                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0087n.06
                           Filed: November 16, 2004

                                           No. 04-3050

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
JOHN FUSON,                                       )   NORTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellee.                        )




       Before: DAUGHTREY and SUTTON, Circuit Judges; FORESTER, District Judge.*


       PER CURIAM. In 1998, John Fuson pleaded guilty to a felon-in-possession-of-a-firearm

charge. The pre-sentence report recommended a guideline range of 27 to 33 months’ imprisonment,

but the district court on its own initiative departed downward eight offense levels and sentenced

Fuson to probation with a period of home detention. At trial, the government challenged the

downward departure and on appeal it renews that challenge. Concluding that the Federal Sentencing

Guidelines do not support some of the district court’s explanations for its departure and that others

of its explanations lack an adequate record, we vacate the sentence and remand the case to the

district court for re-sentencing.



       *
        The Honorable Karl S. Forester, Chief Judge of the Eastern District of Kentucky, sitting by
designation.
No. 04-3050
U.S. v. Fuson

                                                 I.


       John Fuson has a wife and three children and owns his own business. In September 2001,

Fuson’s wife purchased a 75-year-old handgun at an antique show with the intent to resell the gun

for profit. Shortly after she purchased the gun, Fuson allegedly expressed his objection to it and

mentioned that he was not supposed to have weapons in the house due to his prior felony

convictions. The gun nonetheless remained in the house for the next four months.


       In January 2002, police found the gun while searching Fuson’s residence in connection with

a warrant unrelated to the antique weapon. At the time the gun was found, it was in a closet and in

the same gun case that was given to Fuson’s wife when she purchased it. It was not loaded, but

there was ammunition elsewhere in the house. Fuson told authorities that neither he nor his family

members had ever fired the gun.


       A background check revealed that Fuson was a convicted felon, having previously pleaded

guilty to the following three counts of drug trafficking under Ohio law: selling a half ounce of

marijuana for $90 to a confidential informant on August 3, 1996; exchanging .69 grams of marijuana

for three cartons of cigarettes (worth about $75) with a confidential informant on October 23, 1998;

and exchanging one- eighth of an ounce of marijuana for three cartons of cigarettes with a

confidential informant on October 24, 1998. Fuson also had pleaded guilty to driving under the

influence on two occasions, once in 1993 and once in 1994.




                                               -2-
No. 04-3050
U.S. v. Fuson

       The government charged Fuson under 18 U.S.C. § 922(g)(1) for being a felon in possession

of a firearm, and he pleaded guilty on July 22, 2003. In the time between his plea and the

commencement of his sentence, Fuson voluntarily sought drug-abuse treatment at his own expense.


       The pre-sentence report recommended a sentence of 27 to 33 months based on a criminal

history category of II and an offense level of 17. At the sentencing hearing on December 12, 2003,

the parties stipulated that they did not object to the pre-sentence report. Over the objection of the

government, however, the district court sua sponte departed downward eight levels. In doing so,

the court gave an oral explanation for its departure, indicating that it was invoking Guidelines §§

4A1.3 and 5K2.0 and relying on the following specific bases for departure: Fuson is a productive

citizen in business with his daughter’s boyfriend; he supports his wife and three children; he

voluntarily sought drug-abuse treatment at his own expense and has not had a relapse since he began

treatment; the gun was an antique, had never been fired and was purchased for collection purposes

only; and a small amount of marijuana formed the basis for his predicate offenses. While the district

court gave these reasons for the departure in open court, the written statement of reasons for the

departure contained just the following: “Over the objections of the government, the court

determined that the defendant’s Criminal History Category was overstated. Further, the court

departed eight levels based upon the finding that this case is outside the heartland of the guidelines,

pursuant to U.S.S.G. 4A1.” JA 27. After accounting for this departure, the court (1) sentenced

Fuson to five years of probation with the first six months to be served through home detention and

(2) fined him $2,000.



                                                 -3-
No. 04-3050
U.S. v. Fuson

                                                    II.


        The district court sentenced Fuson in December 2003, roughly eight months after the

PROTECT Act, Pub. L. No. 108-21 § 401(c), 117 Stat. 650 (Apr. 2003), became law. The Act not

only requires appellate courts to give de novo review to downward departures under the Sentencing

Guidelines, 18 U.S.C. § 3742(e), but it also requires sentencing courts to state “with specificity in

the written order of judgment” their reasons for departing from the guideline range, 18 U.S.C. §

3553(c)(2). Perhaps as a result of the recency of the Act’s passage, the district court gave most of

its reasons for the departure through an oral statement in court and ultimately issued a two-sentence

written order, which by itself neither adequately explains nor justifies the departure. Under these

circumstances, it is appropriate to remand the case to the district court to allow it in the first instance

to explain in writing the basis for the departure.


