203 F.3d 187 (2nd Cir.

2000)

United States of America, Appellee,

v.
Michael Lee Carter, Defendant-Appellant.
Docket No. 99-1132
August Term, 1999

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT
Argued: Dec. 7, 1999
Decided: Feb. 16, 2000

Michael Lee Carter appeals from his sentence imposed by the United
States District Court for the Western District of New York (Michael A.
Telesca, Judge) following his plea of guilty to one count of illegal dealing
in firearms in violation of 18 U.S.C.
922(a)(1)(A).
Affirmed in part, Vacated and Remanded in part.
William G. Clauss, Federal Public Defender, Western District of New
York, Rochester, NY (MaryBeth Covert, of counsel), for DefendantAppellant.
Richard A. Resnick, Assistant United States Attorney, Western District of
New York, Rochester, NY (Denise E. O'Donnell, United States Attorney,
of counsel), for Appellee.
Before: WINTER, Chief Judge, and OAKES and SOTOMAYOR, Circuit
UNITED Judges.
OAKES, Senior Circuit Judge:

Defendant Michael Lee Carter appeals from his sentence of 60 months'

imprisonment imposed by the United States District Court for the Western
District of New York (Michael A. Telesca, Judge) following his plea of guilty

to one count of illegal dealing in firearms in violation of 18 U.S.C. 922(a)(1)

(A). The district court calculated Carter's criminal history category to be III and
departed upward pursuant to U.S. Sentencing Guidelines Manual 5K2.0 (1998)
(hereinafter "U.S.S.G."). On appeal, Carter argues that the district court
misapplied U.S.S.G. 4A1.2(c), which excludes certain minor offenses and those
"similar" to them from a defendant's criminal history. Carter also argues that the
district court failed to provide him with reasonable notice of the court's
intention to depart upward and, in so doing, deprived Carter of his due process
right to a meaningful opportunity to be heard prior to sentencing. Finally, Carter
argues that the grounds upon which the district court based its upward
departure were improper.
2

We agree that the district court used an incorrect legal standard in determining
whether Carter's prior offenses should have been counted. We affirm, however,
the district court's upward departure and remand for resentencing consistent
with this opinion.

BACKGROUND
3

Carter was arrested on February 15, 1998, in Rochester, New York after
transporting thirteen firearms by automobile from Alabama, where he resided.
Eleven of these firearms had been purchased in Alabama and were contained in
their original boxes in the back of Carter's vehicle. Another firearm was seized
from Carter's pocket, and the remaining firearm was seized from a purse
belonging to his wife, who was traveling with him at the time of his arrest.

In a criminal complaint filed on February 14, 1998, Carter was charged with
various firearms violations. On August 5, 1998, Carter waived indictment and
pleaded guilty to a one-count felony superseding information charging that
Carter engaged in the business of dealing in firearms without a license by
willfully shipping and transporting firearms in violation of 18 U.S.C. 922(a)(1)
(A). In Carter's written plea agreement with the Government, he specifically
agreed that the relevant conduct included thirty-nine handguns purchased on
several occasions in Alabama between June 1997 and February 1998.1 The
Government and Carter also agreed that Carter's base level sentence should be
increased by five offense levels based on the number of guns involved.

A violation of 18 U.S.C. 922(a)(1)(A) results in a maximum possible sentence

of a term of imprisonment of five years, a fine of $250,000, or both, and has a
base offense level of twelve. The district court calculated Carter's total offense
level to be 20. This calculation takes into account an agreed-upon incremental
increase pursuant to U.S.S.G. 2K2.1(b)(1) based on the number of guns

involved.2 Carter does not contest the district court's determination of his total
offense level. Carter, however, does challenge the determination of his criminal
history category. The court calculated his criminal history category to be III,
resulting in an imprisonment range of 41 to 51 months.3 See U.S.S.G. Chapter
5, Part A. In arriving at Carter's criminal history category, the district court
counted a New York state harassment conviction sustained by Carter in 1992.
Carter objected to the district court's inclusion of this harassment conviction in
its calculation.
6

The district court departed upward from the imprisonment range based on
Carter's "repeated conduct on separate occasions in knowingly purchasing the
guns for illegal redistribution and sale in Rochester adding to the threat of
increased violence in high crime areas." The district court imposed the
maximum possible statutory sentence of five years' (60 months') imprisonment
and recommended that the sentence be served consecutively to a previously
imposed state sentence.

