                   UNITED STATES COURT OF APPEALS
                        for the Fifth Circuit

                _____________________________________

                             No. 92-2094
                _____________________________________

                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                VERSUS

         OSCAR MEDINA-GUTIERREZ and FULTON STEVENS, JR.,

                                              Defendants-Appellants.

     ______________________________________________________

            Appeals from the United States District Court
                  for the Southern District of Texas

     ______________________________________________________
                       (December 23, 1992)
Before KING, JOHNSON, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

     Defendants were convicted for firearms offenses, and appeal

their sentences.    Finding no error, we affirm defendant Stevens's

sentence.    Because the district court improperly departed upward

from the sentencing guidelines when sentencing Gutierrez, however,

we vacate his sentence and remand for resentencing.

BACKGROUND

     In 1990 and 1991 Appellant Stevens repeatedly purchased guns

from Texas pawn shops, intending to resell them to a man named

Tony, a New York resident who then sold the guns in New York.    Each

time he purchased these guns, Stevens was required to complete

Federal Bureau of Alcohol, Tobacco and Firearms (ATF) forms.       On

these forms, he falsely asserted that he was not a convicted felon,

and that he was the true purchaser of the weapons.        In reality,
Stevens had been convicted of three burglaries and the Louisiana

offense of aggravated crime against nature.

      In June 1991, Stevens met Appellant Gutierrez who claimed to

be Tony's friend.    Gutierrez accompanied Stevens to pawn shops to

choose the weapons Stevens would purchase for Tony.          Stevens

purchased 24 guns chosen by Gutierrez, 20 of which were semi-

automatic handguns.

      ATF agents arrested Stevens and Gutierrez in July 1991.     Both

were indicted for knowingly making false statements in connection

with the gun purchases in violation of 18 U.S.C. § 922(a)(6), and

for aiding and abetting in violation of 18 U.S.C. §2.1   Stevens was

also indicted for possession of a firearm by a convicted felon in




1
    18 U.S.C. § 922(a)(6) states in part:

      (a)   It shall be unlawful --

            (6) for any person in connection with the
            acquisition of any firearm or ammunition from
            a licensed . . . dealer . . . to make any
            false or fictitious oral or written statement
            . . . intended or likely to deceive . . .
            dealer . . . with respect to any fact material
            to the lawfulness of the sale or other
            disposition such firearm or ammunition under
            the provisions of this chapter.

18 U.S.C. § 2 states:

      (a) Whoever commits an offense against the United States
      or aides, abets, counsels, commands, induces, or procures
      its commission, is punishable as a principle.

      (b) Whoever willfully causes an act to be done which if
      directly performed by him or another would be an offense
      against the United States, is punishable as a principle.


                                  2
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).2                  Both men

pleaded guilty to the crimes charged.          In sentencing Stevens, the

court applied the Armed Career Criminal Provision, § 4B1.4, of the

sentencing     guidelines,      and    sentenced   him    to   188     months

imprisonment, supervised release of five years, and a $10,000 fine.

In    sentencing   Gutierrez,    the   court   departed   upward   from    the

guidelines, and sentenced him to 30 months imprisonment, supervised

released of three years, and a $25,000 fine.            Neither Stevens nor

Gutierrez objected during sentencing, but both now complain on

appeal, asking this Court to reverse and remand for resentencing.

                                  ANALYSIS

       Because Appellants failed to object during sentencing, we

review their sentences for plain error.         United States v. Navejar,

2
     18 U.S.C. § 922(g)(1) states:

       (g)   It shall be unlawful for any person --
             (1) who is under indictment for, or who has
             been convicted in any court of, a crime
             punishable   by  imprisonment   for  a term
             exceeding one year;

       to ship or transport any firearm            or   ammunition    in
       interstate or foreign commerce.

18 U.S.C. § 924(e)(1) states:

       (e)(1) In the case of a person who violates § 922(g) of
       this title and has three previous convictions by any
       court referred to in § 922(g)(1) of this title for a
       violent felony or a serious drug offense, or both,
       committed on occasions different from one another, such
       person shall be fined not more than $25,000 and
       imprisoned not less than 15 years, and, notwithstanding
       any other provision of law, the court shall not suspend
       the sentence of or grant a probationary sentence to, such
       person with respect to the conviction under § 922(g), and
       such person shall not be eligible for parole with respect
       to the sentence imposed under this subsection.

                                       3
963 F.2d 732, 734 (5th Cir. 1992).       "[Plain error] is a mistake so

fundamental that it constitutes a 'miscarriage of justice.'"              Id.

