PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4488

TERRY FENNER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4489

HERBERT FENNER,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-95-95-MJG)

Argued: April 10, 1998

Decided: July 21, 1998

Before WILKINS and NIEMEYER, Circuit Judges, and
CHAMBERS, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Niemeyer and Judge Chambers joined.

_________________________________________________________________
COUNSEL

ARGUED: Beth Mina Farber, Chief Assistant Federal Public
Defender, Baltimore, Maryland; Harry D. McKnett, Columbia, Mary-
land, for Appellants. Jamie M. Bennett, Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee. ON BRIEF: James K.
Bredar, Federal Public Defender, Baltimore, Maryland, for Appel-
lants. Lynne A. Battaglia, United States Attorney, Baltimore, Mary-
land, for Appellee.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Terry Fenner and Herbert Fenner appeal their various drug and
firearm convictions and resulting sentences. They principally argue
that the district court erred in concluding that it was not authorized
to depart downward from their applicable guideline ranges based on
its concern that a literal application of the cross reference in U.S. Sen-
tencing Guidelines Manual § 2K2.1(c)(1)(B) (1995) resulted in a sen-
tence that was violative of due process. Finding that the district court
did not err in determining that it lacked authority to depart based on
the application of the § 2K2.1(c)(1)(B) cross reference, and conclud-
ing that the Fenners' remaining allegations of error lack merit, we
affirm the Fenners' convictions and sentences.

I.

Robert Holley recruited Terry Fenner into a Baltimore, Maryland
heroin and cocaine distribution conspiracy. Terry's primary responsi-
bility was to oversee other members of the conspiracy and to prevent
robberies by rival gang members. Holley, however, ultimately ousted
Terry following a heated argument that occurred when Holley became
convinced that Terry had embezzled drug proceeds. Two days after
this dispute, Holley was murdered on the street outside his home.
Eyewitnesses to the murder indicated that two men with firearms,
whom they identified as brothers Terry and Herbert Fenner, had
approached Holley as he was attempting to hail a taxi and shot him
as he fled from them.

                     2
The Fenners were charged with Holley's murder in state court and
acquitted. Thereafter, they were prosecuted on federal charges. Terry
was found guilty of conspiring to distribute cocaine and heroin, see
21 U.S.C.A. § 846 (West Supp. 1998); using or carrying a firearm
during and in relation to a crime of violence, see 18 U.S.C.A.
§ 924(c)(1) (West Supp. 1998); and being a felon in possession of a
firearm, see 18 U.S.C.A. § 922(g)(1) (West Supp. 1998). Herbert was
convicted of two counts of being a felon in possession of a firearm,
see 18 U.S.C.A. § 922(g)(1), and possessing an unregistered sawed-
off shotgun, see 26 U.S.C.A. § 5861(d) (West 1989). The jury was
unable to reach a verdict with respect to a separate charge against the
Fenners of using or carrying a firearm during and in relation to a drug
trafficking offense, see 18 U.S.C.A. § 924(c)(1), a charge that related
to the weapons they used in connection with Holley's murder. The
district court ultimately entered a judgment of acquittal on that
charge, ruling that because Terry had been expelled from the drug dis-
tribution conspiracy prior to Holley's murder, the evidence was insuf-
ficient to support a determination that they possessed the weapons
"during and in relation to" a drug trafficking offense. 18 U.S.C.A.
§ 924(c)(1).

At sentencing, the district court found that the Fenners were
responsible for Holley's murder and applied the cross reference to the
homicide guidelines contained in U.S.S.G. § 2K2.1(c)(1)(B). The dis-
trict court determined Terry's base offense level by employing the
first-degree murder guideline. See U.S.S.G.§ 2A1.1. And, Terry's
offense level of 43, combined with his Criminal History Category
of VI, resulted in a guideline sentence of 55 years imprisonment--the
statutory maximum penalty available by imposing consecutive sen-
tences for the three offenses of conviction. See U.S.S.G.
§§ 5G1.1(a), 5G1.2(d); see also 18 U.S.C.A. § 924(a)(2) (West Supp.
1998) (providing a maximum penalty of ten years imprisonment for
a violation of § 922(g)); 18 U.S.C.A. § 924(c)(1) (providing a five-
year mandatory consecutive sentence for using or carrying a firearm
during and in relation to a drug trafficking offense); 21 U.S.C.A.
§ 841(b)(1)(B) (West Supp. 1998) (providing a maximum penalty of
40 years imprisonment for a violation of § 846 involving "100 grams
or more of a mixture or substance containing a detectable amount of
heroin"). The district court determined Herbert's base offense level by