The district court notified Carter for the first time of its intention to depart
upward on the day of the sentencing hearing. Carter objected, arguing that the
district court had failed to give him sufficient notice of its intention to depart.
The district court proceeded, over Carter's objection, to announce its sentence
including the upward departure based on the repetitive nature of Carter's
conduct. Carter objected again and stated that the repeated purchases were fully
incorporated into the offense conduct. Thereafter, the district court withheld
rendering final imposition of the sentence until after it had entertained written
submissions in opposition to the upward departure. Defense counsel filed a
motion to correct the sentence on February 17, 1999, arguing that the district
court failed to give Carter adequate notice and a meaningful opportunity to be
heard in opposition to the upward departure. Defense counsel also argued that
the departure was substantively improper because the number of guns was
already accounted for in Carter's sentence.

On February 19, 1999, the court held oral argument regarding Carter's motion
to correct the sentence, which included a challenge to an upward departure. The
court subsequently denied Carter's motion for correction of the sentence and
imposed its sentence of February 16, 1999.

DISCUSSION
I. Section 5K2.0 Departure
9

Carter argues that the district court violated his right to due process because it

Carter argues that the district court violated his right to due process because it
failed to give him adequate notice of its intention to grant an upward departure
of nine months pursuant to U.S.S.G. 5K2.0. Carter also argues that the district
court's departure was an impermissible instance of double counting under the
Guidelines. Although we agree with Carter that the notice provided was
inadequate, we find it was cured in this case. Furthermore, the district court
was within its discretion to depart upward based on the repeated and dangerous
nature of Carter's conduct.

10

We review a district court's upward departure for an abuse of discretion. See

United States v. Delmarle, 99 F.3d 80, 84 (2d Cir. 1996). It is established that
Federal Rule of Criminal Procedure 32 requires that a sentencing judge
contemplating an upward departure should give reasonable notice to the
defendant, and inform him of the factors the judge is planning to rely upon and
why these factors warrant a departure. See Burns v. United States, 501 U.S.
129, 138-39 (1991). We have held that "[a]dequate notice and the opportunity
to contest an upward departure . . . are indispensable to sentencing uniformity
and fairness." United States v. Palta, 880 F.2d 636, 640 (2d Cir. 1989); see also
United States v. Kim, 896 F.2d 678, 681 (2d Cir. 1990). Defense counsel must
be given the opportunity to "focus on the technical issues of whether an upward
departure is permissible under the statutory standard, 18 U.S.C. 3553(b) (1988),
whether a departure, if made, will be pursuant to part 4A or part 5K of the
Guidelines, and whether anything in the Guidelines precludes such a
departure." Kim, 896 F.2d at 681 (citation omitted). Resentencing is generally
necessary if a court does not comply with these requirements. See United States
v. Margiotti, 85 F.3d 100, 103 (2d Cir. 1996) (per curiam) (citing United States
v. Axelrod, 48 F.3d 72, 72-73 (2d Cir. 1995) (per curiam)).

11

The district court announced its intention to depart upward from the sentencing
range at the beginning of the sentencing hearing only minutes before the
imposition of sentence. The Government made no motion for an upward
departure, and the Presentence Investigation Report (hereinafter "PSR")
specifically provided that the probation officer had "no information concerning
the offense or the offender which would warrant a departure from the
prescribed sentencing guidelines." The Government argues, however, that
defense counsel was on notice of the grounds for the district court's departure
because the PSR contained a recitation of Carter's criminal conduct. If we
accepted this argument, all defendants would be on notice as to any sua sponte
departure when the crime is described in the PSR. See United States v.
Mangone, 105 F.3d 29, 35 (1st Cir. 1997) (rejecting argument that recitation of
the defendant's criminal conduct in the PSR provides adequate notice). Because
the law requires that defense counsel be forewarned of the specific grounds for
the court's departure so that counsel may prepare arguments in opposition, the

information contained in a traditional PSR is not adequate notice of a departure

under the Guidelines.4 Thus, we find that the district court did not provide
adequate notice of its intention to depart in this case.
12

Despite our finding of inadequate notice, we agree with the Government that
the district court cured any error that it made. After realizing that defense
counsel was entitled to adequate notice before imposition of sentence, the
district court gave defense counsel two opportunities to address the grounds for
upward departure. Before entering judgment, the district court permitted
defense counsel to submit written opposition to the upward departure. The
court also reconvened the sentencing hearing three days later so that defense
counsel could argue orally against the upward departure. There is no indication
that the district court did not give full consideration to defense counsel's
argument. Accordingly, although we strongly advise a district court to provide
notice of its intention to depart upward and to give defense counsel the
opportunity to articulate his or her grounds for opposing the departure before
the sentencing hearing, we find that the inadequate notice provided in this case
was cured.

