U.S. v. Hurlich, No. 01-4068.

• Decision Date: 21 June 2002
• Docket Number: No. 01-4068.
• Citation: 293 F.3d 1223
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Quentin HURLICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

293 F.3d 1223

UNITED STATES of America, Plaintiff-Appellee, v. Quentin HURLICH, Defendant-Appellant.

No. 01-4068.

United States Court of Appeals, Tenth Circuit.

June 21, 2002.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^* Julie George, Salt Lake City, UT, for Appellant.

Paul M. Warner, United States Attorney, and Wayne T. Dance, Assistant United States Attorney, Chief, Appellate Section, Office of the United States Attorney, Salt Lake City, UT, for Appellee.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and RUSSELL^**, District Judge.

TACHA, Chief Circuit Judge.

Defendant Quentin Hurlich pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The district court granted a four-level enhancement in the offense level and departed upward substantially from the sentencing guidelines, sentencing him to 10 years' imprisonment to run consecutively to his state sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(3) and REMAND for resentencing.

I. Background

On June 3, 1999, Hurlich entered Zions Bank in Murray, Utah and attempted to cash a forged check. He had been on a constant methamphetamine high for over two weeks and wanted money to buy more drugs. The bank teller refused to cash the check and called a police officer. The officer arrived shortly thereafter and approached Hurlich as he was leaving the bank. The defendant pulled a nine millimeter semi-automatic pistol from his waistband, and shot the officer three times. The officer returned fire, and Hurlich fled the scene. Hurlich was later apprehended, and his gun was recovered.

Hurlich had been on parole for a prior charge of attempted possession of a firearm. The state revoked his parole, and he will be eligible for parole on that charge on January 12, 2027. For the current conduct, Hurlich pleaded guilty in state court to attempted aggravated murder, forgery, and possession of methamphetamine. For these three charges, he received prison sentences of five years to life, zero to five years, and zero to five years respectively. These three sentences were imposed as concurrent with each other, but consecutive to all prior sentences.

In federal court, Hurlich pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), which is punishable by a maximum of 10 years' imprisonment under 18 U.S.C. § 924(a)(2). In return, the government agreed not to use the shooting as relevant conduct for sentencing. At the time of his guilty plea, the district court did not inform Hurlich of the possibility of a consecutive sentence.

After Hurlich entered his plea, a probation officer prepared a presentencing report recommending a four-level upward departure for possession of a firearm in connection with another felony offense. U.S. Sentencing Guidelines § 2K2.1(b)(5). The report stated that "[d]uring the investigation of the shooting, acquaintances of the defendant reported having knowledge of the defendant's possession of the gun at least three days prior to the shooting, specifically, on May 31, 1999, and to his possession of the gun during the transaction of stolen checks." In addition, the United States moved for an upward departure based on a substantial under-representation in Hurlich's criminal history and a strong probability that he would continue to reoffend. U.S.S.G. § 4A1.3.

At sentencing, the court granted the probation officer's recommended four-level upward departure for possession of a firearm in connection with another felony offense. After the four-level enhancement and a three-level reduction for acceptance of responsibility, the offense level was 15 and the criminal history category VI, leading to a Guidelines range of 41-51 months. The court departed upward from this range on the basis of an under-representation in criminal history pursuant to § 4A1.3, and imposed the statutory maximum sentence of 120 months, to run consecutively to his state sentences.

II. Discussion

Hurlich now appeals: (a) the four-level enhancement for possession of a firearm; (b) the upward departure; (c) the consecutive sentencing; and (d) the court's failure to notify him at the plea colloquy of the possibility of a consecutive sentence. When reviewing an application of the Sentencing Guidelines, we review the district court's factual findings for clear error and questions of law de novo. United States v. Farnsworth, 92 F.3d 1001, 1009 (10th Cir. 1996).