        Even aside from the writing requirement of section 3553(c)(2), there is an independent (non-

technical) reason for remanding the case. When one looks outside the written judgment, the district

court’s oral reasons for the departure do not support it. First, the court appears to rely heavily on

its determination that the pre-sentence report overstates Fuson’s criminal history category. But a

departure under U.S.S.G. § 4A1.3 (adequacy of criminal history category) may be used only to

depart downward (in reality sideways and to the left) one level on the horizontal axis of the

sentencing grid, not eight levels on the vertical axis of the grid. See United States Sentencing

Commission, Guidelines Manual, Sentencing Table (Nov. 2002). In the pre-sentence report,

Fuson’s criminal history was listed as Category II. At best, then, a departure could bring him to


                                                   -4-
No. 04-3050
U.S. v. Fuson

Category I on the sentencing grid. Coupled with an offense level of 17, that leaves a Guideline

range of 24 to 30 months. In other words, while it may well be appropriate on remand to give Fuson

this one-level departure under § 4A1.3—a matter we leave to the district court in the first

instance—the point is that this theory of departure was not adequately explained by the district court

and at best could justify just one level of departure on the horizontal sentencing grid.


       Second, the district court also invoked § 5K2.0 of the Guidelines, which provides for

departures in cases where the circumstances of the case either have not been adequately taken into

account by the Guidelines or have been taken into account by the Guidelines but are present to an

exceptional degree. A review of the sentencing-hearing transcript, however, suggests that many of

the reasons given by the district court for departing under this provision are foreclosed by our cases

or by the Guidelines themselves. The court, for example, appeared to aggregate the offender and

offense characteristics in Fuson’s case to create a single situation not contemplated by the

Guidelines, an approach that we rejected in United States v. Dalecke, 29 F.3d 1044 (6th Cir. 1994).

There, we held that a sentencing court could not employ an aggregate-and-conquer approach to this

Guideline by adding up individual circumstances that were contemplated by the Guidelines to create

“a single atypical circumstance” that was not covered by the Guidelines. Id. at 1047.


       In justifying the departure, the court also noted that the weapon at issue was an antique and

was not used for any criminal purpose. Section 2K2.1(b)(2) of the Guidelines, it is true, states that

a six-level departure may be appropriate in cases where the defendant “possessed all ammunition

and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or


                                                -5-
No. 04-3050
U.S. v. Fuson

otherwise unlawfully use such firearms or ammunition.” But the provision goes on to bar a

departure if the defendant’s predicate offense was a controlled-substance offense, U.S.S.G. §

2K2.1(b)(2), which is precisely the situation here.


       The district court, finally, invoked several other reasons for departure that ordinarily do not

suffice to lower a defendant’s sentence—that he owned his own business, that he supported his wife

and three children through his business and that he volunteered at his own expense to begin drug

rehabilitation. Section 5H1.5 of the Guidelines says that employment history is “not ordinarily

relevant in determining whether a sentence should be outside the applicable guideline range.” And

section 5H1.6 of the Guidelines says that “family ties and responsibilities and community ties are

not ordinarily relevant in determining whether a sentence should be outside the applicable guideline

range.” Factors that are “not ordinarily relevant” can only form the basis for a departure when they

are “present to an exceptional degree or in some other way make[] the case different from the

ordinary case where the factor is present.” Koon v. United States, 518 U.S. 81, 95–96 (1996).

Likewise, only “extraordinary efforts at rehabilitation” can form the basis for a downward departure.

See United States v. Sauer, No. 98-6066, 1999 WL 1021582, at *4 (6th Cir. Nov. 1, 1999). In all

three instances, the court needs to explain on remand (if it wishes to make a downward departure)

how Fuson’s case is an extraordinary one in each (or some) of these respects.




                                                -6-
No. 04-3050
U.S. v. Fuson

                                              III.


       Accordingly, we vacate the defendant’s sentence, remand the case to the district court for

re-sentencing and the ask the court to state in writing its reasons for granting any downward

departure.




                                              -7-