                    3
applying the second-degree murder guideline. See U.S.S.G. § 2A1.2.1
Herbert's base offense level of 33, combined with his Criminal His-
tory Category of V, resulted in a guideline range of 210-262 months
imprisonment. Although the district court expressed concern that the
application of the cross reference resulted in a rather large enhance-
ment of the Fenners' guideline ranges--without the use of the cross
reference Terry's guideline range would have been 442-507 months
imprisonment and Herbert's guideline range would have been 92-115
months imprisonment--it refused to depart downward, ruling that it
lacked the authority to do so. The district court sentenced Terry and
Herbert respectively to 55 years and 210 months imprisonment.

II.

The Fenners principally argue that because the district court erro-
neously believed that it lacked the authority to depart downward, the
sentences imposed upon them must be vacated to permit the district
court to determine whether to depart. In support of their argument, the
Fenners explain that the district court ruled prior to the decision of the
Supreme Court in Koon v. United States, 518 U.S. 81 (1996), and that
Koon makes clear that only in those narrow circumstances in which
the guidelines forbid a district court to depart on a specified basis
does a district court lack the authority to do so. See id. at 93-94, 106-
07. Because, the Fenners continue, the enhancement of their guideline
ranges produced through application of the § 2K2.1(c)(1)(B) cross
reference is not a factor expressly forbidden for departure by the
guidelines, the district court must possess the authority to depart on
that basis. Consequently, they maintain, a remand is required to per-
mit the district court to exercise its authority to do so.

The Fenners are correct that Koon holds that a district court is cate-
gorically forbidden to depart only on those bases expressly foreclosed
by the guidelines themselves. Nevertheless, the Koon Court recog-
nized that decisions to depart grounded upon other bases would be
reviewed for an abuse of discretion. See id. at 96-100. Accordingly,
we need not remand to permit the district court to exercise its discre-
tion to depart if its decision to do so on remand would constitute an
_________________________________________________________________
1 The district court applied the second-degree murder guideline to Her-
bert because the court found that he did not intend to kill Holley.

                     4
abuse of discretion. Hence, we turn to analyze whether the basis artic-
ulated by the district court--the enhancement to the Fenners' guide-
line ranges resulting from application of the § 2K2.1(c)(1)(B) cross
reference--constitutes an appropriate basis for departure.

A.

Congress has instructed that a district court must impose a sentence
within the range that results from the proper application of the guide-
lines "unless the court finds that there exists an aggravating or miti-
gating circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that
described." 18 U.S.C.A. § 3553(b) (West Supp. 1998). In order to
ascertain whether a factor under consideration is an appropriate basis
for departure, a sentencing court should determine whether the factor
was forbidden, encouraged, discouraged, or unmentioned by the
Commission as a basis for departure. See Koon , 518 U.S. at 93-96;
United States v. Barber, 119 F.3d 276, 279-80 (4th Cir.) (en banc),
cert. denied, 118 S. Ct. 457 (1997). This determination is made by
reference to the guidelines, policy statements, and commentary. See
Koon, 518 U.S. at 92-93. Whether and under what circumstances a
sentencing court properly may depart on the basis of any given factor
is measured in large part by the category into which the factor falls.
See id. at 94-96.

If a factor is one upon which the Commission has neither forbid-
den, encouraged, nor discouraged departure in the guidelines, policy
statements, or commentary, the circumstance is considered to be an
unmentioned factor. See id. at 96; United States v. Brock, 108 F.3d
31, 35 (4th Cir. 1997). Although the Commission recognized the pos-
sibility of departures based on factors not mentioned in the guidelines,
it anticipated that such departures would be "highly infrequent" "be-
cause the guidelines, offense by offense, seek to take account of those
factors that the Commission's data indicate[d] made a significant dif-
ference in pre-guidelines sentencing practice." U.S.S.G. Ch. 1, Pt. A,
intro. comment. 4(b). Thus, the Commission envisioned that depar-
tures principally would be reserved for those "rare" situations in
which an important factor occurs in connection with a crime in which
it typically occurs only infrequently. Id. Consequently, departure on