A. Enhancement for Possession of Firearm in Connection with Another Felony

Hurlich challenges the court's four-level enhancement for possession of a firearm in connection with another felony offense or with the "knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." U.S.S.G. § 2K2.1(b)(5). He argues that the United States failed to prove the factual basis for the enhancement by a preponderance of the evidence, as the only factual basis for the departure was a vague hearsay statement in the presentence report that "acquaintances" had "knowledge" that he possessed the gun during a transaction involving stolen checks. The United States concedes that the record is inadequate to support the enhancement. A party's concession, however, cannot compel us to reverse a district court's decision. United States v. Furman, 112 F.3d 435, 438 n. 2 (10th Cir. 1997). We therefore turn to the merits of the claim.

To support the enhancement, a preponderance of the evidence must show that Hurlich possessed a firearm in connection with another felony. Farnsworth, 92 F.3d at 1009. "Conclusions in the presentence report unsupported by facts do not constitute a preponderance of the evidence." United States v. Gomez-Arrellano, 5 F.3d 464, 467 (10th Cir.1993). We find that the vague, unsworn statement by an unidentified witness in the presentence report was insufficient to constitute a preponderance of the evidence. Cf. United States v. Fennell, 65 F.3d 812, 814 (10th Cir.1995) ("Unsworn out-of-court statements made by an unobserved witness and unsupported by other evidence form an insufficient predicate for a sentence enhancement under § 2K2.1(b)(5)."); United States v. Pantelakis, 58 F.3d 567, 568 (10th Cir.1995) (holding that "one ambiguous statement in the pre-sentence report" was insufficient to support an enhancement under § 2K2.1(b)(5)). We therefore remand to the district court for resentencing.

B. Departure Based on Under Representation of Criminal History

Hurlich also challenges the court's upward departure from the Guidelines range of 41-51 months to 120 months based on an under-representation of criminal history. U.S.S.G. § 4A1.3.

The district court explained the upward departure as follows:

The Court has seriously considered this matter, has reflected upon the presentence report. The criminal history of Mr. Hurlich is extensive. And I do not believe that the criminal history category currently available to Mr. Hurlich adequately reflects the seriousness of the crimes, not only that for which he is currently serving time in state custody, but also the long history as a juvenile and as an adult. I believe that this clearly is outside the heartland of cases and will therefore grant the motion for upward departure in order to accurately reflect the seriousnes [sic] of the offense and the offenses[,] to assure the need for a just punishment of Mr. Hurlich, to assure a proper deterrence from additional criminal activity, and for the protection of the public in the future.

To determine whether the district court abused its discretion in departing from the Guidelines, we must consider (1) whether the factual reasons for departure are permissible departure factors, (2) whether the reasons for departure remove the defendant from the heartland of cases under the applicable guideline, (3) whether the record supports the facts underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir. 1997). Hurlich does not challenge the permissibility of or factual basis for the departure factors on which the district court relied. He argues, however, that his prior crimes and lengthy criminal history do not remove him from the heartland of cases, because the state sentencing courts already took these factors into account, and that the degree of departure was unreasonable.¹

We will only disturb a finding that the defendant was outside the heartland of cases if the district court abused its discretion. Collins, 122 F.3d at 1306. We find no abuse of discretion here. As the presentencing report detailed, Hurlich had a long history of violations, including, among others, attempted burglary, possession of a controlled substance, car theft, assault, and attempted possession of a firearm. The record reveals a clear pattern of recidivism and a wide range of violations. Given this evidence and our deference to the district court on this question, we cannot conclude that an upward departure was an abuse of discretion.

An upward departure must also be reasonable in degree, however. Therefore, in departing from the applicable Guidelines range, a sentencing court must "specifically articulate reasons for the degree of departure," using "any reasonable methodology hitched to the sentencing Guidelines," including "extrapolation from an analogy to the Guidelines." Collins, 122 F.3d at 1309 (citations and internal quotation marks omitted). Moreover, the Guidelines instruct:

Where the court determines that the extent and nature of the defendant's criminal history, taken together, are sufficient to warrant an upward departure from Criminal History Category VI, the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case.

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