13

We now turn to the substantive validity of the upward departure. A district

court may depart from the base level of sentencing pursuant to U.S.S.G. 5K2.0
where "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." 18 U.S.C. 3553(b). A district court may not,
however, depart to increase a defendant's punishment on account of a kind of
harm that has already been fully accounted for by a part of the Guideline used
to determine the base level for sentencing. See United States v. Coe, 891 F.2d
405, 410 (2d Cir. 1989). Carter argues that the factor relied upon by the district
court, namely, the repeated purchases and interstate transportation of guns and
the added dangerousness to the Rochester community as a result of selling
those guns in high crime areas, were already taken into consideration by the
Guidelines in determining the base level sentence for his conviction under 18
U.S.C. 922(a)(1). Accordingly, we must examine the factors considered by the
Sentencing Commission in formulating the sentence for an offense under 18
U.S.C. 922(a)(1).

14

A conviction under 18 U.S.C. 922(a) ordinarily contemplates more than one

isolated gun sale. See United States v. Carter, 801 F.2d 78, 81 (2d Cir. 1986).
Title 18 U.S.C. 922(a)(1)(A) criminalizes being "engaged in the business" of
selling guns. "Engage[d] in the business" is defined as "a person who devotes
time, attention, and labor to dealing in firearms as a regular course of trade or
business with the principal objective of livelihood and profit." 18 U.S.C. 921(a)

(21)(C). Hence, the Sentencing Guidelines, when fashioning the appropriate

sentence, took into account that a conviction under this statute contemplates
more than the sale of one gun.
15

Furthermore, the base level sentence applied to Carter in this case specifically
considers the number of firearms involved. U.S.S.G. 2K2.1 applies to a
conviction under 18 U.S.C. 922(a)(1). Pursuant to this provision, an offender's
offense level is increased depending on the number of guns involved. See
U.S.S.G. 2K2.1(b)(1). In his plea agreement with the Government, Carter
agreed to a five-offense level increase based on the fact that his conduct
involved more than 24 firearms. Therefore, reliance on this factor -- that Carter
sold a total of 39 firearms in Rochester -- is "not permissible because the
Guidelines provide a precise method for calculating the incremental
punishment appropriate" for the number of guns. Coe, 891 F.2d at 410.

16

In departing upward from the base level, the district court did not, however, rely
solely on the number of firearms involved, a factor already counted in
calculating Carter's base offense level. The district court explicitly noted that it
was the repeated nature of Carter's conduct that warranted the departure.
Although the Sentencing Guidelines punish incrementally the number of
firearms that a gun runner introduces into a community, it does not differentiate
between an offender who engages in a single sale or a number of sales.
Although the same number of guns ultimately enter a neighborhood regardless
of whether they are brought in by a single or multiple trips, it is within a district
court's discretion, when imposing its sentence, to consider the dangerousness
apparent in a defendant who has acted illegally more than once. See United
States v. Medina-Gutierrez, 980 F.2d 980, 984 (5th Cir. 1992).

17

Therefore, because the number of sales in which a defendant engaged may be a

permissible basis for an upward departure, we find that the district court did not
abuse its discretion in departing upward here. See United States v. Delmarle, 99
F.3d 80, 84 (2d Cir. 1996) ("A district court's decision to depart from the
Guidelines . . . will not most cases be due substantial deference, for it embodies
the traditional exercise of discretion by a sentencing judge.") The district court
found that Carter systematically purchased firearms approximately every two
months for the purpose of selling them in Rochester, which he specifically
targeted because of its high crime rate and high demand for guns that he could
exploit for greater profit. Moreover, each time that Carter engaged in such
transactions, he knew or had reason to believe they would be used for illegal
purposes and foreseeably lead to violence in a community that included his
neighbors, friends and family. Under these circumstances, the district court did
not abuse its discretion in departing upward from the guideline range.

II. Criminal History Category

18

We affirm the district court's upward departure. We find, however, that the
district court erred in its application of U.S.S.G. 4A1.2(c) and that, under a
proper reading, his past conviction for harassment should not be counted in
calculating his criminal history score. We review a district court's interpretation
and application of the United States Sentencing Guidelines de novo. See United
States v. Zagari, 111 F.3d 307, 323 (2d Cir. 1997).