                    5
the basis of an unmentioned factor is permissible only when that cir-
cumstance takes the case outside the heartland of situations addressed
by the applicable guideline. See Koon, 518 U.S. at 96.2

Here, the enhancement resulting from an application of the
§ 2K2.1(c)(1)(B) cross reference has not been identified by the Com-
mission in the guidelines, policy statements, or commentary as a for-
bidden, encouraged, or discouraged basis for departure. Application
of the cross reference cannot be considered a forbidden factor because
it is not listed by the Commission as one "that never can be" a basis
for departure. Id. at 93; see id. at 106-07. Similarly, the enhancement
resulting from application of the § 2K2.1(c)(1)(B) cross reference is
not an encouraged or discouraged factor because the appropriateness
of the enhancement resulting from application of the cross reference
as a basis for departure is not expressly addressed in the guidelines,
policy statements, or commentary. See id. at 94-95 (discussing factors
that the Commission has identified as encouraged and discouraged
factors). Because the enhancement resulting from application of the
§ 2K2.1(c)(1)(B) cross reference is a factor that has been neither for-
bidden, encouraged, nor discouraged as a basis for departure by the
Commission, it must be considered an unmentioned factor.

To determine whether departure based on an unmentioned factor is
appropriate, a "court must, after considering the structure and theory
of both relevant individual guidelines and the Guidelines taken as a
whole, decide whether [the factor] is sufficient to take the case out of
the Guideline's heartland." Id. (citation & internal quotation marks
_________________________________________________________________
2 It is essential to recognize that "`[t]he Commission intend[ed] the sen-
tencing courts to treat each guideline as carving out a "heartland," a set
of typical cases embodying the conduct that each guideline describes'"
and to consider as potential bases for departure factors that take the case
outside the heartland of the applicable guideline. Koon, 518 U.S. at 93
(quoting U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b)). Thus, the Com-
mission has indicated that it adequately considered circumstances within
the heartland of conduct encompassed by the guidelines and did not con-
sider conduct falling outside the heartland. Accordingly, the crucial
inquiry is whether the individual facts that the district court is consider-
ing are taken into account in the heartland of situations encompassed
within the applicable guideline.

                    6
omitted). Accordingly, it must be determined whether the enhance-
ment resulting from application of the cross reference is taken into
account within the heartland of the applicable guidelines.

Section 2K2.1 was written by the Commission to address the heart-
land of a wide variety of firearm possession and transportation
offenses. See U.S.S.G. § 2K2.1. A cross reference contained in
§ 2K2.1(c)(1) provides that "[i]f the defendant used or possessed any
firearm ... in connection with the commission ... of another offense,
... apply ... (B) if death resulted, the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above." The language of
the cross reference plainly indicates that when a firearm is illegally
possessed in connection with another offense in which death results,
the sentencing court must enhance the defendant's sentence in accor-
dance with the homicide guidelines if that sentence is greater than that
calculated without reference to the homicide guidelines. Thus, there
can be no doubt that the guidelines take into account that the applica-
tion of the § 2K2.1(c)(1)(B) cross reference will result in an enhanced
guideline range.

B.

The Fenners contend, however, that even if the application of the
§ 2K2.1(c)(1)(B) cross reference does not constitute a basis for down-
ward departure because that factor is taken into consideration in the
guidelines, the present facts nevertheless present a factor warranting
departure that is not accounted for in the guidelines. The Fenners
maintain that the enhancement to their guideline range is so large that
it may not be imposed on the basis of conduct of which they have
been acquitted twice without a violation of their rights to due process.
Thus, they contend, the district court must have been authorized to
depart downward in order to cure the due process violation that would
result if a sentence were imposed within the guideline range resulting
from an application of the § 2K2.1(c)(1)(B) cross reference.

