UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4222

GREGORY J. SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-96-654)

Submitted: November 28, 1997

Decided: January 5, 1998

Before WIDENER and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Marshall Prince, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Gregory J. Smith appeals the 360-month sentence he received after
he pled guilty to being a felon in possession of a firearm, 18 U.S.C.A.
§§ 922(g)(1), 924(e) (West Supp. 1997). He contends that the district
court abused its discretion in departing upward on the ground that a
death resulted from Smith's offense. See U.S. Sentencing Guidelines
Manual § 5K2.1, p.s. (1995). For the reasons explained below, we
vacate the sentence and remand for resentencing.

Smith was released from a nine-year state sentence for armed rob-
bery in June 1994. On July 11, 1994, Smith went to a grocery store
with his brother and his brother's girlfriend. Smith went into the store
while the others waited outside. Smith's brother got into a fight with
two men in the parking lot and his girlfriend ran into the store to tell
Smith. When Smith came outside and saw the fight, he pulled out a
.38 caliber pistol and shot one of the men fighting with his brother.
The man died shortly afterward. Smith was charged with murder in
state court, but pled guilty to voluntary manslaughter. He received a
twelve-year sentence and was subsequently charged with the instant
federal firearms offense.

The probation officer recommended a base offense level of 26, see
USSG § 2K2.1. A two-level enhancement applied because the pistol
was stolen, see USSG § 2K2.4(b)(4), and a four-level enhancement
was made because the firearm was used in connection with another
felony, see USSG § 2K2.1(b)(5), raising the offense level to 32.
Smith had three prior convictions for violent felonies and qualified for
sentencing as an armed career criminal. See 18 U.S.C.A. § 924(e)
(West Supp. 1997); USSG § 4B1.4. Because he was an armed career
criminal and he had used the firearm in connection with another fel-
ony, Smith's offense level was further increased to 34.1 Smith's six-
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1 Under USSG § 4B1.4, Smith's offense level could be either the
offense level calculated under USSG § 2K2.1 or 34 (because the firearm
was used in a crime of violence), whichever was greater.

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teen criminal history points placed him in criminal history category
VI. With a three-level reduction for acceptance of responsibility, see
USSG § 3E1.1, the recommended offense level was 31. The recom-
mended guideline range was 188-235 months.

The probation officer also recommended that the district court
might wish to consider an upward departure, either under USSG
§ 4A1.3 (Adequacy of Criminal History Category) or under USSG
§ 5K1.2 (Death), because a death resulted from Smith's illegal pos-
session of a firearm. The government subsequently moved for a
departure on both grounds. Following the government's recommenda-
tion, the district court departed to offense level 37 and imposed a sen-
tence of 360 months.

A criminal history category which does not adequately reflect the
defendant's past criminal conduct or potential for other crimes and the
fact that a death resulted from the instant offense are both encouraged
factors for departure. "Encouraged factors are those which `the [Sen-
tencing] Commission has not been able to take into account fully in
formulating the guidelines.'" Koon v. United States, ___ U.S. ___, 64
U.S.L.W. 4512, 4516 (U.S. June 13, 1996) (Nos. 94-1664/8842). Cer-
tain factors are encouraged as a basis for departure"even though the
reason for departure is taken into consideration in the guidelines (e.g.,
as a specific offense characteristic or other adjustment), if the court
determines that, in light of unusual circumstances, the guideline level
attached to that factor is inadequate." USSG§ 5K2.0.

To the extent that the district court based its departure on the inade-
quacy of criminal history category VI to reflect the likelihood that
Smith would commit other crimes, the court failed to explain fully its
reasons for departing upward by six offense levels. See United States
v. Cash, 983 F.2d 558, 561 & nn.6-7 (4th Cir. 1992); United States
v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). We are therefore con-
strained to remand the case for compliance with Cash and Rusher.

With regard to death as a basis for departure, the applicable guide-
line in this case directs that the most analogous guideline for homi-
cide offenses should be applied if death resulted from the firearms
offense and if the cross-reference would yield a higher offense level
than the one which would otherwise apply. See USSG

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§ 2K2.1(c)(1)(B).2 The presentence report did not acknowledge the
cross-reference and the government did not argue that the cross-
reference should be applied. There is no indication in the materials
presented on appeal that the district court was made aware of the
cross-reference or considered it before deciding to depart. Therefore,
we find that a remand is necessary to allow the court to consider
whether the cross-reference was adequate to account for the death
Smith caused.

Accordingly, we vacate the sentence imposed and remand for
resentencing. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

VACATED AND REMANDED
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2 The homicide guidelines which might possibly apply are: USSG
§ 2A1.1 (First Degree Murder), base offense level 43; USSG § 2A1.2
(Second Degree Murder), base offense level 33; USSG§ 2A1.3 (Volun-
tary Manslaughter), base offense level 25.

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