19

Chapter 4, Part A of the Sentencing Guidelines sets out the procedure for
calculating a defendant's criminal history score. An assessment of criminal
history is made because Congress has adopted the view that "[a] defendant with
a record of prior criminal behavior is more culpable than a first offender and
thus deserving of greater punishment." U.S.S.G., Chapter 4, Part A,
Introductory Commentary (1998). Not all prior convictions, however, are
properly included in a defendant's criminal history score and U.S.S.G. 4A1.2
explains which prior sentences should be excluded. Specifically, 4A1.2(c)
provides that all misdemeanor convictions are counted when calculating a
defendant's criminal history category unless they fall within or are similar to the
list of offenses specifically identified in that section.5

20

Harassment is not identified as an exempted offense in 4A1.2(c). The district

court also determined that harassment was not "similar" to the offenses listed in
that section and therefore concluded that Carter's conviction for harassment
should be counted in the criminal history calculation. When conducting its
similarity analysis, the district court relied on United States v. Elmore, 108
F.3d. 23 (3d Cir. 1997). In that case, the United States Court of Appeals for the
Third Circuit held that a harassment conviction is not similar to a disorderly
conduct conviction listed in 4A1.2(c)(1) because harassment is a crime against
a person rather than the public. See id. at 26. The district court also considered
and rejected Carter's argument that harassment is less serious than the crimes
listed in 4A1.2(c). Otherwise, the district court did not elaborate on what
factors it considered in conducting its similarity analysis.

21

At the time that Carter was sentenced, this Court had not yet explicitly
addressed how district courts should determine whether a prior offense is
"similar" to the listed offenses in 4A1.2(c). After the district court sentenced
Carter, but before we heard appellate argument, this Court decided United
States v. Martinez-Santos, 184 F.3d 196 (2d Cir. 1999). Although this decision
was not available to Judge Telesca at the time of sentencing, it nonetheless
applies to our direct review of the sentence. See Griffith v. Kentucky, 479 U.S.
314, 322-23 (1987). In Martinez, we adopted a multi-factor test for determining

whether crimes are "similar" to those listed in 4A1.2(c). See 184 F.3d at 20406. This test requires that the district court
22

take a common sense approach which relies on all possible factors of similarity,
including a comparison of punishments imposed for the listed and unlisted
offenses, the perceived seriousness of the offense as indicated by the level of
punishment, the elements of the offense, the level of culpability involved, and
the degree to which the commission of the offense indicates a likelihood of
recurring criminal conduct.

23

Id. at 200 (citations omitted).

24

In the instant case, the record does not demonstrate that the district court
applied such a multi-factor test. Indeed, the United States Court of Appeals for
the Third Circuit in Elmore, upon which the district court relied, explicitly
declined to apply a multi-factor analysis. See Elmore, 108 F.3d at 27.
Accordingly, we remand the case so that the district court can determine
whether harassment is "similar" to any of the crimes listed in 4A1.2(c) under
the multi-factor test articulated in Martinez.

CONCLUSION
25

We remand so that the district court may determine whether Carter's 1992
harassment conviction is properly included in the calculation of his criminal
history category pursuant to the multi-factor test announced in Martinez. We
affirm the sentence in all other respects.

Notes:
1

The thirty-nine handguns included eleven in original boxes found in Carter's

vehicle at the time of his arrest and twenty-eight others Carter agreed he had
sold in Alabama at various prior times.

This calculation also included a two-level upward adjustment pursuant to

U.S.S.G. 2K2.1(b)(4) because Carter altered the serial number on several guns;
a four-level upward departure pursuant to U.S.S.G. 2K2.1(b)(5) because Carter
transferred the guns with knowledge they would be used in connection with a
felony; and a three-level downward adjustment pursuant to U.S.S.G. 3E1.1(a)
and (b) for Carter's acceptance of responsibility.

The district court's determination was based on the probation department's

calculation contained in the Presentence Investigation Report. Carter objected

to the criminal history category calculation contained in the report.
4

We are not addressing here a situation in which the PSR identified specific
grounds that might constitute the basis for an upward departure.

Offenses listed in subparagraph (1) of U.S.S.G. 4A1.2(c) will be counted,

however, if they meet additional requirements not relevant here.