(quoting United States v. Lopez, 923 F.2d 47 (5th Cir. 1991), cert.

denied, 111 S.Ct. 2032 (1991)).

                          STEVENS'S SENTENCE

      The following path led the court to § 4B1.4 of the sentencing

guidelines, under which Stevens was sentenced.             Stevens's three

prior burglary convictions and his aggravated crime against nature

conviction,   when   combined   with   his     guilty   plea   for   shipping

firearms   interstate   in   violation    of    18   U.S.C.    §   922(g)(1),

activated 18 U.S.C. § 924(e).     Section 924(e) provides:

           In the case of a person who violates § 922(g)
           of   this   title  and   has  three   previous
           convictions by any court referred to in §
           922(g)(1) of this title for a violent felony .
           . . committed on occasions different from one
           another, such person shall be fined not more
           than $25,000 and imprisoned not less than 15
           years . . .

In turn, § 924(e) activated the Armed Career Criminal provision, §

4B1.4, of the sentencing guidelines,3 and the court sentenced

Stevens accordingly.

      Stevens argues on appeal that the court erred in sentencing

him and never should have arrived at § 4B1.4.             Specifically, he

contends that he does not have three violent felony convictions so

as to activate § 924(e), and consequently, § 4B1.4.            In support of


3
    Section 4B1.4(a) provides:

      (a) A defendant who is subject to an enhanced sentence
      under the provisions of 18 U.S.C. § 924(e) is an armed
      career criminal.

                                   4
his contention, Stevens argues that his three burglary convictions

should be treated as one violent felony for sentencing purposes.

Stevens relies upon the commentary to § 4A1.2 stating that cases

are considered "related" if they are part of a common plan, or are

consolidated for trial or sentencing.                   U.S.S.G. § 4A1.2, comment

(n.3) (1990).        He argues that because his three burglaries were

committed within weeks of one another as part of a common plan, and

he   was   sentenced     for   all    three      on     the    same     day,        the   three

convictions are therefore "related" and should be treated as one

for sentencing purposes.

      Stevens's      reliance    on     §       4A1.2    commentary          is      entirely

misplaced.      Stevens was sentenced under § 4B1.4, not § 4A1.2.

Furthermore, the commentary to § 4B1.4 specifically states that

"the time periods for the counting of prior sentences under § 4A1.2

are not "applicable to the determination of whether a defendant is

subject    to   an   enhanced    sentence         under       18    U.S.C.      §    924(e)."

U.S.S.G.    §   4B1.4,    comment     (n.1)       (1990).           Finally,        §     924(e)

explicitly applies to defendants who "committed [three violent

felonies] on occasions different from one another."                            18 U.S.C. §

924(e) (emphasis added).             Thus, what matters under § 924(e) is

whether    three     violent    felonies         were     committed        on       different

occasions; whether they are considered "related cases" under §

4A1.2 is irrelevant.

      Stevens      committed    three       burglaries             on   three       different

occasions.      Therefore, his sentence was properly enhanced under §




                                            5
924(e), and he was properly sentenced under § 4B1.4.4

                       GUTIERREZ'S SENTENCE

      When sentencing Gutierrez, the court found a total offense

level of twelve and a criminal history category of one, with a

corresponding sentencing guideline range of ten to sixteen months.

The court departed upward from this range for three reasons, and

sentenced Gutierrez to 30 months.

      First, the court looked to sentencing guidelines § 5K2.6,5

permitting    upward   departure       if   a   weapon   or   dangerous

instrumentality was used or possessed during commission of the

crime.    We hold that § 5K2.6 is an improper basis for upward

departure in this case.

      The transportation of firearms in interstate commerce is,

technically, a crime in which weapons are used, and therefore seems

to warrant a § 5K2.6 upward departure.           Practically speaking,

however, this section must refer to crimes that may be committed


4
   Stevens also argues that his aggravated crime against nature
conviction should not be counted as one of the three violent
felonies needed to activate enhanced sentencing under § 924(e) and
§ 4B1.4. Because we find that Stevens's three burglary convictions
suffice as the three violent felonies needed, we decline to address
whether an aggravated crime against nature is a violent felony for
§ 924(e) and § 4B1.4 purposes.
5
    Section 5K2.6 of the sentencing guidelines provides:

      If a weapon or dangerous instrumentality was used or
      possessed in the commission of the offense the court may
      increase the sentence above the authorized guideline
      range.   The extent of the increase ordinarily should
      depend on the dangerousness of the weapon, the manner in
      which it was used, and the extent to which its use
      endangered others.    The discharge of a firearm might
      warrant a substantial sentence increase.

