                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 01-4972
TYRIQUE STOKES,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                 Marvin J. Garbis, District Judge.
                            (CR-01-266)

                      Submitted: May 30, 2002

                       Decided: July 11, 2002

        Before KING and GREGORY, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

James Wyda, Federal Public Defender, Gary W. Christopher, Melissa
M. Moore, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Bal-
timore, Maryland, for Appellant. Thomas M. DiBiagio, United States
Attorney, Bonnie S. Greenberg, Assistant United States Attorney,
Thomas Nanni, Third-Year Law Student, Baltimore, Maryland, for
Appellee.
2                      UNITED STATES v. STOKES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Tyrique Stokes pled guilty to armed bank robbery and carrying or
using a firearm in a crime of violence.1 The district court departed
upward from the guideline range, finding that Stokes’ criminal history
did not adequately reflect the likelihood that he would commit other
crimes, U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (2001), and
sentenced Stokes to forty-six months imprisonment for the bank rob-
bery and a consecutive eighty-four months imprisonment for the
§ 924(c) conviction. Stokes appeals this sentence. For the reasons
explained below, we vacate the sentence and remand for resentencing.

  The bank robbery was Stokes’ first criminal conviction. However,
by the time he was sentenced, Stokes had been charged in state court
with the first degree murder of his friend Tyrone Williams. The mur-
der occurred two weeks before the bank robbery and circumstantial
evidence implicated Stokes. The government requested an upward
departure under USSG § 5K2.9, p.s. (Criminal Purpose), because
Stokes’ co-defendant in the bank robbery told investigators that
Stokes said he wanted to "beat a body" (a murder charge) and that the
bank robbery was committed so that Stokes could obtain money to
use either to hire a lawyer or leave town.

   The district court decided to depart, but instead of increasing the
offense level, it departed from criminal history category I to category
III based on the inadequacy of Stokes’ criminal history (he had no
criminal history points), and the likelihood that he would commit
other crimes.2 USSG § 4A1.3. The court specifically declined to find
    1
    The indictment charged a violation of 18 U.S.C.A. § 2113(a), (d)
(West 2000), 18 U.S.C. § 2 (1994), in Counts 1 and 2, and in Count 3,
a violation of 18 U.S.C.A. § 924(c) (West 2000), 18 U.S.C. § 2.
  2
    The court stated that the departure from the recommended guideline
range of 30-37 months could be accomplished either by an increase of
                        UNITED STATES v. STOKES                         3
that Stokes committed the murder, but reasoned that Stokes had "a
problem, and [his] reaction [was] to commit another violent crime to
get some money to help with it."

  On appeal, Stokes argues that (1) the upward departure was not
based on reliable evidence that he was involved in the murder, (2) a
departure under § 4A1.3 was improper because he had no prior crimi-
nal history and could not be termed a recidivist absent a finding that
he had been involved in the murder, and (3) the court failed to explain
why a departure to criminal history category II was not adequate.

   A sentencing court may depart above the guideline range only if
the court finds an aggravating factor of a kind, or to a degree, not ade-
quately taken into consideration by the Sentencing Commission. 18
U.S.C.A. § 3553(b) (West 2000). The court’s determination in this
respect should focus on whether the factor is taken into account by
the guidelines, policy statements, or commentary. United States v.
Barber, 119 F.3d 276, 280 (4th Cir. 1997) (en banc). When the sen-
tencing court decides to depart from a correctly determined guideline
range, the court must first identify the factor that potentially warrants
departure. United States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996)
(construing Koon v. United States, 518 U.S. 81 (1996)). The court
should determine whether the factor so identified is forbidden,
encouraged, discouraged, or unmentioned in the guidelines as a possi-
ble basis for departure. Rybicki, 96 F.3d at 757. If the court identifies
a factor for which departure is encouraged, and the factor is already
accounted for under the applicable guideline, a departure is possible
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 v. United States, 518 U.S. at 96.

   Finally, the court must decide whether the factor takes the case out
of the applicable guideline’s heartland and justifies a departure. Ry-

two offense levels or by moving from criminal history category I to cate-
gory III. We conclude that it was the latter, as the judgment order states
that category I was inadequate, and a criminal history departure may only
be structured as an increase in the offense level when the defendant is in
category VI. See United States v. Cash, 983 F.2d 558, 561 n.6 (4th Cir.
1992).
4                      UNITED STATES v. STOKES
bicki, 96 F.3d at 758. The court’s ultimate decision to depart is
reviewed for abuse of discretion, but its underlying factual findings
are reviewed for clear error and, if the departure is based on a misin-
terpretation of the guideline, that underlying ruling is reviewed de
novo. Id.

   The district court determined that Stokes was an unusual first
offender because he had demonstrated a propensity to commit violent
crimes despite the fact that he had no prior convictions. A criminal
history category that does not adequately reflect the likelihood that
the defendant will commit other crimes is an encouraged factor for
departure. USSG § 4A1.3; United States v. Connelly, 156 F.3d 978,
985 (9th Cir. 1998).

   However, the court did not find by a preponderance of the evidence
that Stokes was guilty of the murder. Without a finding that Stokes
had committed the murder, the court’s conclusion that Stokes had
demonstrated a strong tendency to recidivism has no factual support
because the court did not establish that he committed more than one
crime.

   Moreover, the court’s determination that Stokes was unusual
because he had shown that his reaction to a problem was to commit
a violent crime is unsound in that the same reasoning could apply to
any defendant convicted of robbery. Using the court’s approach, a
departure would always be warranted for every crime in which the
defendant’s motive is to solve a problem by getting money in an ille-
gal manner.

    Other courts that have departed upward because of the likelihood
that the defendant will commit future crimes have done so in light of
the defendant’s unusual record of repeated criminal conduct. See
United States v. Koeberlein, 161 F.3d 946, 952 (6th Cir. 1998) (depar-
ture above category VI for defendant who "escaped from detention
. . . committed new crimes while charges were pending against him,"
and "violated parole on numerous occasions"); United States v.
Paredes, 87 F.3d 921, 926-27 (7th Cir. 1996) (departure above cate-
gory VI where defendant’s "past reflects her unrelenting deviant ten-
dencies and documents her consistent return to a life of crime
following incarceration"); United States v. Saffeels, 39 F.3d 833, 837-
                       UNITED STATES v. STOKES                        5
38 (8th Cir. 1994) (departure above category VI where defendant was
deemed incorrigible because prior incarcerations had not deterred him
from criminal activity); United States v. Sturgis, 869 F.2d 54, 56-57
(2d Cir. 1989) (departure from category III to V where defendant was
awaiting sentencing for two felony offenses committed within two
months of the instant offense).

   Stokes does not fit the pattern apparent in these cases. The factors
identified by the Ninth Circuit as relevant "in assessing the likelihood
of recidivism are 1) the quantity (or ‘repetitiveness’) of uncounted
criminal conduct, 2) the similarity of uncounted criminal conduct to
the offense conduct, and 3) the degree to which the defendant has
been deterred by prior sentences." Connelly, 156 F.3d at 985. Apart
from his possible complicity in the murder—about which the court
made no finding—Stokes had no known prior offenses. In this cir-
cumstance, the district court’s factual finding that Stokes had demon-
strated an unusual propensity to commit future crimes was clearly
erroneous, and its decision to depart upward on that basis was an
abuse of discretion.

   We therefore vacate the sentence and remand for resentencing. On
remand, should the district court determine that an upward departure
under § 4A1.3 is warranted on other grounds, it should comply with
the level-by-level procedure for such departures established by this
court. See United States v. Harrison, 58 F.3d 115, 117-19 (4th Cir.
1995). 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