The constitutional guarantee of due process protects a criminal
defendant "against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he
is charged." In re Winship, 397 U.S. 358, 364 (1970). Generally, the

                     7
determination by the legislature of the elements of the offense is con-
clusive in assessing what facts the prosecution must prove in order to
convict. See McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). As
a corollary, factors that bear only upon the sentence to be imposed,
and are not elements of the offense, typically need not be proven
beyond a reasonable doubt by the prosecution and may be determined
by the sentencing court based on a preponderance of the evidence.
However, the due process guarantees of the Constitution do impose
some constraints upon how far this general proposition may be taken.
See id. at 86; Patterson v. New York, 432 U.S. 197, 210 (1977); see
also Almendarez-Torres v. United States, 118 S. Ct. 1219, 1230
(1998).

For example, in Mullaney v. Wilbur, 421 U.S. 684, 704 (1975), the
Supreme Court held unconstitutional a provision governing the sen-
tence imposed for felonious homicide. Under Maine law, "[a]bsent
justification or excuse, all intentional or criminally reckless killings
[were] felonious homicides," which were punishable by life imprison-
ment. Id. at 691. However, if a defendant proved by a preponderance
of the evidence that he acted in the heat of passion on sudden provo-
cation, he would be sentenced to a minimum of a nominal fine and
a maximum of 20 years imprisonment. See id. at 691-92. Although
Maine defined the crime of felonious homicide without reference to
the presence or absence of heat of passion on sudden provocation and
treated the existence of this factor as one mitigating sentencing, the
Supreme Court held "that the Due Process Clause requires the prose-
cution to prove beyond a reasonable doubt the absence of heat of pas-
sion on sudden provocation when the issue is properly presented in
a homicide case." Id. at 704. The Court explained that in some
instances due process requires the prosecution to shoulder the burden
of proving facts bearing on the degree of criminal culpability beyond
those facts necessary for conviction. The Court stated that in deter-
mining when this was so "an analysis that looks to the operation and
effect of the law as applied and enforced by the[government] and to
the interests of both the [government] and the defendant as affected
by the allocation of the burden of proof" is required. Id. at 699 (cita-
tion & internal quotation marks omitted).

In contrast, in McMillan, the Court upheld against a due process
challenge a Pennsylvania law providing for a five-year mandatory

                    8
minimum sentence when a defendant who was convicted of specified
crimes visibly possessed a firearm during the commission of the
offense. See McMillan, 477 U.S. at 86. The Court pointed to several
factors supporting a conclusion that the Pennsylvania law did not
transgress the constitutional line. See id. at 86-88. First, the Pennsyl-
vania law did not violate "the limits expressly set out in Patterson"--
i.e., that "[i]t is not within a province of a legislature to declare an
individual guilty or presumptively guilty of a crime" or to "command
that the finding of an indictment, or mere proof of the identity of the
accused, should create a presumption of the existence of all the facts
essential to guilt." Id. at 86-87 (internal quotation marks omitted).
Second, the possible exposure in punishment confronted by a defen-
dant subject to the Pennsylvania law did not range from a modest fine
to life imprisonment. See id. at 87. Third, the Pennsylvania law
adjusted only the mandatory minimum penalty and not the maximum
penalty available and therefore merely limited the discretion normally
afforded to the sentencing court in selecting an appropriate penalty
within an established range. See id. at 87-88. Fourth, the Pennsylvania
law did not create a new offense with a distinct penalty. See id. at 88.
And, finally, the Pennsylvania law gave "no impression of having
been tailored to permit the visible possession finding to be a tail
which wags the dog of the substantive offense." Id. Rather, the law
merely prescribed the specific weight to be accorded the finding that
the defendant visibly possessed a firearm. See id. at 89-90; see also
Almendarez-Torres, 118 S. Ct. at 1230.

Thus, it can be said that sometimes the prosecution must bear the
burden of proving beyond a reasonable doubt facts bearing upon sen-
tencing even though such facts do not establish an element of the
offense. The precise due process limitations on the allocation or stan-
dard of proof for facts that bear on the degree of criminal culpability
but that are not defined by law as an element of the offense have not
been clarified, however. See McMillan, 477 U.S. at 86. Nevertheless,
we find guidance in the previous decisions of the Court.