                                   6
with or without the use of a weapon, otherwise, every firearms

sentence would require upward departure. Allowing upward departure

for   every     firearms   offense      seems    contrary     to   the    Sentencing

Commission's      intention      that       courts   rarely      depart    from    the

guidelines.       See, U.S.S.G. at 1.6 (1990).              We therefore find §

5K2.6    an    incorrect   basis      for    departing    upward    in    sentencing

Gutierrez and constitutes plain error.

      Second, the court determined that the sentencing guidelines

did not consider Gutierrez's frequent purchases of weapons,6 and

that the repeated nature of his conduct warranted upward departure.

We find no error in this basis for departure.

      Gutierrez argues that upward departure on this basis was

improper according         to   the   sentencing     guidelines      introduction.

Gutierrez has misinterpreted the introduction, however, to state

that sentencing guidelines provide sentencing based upon the total

number    of    weapons     involved,        regardless     of     the    number   of

transactions that took place to acquire the weapons.7 In fact, the

introduction expresses the Sentencing Commission's concern that

prosecutorial discretion over a defendant's indictment might carry

6
  Section 5K2.0 allows for departure from the applicable guideline
range "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 sentencing commission in
formulating the guidelines that such result in a sentence different
from that described.'"
7
  "[T]he guidelines treat a three count indictment, each count of
which charges sale of 100 grams of heroin or theft of $10,000 the
same as a single count indictment charging sale of 300 grams of
heroin or $30,000."    U.S.S.G. Ch.1, Pt.A, Intro. comment 4(a)
(1990).


                                            7
over into his sentencing. In other words, the Commission sought to

control    count   manipulation       that   arises     when,     for   example,      a

prosecutor charges one defendant with three counts of selling one

gram of heroin, but later charges another defendant who committed

the same offense with one count of selling three grams of heroin.

In the commission's eyes, both defendants should receive equal

sentences.

     In this case, we are not concerned with potential manipulation

of repeated counts against Appellant.               Rather, we are faced with

repeated    conduct   by    Appellant,       and    a   sentencing      court      that

concluded that the dangerous nature of this conduct warranted an

upward departure.          The court believed, and we agree, that a

criminal    defendant    who    has   repeatedly        engaged    in   an   illegal

activity evidences a dangerousness not apparent in a defendant who

has acted illegally only once. The sentencing guidelines allow for

upward departure in atypical cases,8 and we agree with the district

court that this is such a case.

     As previously stated, we review the district court's departure

for plain error.      We do not find that the court plainly erred by

using the repeated nature of Appellant's conduct as a basis for

departing upward in sentencing.

     The    court's     third   basis       for    upward   departure        was    its

determination that the twenty semi-automatic weapons purchased were

military-type weapons, thereby warranting an upward departure under



8
 U.S.S.G. Ch.1, Pt.A, Intro. comment 4(b) (1990).

                                        8
Application Note 2 of § 2K2.2.9         We find no plain error in this

basis for departure.

      In reaching its conclusion, the district court considered and

rejected the reasoning in United States v. Schular, 907 F.2d 294

(2nd Cir. 1990).      In that case, the Second Circuit held:

            Congress, in enacting various firearm control
            laws (and the Sentencing Commission in
            defining their applicable offense levels),
            divided firearms into two relevant classes,
            machine guns and all other firearms. . . .
            Even   upon  reconsideration   in   the   1989
            amendment to the Sentencing Guidelines, the
            Sentencing Commission adhered to the statutory
            classifications and did not specifically
            distinguish semi-automatic firearms.

Schular, 907 F.2d at 297 (citations omitted).

      The Second Circuit went on to hold that semi-automatic weapons

did   not   warrant   upward   departure   because   the   only   firearms

warranting such departure under § 2K2.2 Application Note 2 were

those listed by the Commission as examples in the note:           machine

guns, automatic weapons, and assault rifles.           In rejecting the

Second Circuit's reasoning, the district court determined that the

military-type weapons listed in the application note were only a

list of examples; a list that was not exclusive.           The court then

concluded that the twenty semi-automatic weapons were military-type

weapons because the military has issued such weapons, specifically

the Colt 45, and 9 MM Berreta.      We decline to hold that the court

plainly erred in reaching this conclusion.

9
   Application Note 2 of § 2K2.2 states in part that "[a] upward
departure especially may be warranted in the case of large numbers
of military type weapons (e.g., machine guns, automatic weapons,
assault rifles." U.S.S.G. § 2K2.2, comment (n.2) (1990).

                                    9
                           CONCLUSION

     For the foregoing reasons, Stevens's sentence is AFFIRMED.

Gutierrez's sentence, however, is VACATED and the case is REMANDED

for resentencing.




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