STATES v. THOMPSON

revolver may have been manufactured in South Carolina did not com-
pel the conclusion that the Government failed to prove its case.

  We further find that Thompson’s sentence was not affected by
Apprendi v. New Jersey, 503 U.S. ___, 2000 WL 807189 (U.S.
June 26, 2000) (No. 99-478). Thompson’s convictions each carried a
maximum sentence of ten years’ imprisonment. The district court did
not impose a sentence for any of the convictions above the statutory
maximum.

   The district court found that Thompson’s conduct with respect to
count two of the charges involved possession of a revolver during the
commission of another offense, attempted murder, and cross-
referenced USSG § 2X1.1. See U.S. Sentencing Guidelines Manual
§ 2K2.1(c)(1)(A) (1998). Pursuant to USSG § 2X1.1(a), the court
applied the base offense level for assault with intent to commit mur-
der under USSG § 2A2.1(a)(1) upon finding that the object of
Thompson’s conduct was first degree murder.

   At sentencing, the district court’s factual findings are reviewed
under the clearly erroneous standard. See United States v. Gormley,
201 F.3d 290, 295 (4th Cir. 2000). This Court is reluctant to overturn
the district court’s factual findings. See United States v. D’Anjou, 16
F.3d 604, 614 (4th Cir. 1994). The court’s interpretation of the Sen-
tencing Guidelines is reviewed de novo. See Gormley, 201 F.3d at
295. We find no clear error in the court’s factual findings. Further-
more, we find that the court did not err by applying the base offense
level under USSG § 2A2.1(a)(1) on the basis that Thompson’s con-
duct, if completed, would have amounted to felony murder.

   We further find that the district court did not abuse its discretion
by finding that Thompson’s criminal history category did not ade-
quately reflect his prior criminal conduct and the likelihood that he
would engage in future criminal conduct. See Koon v. United States,
518 U.S. 81, 100 (1996) (review district court’s decision to depart for
abuse of discretion). An upward departure is warranted if the court
finds that the defendant has an "‘extensive record’ that is not ade-
quately reflected by [his] Criminal History Category, or [ ] whose
criminal background shows [him] to ‘pose a greater risk of serious
recidivism,’" United States v. Blake, 81 F.3d 498 (4th Cir. 1996)
                      UNITED STATES v. THOMPSON                        5

(quoting USSG § 4A1.3, comment. (backg’d.)). A court may consider
convictions, although too old in time to be assigned criminal history
points, if the conduct of the prior convictions is similar to the current
convictions. See USSG § 4A1.3, comment. (n.8).

   Finally, we find that the district court did not abuse its discretion
by increasing Thompson’s base offense level because of extreme con-
duct under USSG § 5K2.8. Under USSG § 5K2.0, a departure outside
the Sentencing Guidelines range may be warranted if "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 Sentenc-
ing Commission in formulating the guidelines that should result in a
sentence different from that described.’" (quoting 18 U.S.C. § 3553(b)
(1994)). In order for a district court to depart, it must first consider
whether the factor it believes warrants a departure is not to be used
for such a purpose. See USSG §§ 5H1.1 to 5H1.12. On the other
hand, if the Sentencing Guidelines state that the factor is to be consid-
ered as a basis for departure, the court may depart based upon the fac-
tor if the factor is not already considered in the Sentencing
Guidelines. See United States v. Hairston, 96 F.3d 102, 105-06 (4th
Cir. 1996). If the factor is encouraged as a basis for departure and
taken into account by the Sentencing Guidelines, then the court may
depart "only if the factor is present to an exceptional degree or in
some other way makes the case different from the ordinary case
where the factor is present." Koon, 518 U.S. at 96.

   A departure based upon extreme conduct is encouraged. In the
instant case, the district court determined that Thompson’s conduct
was not within the heartland of conduct encompassed by the cross-
reference in USSG § 2K2.1(c). "Ordinarily, a determination of
‘[w]hether a given factor is present to a degree not adequately consid-
ered by the Commission’ will be made ‘in large part by comparison
with the facts of other Guidelines cases.’ Because of the ‘institutional
advantage’ of district courts in making such factual determinations,
appellate courts accord considerable deference to their departure deci-
sions, limiting review on appeal to abuse of discretion." United
States v. Paster, 173 F.3d 206, 217 (3d Cir. 1999) (quoting Koon, 518
U.S. at 98-100).

  We affirm Thompson’s convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
6                  UNITED STATES v. THOMPSON

quately presented in the materials before the court and argument
would not aid the decisional process.

                                                    AFFIRMED