Here, as explained above, the sentencing guidelines provide that in
determining the appropriate sentence for specified firearms offenses
governed by U.S.S.G. § 2K2.1, the court should impose a sentence
commensurate with that dictated by the most analogous homicide
guideline if the firearm was used or possessed in connection with

                    9
another offense in which death resulted and if the sentence so calcu-
lated is greater than that indicated by reference to the firearms guide-
line. See U.S.S.G. § 2K2.1(c)(1)(B). The § 2K2.1(c)(1)(B) cross
reference "does not transgress the limits expressly set out in
Patterson." McMillan, 477 U.S. at 86. First, it does not create any
presumption that the firearm offense of which the defendant was con-
victed involved death. See id. at 87. Further, the possible exposure to
punishment confronted by the Fenners under the § 2K2.1(c)(1)(B)
cross reference does not range from a modest fine to life imprison-
ment. See id. Instead, Terry was subject to an increase from 42 years
imprisonment to 55 years imprisonment, and Herbert was subject to
an increase from 115 months imprisonment to 210 months imprison-
ment. We cannot say that this increase is so profound that it is suffi-
cient to implicate due process concerns or to give the "impression of
having been tailored to permit" the application of the cross reference
"to be a tail which wags the dog of the substantive offense." Id. at 88.
Additionally, the § 2K2.1(c)(1)(B) cross reference does not create a
new offense or increase the statutory maximum penalty to which the
Fenners were exposed, but merely limits the discretion of the district
court in selecting an appropriate sentence within the statutorily
defined range. See id. at 87-88. All of these factors point in favor of
a conclusion that the application of the § 2K2.1(c)(1)(B) cross refer-
ence did not constitute a violation of the Fenners' right to due pro-
cess.

In support of their position, the Fenners point to United States v.
Lombard, 72 F.3d 170 (1st Cir. 1995), in which the court held that a
district court had erred in ruling that it lacked authority to depart
downward from the guideline range that resulted from an application
of the § 2K2.1(c)(1)(B) cross reference when the extent of the
enhancement to the guideline range was so great that it resulted in a
violation of due process. The court reasoned that"[t]he Supreme
Court decisions on sentencing, while generally endorsing rules that
permit sentence enhancements to be based on conduct not proved to
the same degree required to support a conviction, have ... cautioned
against permitting a sentence enhancement to be the`tail which wags
the dog of the substantive offense.'" Id. at 176 (quoting McMillan,
477 U.S. at 88). The Lombard court determined that the application
of the § 2K2.1(c)(1)(B) cross reference to augment the defendant's
guideline range from 262-327 months imprisonment to a mandatory

                    10
life sentence so increased the punishment in degree and kind that the
enhancement wagged the dog of the firearms offense. See id. at 177.

Lombard, however, presents a different situation than that pre-
sented here, and we need not resolve the issue presented in Lombard
to conclude that the Fenners faced no due process violation in the
application of the § 2K2.1(c)(1)(B) cross reference. Because the statu-
tory maximum term of imprisonment to which the Fenners were sub-
jected was far less than the sentence of life imprisonment to which
Lombard was exposed, the application of the § 2K2.1(c)(1)(B) cross
reference did not implicate an increase in criminal culpability in kind
or degree similar to the enhancement at issue in Lombard, which the
court there found dispositive. Consequently, we do not find Lombard
to be persuasive.

III.

In sum, we reject the Fenners' argument that the application of the
§ 2K2.1(c)(1)(B) cross reference violated their right to due process
and hence that the district court must have been authorized to depart
downward from the resulting guideline range on that basis.3 Because
the Fenners have failed to identify any basis that the district court
properly could employ to depart downward from their guideline
ranges, we find no need to remand to the district court for further con-
sideration of their sentences. Accordingly, we affirm the Fenners'
convictions and sentences.4

AFFIRMED
_________________________________________________________________
3 The Fenners raised no argument concerning the standard of proof that
must be satisfied in order to impose the enhancement resulting from the
§ 2K2.1(c)(1)(B) cross reference consistent with due process. This omis-
sion is no doubt the result of the district court finding beyond a reason-
able doubt that the Fenners were responsible for Holley's death. Because
no question concerning the standard of proof is before the court, we
express no view on this issue. See Almendarez-Torres, 118 S. Ct. at
1233.
4 We have carefully considered the other arguments raised by the Fen-
ners relating to their convictions and sentences and find them to be with-
out merit.

                    11
