Lead Opinion
Rоnald Henderson pleaded guilty to being a felon in possession of a firearm. Henderson has prior convictions for murder and child molestation. At Henderson’s sentencing, the district cоurt found that Henderson did not qualify as a career offender. The court made the preliminary finding that Henderson’s base offense level was 12 and with acceptance of responsibility his adjusted offense level was 10; the court also found Henderson had a category IV criminal history.
The district court stated that Henderson’s criminal history category under-represеnted the seriousness of his past actions. However, instead of raising Henderson’s criminal history category, the court raised the offense level to 16. This gave Henderson a guideline range of 33 to 41 months; the court sentenced Henderson to 37 months.
I
Departure from the Sentencing Guidelines is reviewed de novo. Williams v. United States, — U.S. -, -,
We review guideline departures under a three part test. United States v. Lira-Barraza,
The district court must explain the reasoning for both the direction and degree of the departure in sufficiently specific language to allоw appellate review. Id. We “do not search the record for permissible reasons for departure; instead, we analyze the reasons actually given by the district court.” United States v. Montenegro-Rojo,
II
The district court must have legal grounds for departure from the guidelines. U.S.S.G. § 4A1.3 permits a sentencing court to consider upward departure when a defendant’s criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct. “The guidelines anticipate that departure will be rare. A factor already calculated into a sentence under the guidelines may not be a proper basis for departure.” United States v. Hernandez-Vasquez,
A. Violence of Prior Criminal Conduct
Henderson claims that the sentencing court departed from the guidelines solely duе to the nature of Henderson’s prior convictions. Although Henderson has only two prior convictions, they are both extremely violent and serious. Henderson argues that this reason fоr departure is invalid. We agree.
The Seventh Circuit recently rejected an upward departure based on the nature of a defendant’s prior criminal conduct. In United States v. Morrison,
“[A]n upward departure may be warranted when the defendant has committed crimes or conduct that the criminal history calculation instructions ... fail specifically to consider.” Morrison,
The upward departure for the nature of Henderson’s crimes does not fit into the category outlined аbove. The district court did not believe that the Sentencing Commission overlooked anything in awarding criminal history points; the district court believed that the Sentencing Commission did not assign enough рoints for these particular offenses. That belief may be morally correct. However, the Sentencing Commission chose to award defendants three criminal history points for every conviction leading to a sentence of greater than one year, regardless of the nature of the underlying offense conduct. See Morrison,
Henderson’s convictions were counted in the calculation of his criminal history; they were already a factor adequately considered in the guidelines. While we understand the motivation for the district court’s departure, the nature of Henderson’s past crimes cannot serve as a proper basis for upward departure.
B. Timing
The government claims that the aggravating circumstance not taken adequately into account by the guidelines is one of timing. In this circuit, the crime of being a felon in possession of a firearm was a crime of violence prior to November 1, 1989. United States v. Sahakian,
The 1989 and 1991 versions of §§ 4B1.1 (“Career Offender”) and 4B1.2 (“Definitions of Terms Used in Section 4B1.1”) are identical. The difference in the two versions comes from the 1991 amendment of Application Note 2 to § 4B1.2. The application note explicitly states that а felon in possession of a firearm is not a crime of violence. However, based on the actual guideline language, the Ninth Circuit read this exclusion into the 1989 version of the guidelines. Sakakian
A district court applies the version of guidelines in effect on date of sentencing except where amendments create an ex post facto problem. When an ex post facto problem does appear, the court sentences the dеfendant under the version of the guidelines in effect at the time of the offense — in its entirety. United States v. Warren,
Ill
We find the district court’s reasons for the upward departure inadequate. We need not consider Henderson’s challenge to the manner in which the district court departеd. We VACATE Henderson’s sentence and REMAND for resentencing.
Notes
. A criminal history category of IV with an adjusted offense level of 10 gives a range of 15-21 months. A criminal history category of VI (the highest) with an аdjusted offense level of 10 gives a sentencing range of 24-30 months.
Concurrence Opinion
concurring:
I reluctantly agree with this opinion. Under the applicable law and the sentencing guidelines in effect at the time Hendеrson committed the offense of being a felon in possession of a firearm, I agree that we have no alternative but to reverse the upward departure regardless of my symрathy with the trial judge’s effort to reach a result somewhat more in the public’s interest. Nevertheless, I am shocked at the result which will release this apparently vicious and dangerous person on society in the very near future.
The record indicates that Henderson committed a particularly atrocious murder in which he mutilated a woman with a beer can opener. A second woman identified Henderson as having attacked her, inflicting wounds on her body and forcing some type of tool into her vagina. Upon being released on parole, he molested a child of tender age. After his conviction and sentence for that crime, he was again quickly paroled only to be arrested on the current charge of purchasing two handguns which he alleged were for the purpose of “shooting varmints.” It does not take an expert on recidivism to conclude the chances are high that this individual will commit another violent crime.
We have been informed by the Department of Justice that the California Department of Corrections has discharged Henderson from all forms of California supervision effective April 28,1992, in order “to allow federal authorities exclusive jurisdiction.” We have no further explanation of the California Department of Corrections’ action in this case, and of course it is not a party to this appeal. Based on our limited information, however, Henderson’s release on society is the result of bureaucratic and judicial decisions that the public will be unable to understand and which reflect adversely on our entire judicial system.
I write this concurrence with a sense of frustration and in the remote hope that it may prevent the similar release of individuals guilty of the type of conduct here involved.
Concurrence Opinion
concurring in the result:
I concur in the result and join in Judge Boochever’s concurring opinion.