U.S. v. Schmude

• Decision Date: 09 April 1990
• Docket Number: No. 89-1478,89-1478
• Citation: 901 F.2d 555
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin E. SCHMUDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 555

901 F.2d 555

2 Fed.Sent.R. 273

UNITED STATES of America, Plaintiff-Appellee, v. Kevin E. SCHMUDE, Defendant-Appellant.

No. 89-1478.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 1989.

Decided April 9, 1990.

R. Jeffrey Wagner and Susan Knepel, Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Marna M. Tess-Mattner, Jeffrey A. Kaufman, Gimbel, Reilly, Guerin & Brown, Milwaukee, Wis., for defendant-appellant.

Before CUDAHY, FLAUM, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Kevin Schmude pleaded guilty to one count of dealing in firearms without a license, in violation of 18 U.S.C. Sec. 922(a)(1), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). Prior to sentencing pursuant to the United States Sentencing Commission Guidelines (the "Guidelines"), the federal probation officer assigned to Schmude's case recommended a total offense level of nine and determined that Schmude's Criminal History Category was VI. Under those calculations, the Guidelines sentencing range was 21 to 27 months. At Schmude's sentencing hearing, the district judge accepted those calculations as correct. Nonetheless, the judge concluded that an upward departure from the Guidelines was warranted because Schmude's Criminal History Category underrepresented Schmude's criminal history and the likelihood he would commit further crimes. On that basis, the judge sentenced Schmude to 60 months in prison on each count, both to run concurrently with each other and with a state sentence Schmude is presently serving in Wisconsin.

On appeal, Schmude objects to the district court's computation of his total offense level and the court's decision to depart upward from the Guidelines sentencing range. For the reasons discussed below, we affirm in part, reverse in part, and remand for resentencing.

Computation of the Offense Level

Schmude contests only one computation on appeal. He contends the district judge erred in refusing to reduce his total offense level from nine to eight for being a convicted felon in possession of a firearm because the judge incorrectly applied Guideline Sec. 2K2.1(c)(1). That Guideline states that a court should apply the guideline for possession of a firearm by a convicted felon, except where "the defendant used the firearm in committing or attempting another offense...." In such cases, the court should "apply the guideline in respect to such other offense, or Sec. 2X1.1 (Attempt or Conspiracy) if the resulting offense level is higher than that [for possession of a firearm by a convicted felon]."

Possession of a firearm by a convicted felon carries a base offense level of nine. Guidelines Sec. 2K2.1(a). Unlawful dealing in firearms, an offense for which Schmude used a firearm, carries a base offense level of six. Guidelines Sec. 2K2.3(a)(2). This was increased two levels to eight pursuant to Guideline Sec. 2K2.3(b)(2)(A) because Schmude believed that one undercover agent he sold a gun to was a convicted felon. Schmude contends that under Sec. 2K2.1(c)(1), the district judge had to either (1) apply the Guideline for unlawful dealing in firearms, which carries an offense level of eight; or (2) apply the Guideline for attempt or conspiracy to unlawfully deal in firearms, but only if the offense level for attempt or conspiracy was higher than the offense level of nine for possession of a firearm by a convicted felon (which in this case it is not). In other words, Schmude contends that under Sec. 2K2.1(c)(1), the district judge should have applied the Guideline for dealing in firearms without a license instead of the Guideline for possession of a firearm by a convicted felon. We disagree.

The plain language of Sec. 2K2.1(c)(1) indicates that a court should apply the Guideline for possession of a firearm by a convicted felon unless the defendant uses the firearm in committing another offense and the offense level for the other offense is higher than the offense level for mere possession of the firearm. Here, the offense level for unlawful dealing in firearms is not higher than the offense level for possession of a firearm by a convicted felon. Thus, the district judge correctly assigned Schmude an offense level of nine for being a felon in possession of a firearm.

Clearly, Guideline Sec. 2K2.1(c)(1) was designed to provide an enhancement for conduct committed with a firearm if that conduct has a greater offense level than that for mere possession of the firearm. Under Schmude's reading of Sec. 2K2.1(c)(1), the phrase "if the resulting offense level is higher" does not apply to the phrase "if the defendant used the firearm in committing or attempting another offense, apply the guideline in respect to such other offense...." Such a reading would lead to an absurd result in this case. Schmude was assigned an offense level of nine for being a convicted felon in possession of a firearm. Under Schmude's reading of Sec. 2K2.1(c)(1), he would have the district judge reward him for then committing the subsequent offense of illegally selling the firearm.

Upward Departure from the Guideline Range

We review a district court's departure from the Guidelines sentencing range to determine whether it was reasonable in light of the district court's explanations for its departure at the time of sentencing. 18 U.S.C. Secs. 3553(c), 3742(e)(3); United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989); United States v. Miller, 874 F.2d 466, 471 (7th Cir.1989). In light of the factors articulated by the district court, we do not think the court's upward departure was reasonable.

A sentencing court is not generally allowed to depart from a Guidelines sentencing range unless the court finds aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. 18 U.S.C. Sec. 3553(b); Jordan, 890 F.2d at 974; United States v. Savage, 888 F.2d 528, 529 (7th Cir.1989). Thus, if the Guidelines do not capture circumstances of the case which the district court determines are relevant to a proper sentence, the district court may factor those circumstances into its sentencing decision. Guidelines Policy Statement Sec. 5K2.0; Jordan, 890 F.2d at 974. More specifically, Guideline Sec. 4A1.3 provides that a court may depart upward from an otherwise applicable Guideline range if reliable information indicates that a defendant's Criminal History Category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood the defendant will commit other crimes.

At Schmude's sentencing hearing, the district judge reasoned that Schmude's Criminal History Category underrepresented Schmude's prior criminal conduct and the likelihood he would commit further crimes.

One ground the district judge relied on to depart upward was that Schmude had recently been convicted and sentenced on a cocaine distribution charge in a Wisconsin state court. This would not support a departure, however, because the conviction for cocaine distribution was included in calculating Schmude's Criminal History Category, and thus, was factored into Schmude's Guideline range. In fact, the state conviction added three points to the ultimate criminal history calculation and bumped Schmude's Criminal History Category from V up to VI.

The district judge also stated that the Guidelines did not seem to take into account the fact that Schmude had previously been convicted for being a felon in possession of a firearm and that this was "the second time around." The district judge was concerned that the prior conviction and sentence was for the same offense. The Commission appears to have given some consideration to this issue. Among the information for departure listed in Guideline Sec. 4A1.3, subsection (e) lists "[p]rior similar adult criminal conduct not resulting in a criminal conviction." However, in calculating a defendant's Criminal History Category, the Guidelines treat all prior convictions equally whether or not they are similar to the offense for which a defendant is being sentenced. Rationally, if a defendant has been convicted for the same offense more than once, he has demonstrated the need for greater sanctions to deter him from committing that same crime again--greater sanctions than might be required for a defendant who has never been convicted of a similar offense. Indeed, the Fifth Circuit has concluded that similarity between previous convictions and the charged offense supports a finding of an inadequate criminal history level. See United States v. De Luna-Trujillo, 868 F.2d 122, 125 (5th Cir.1989) (upholding departure for marijuana possession based on similarity between that offense and previous conviction for possession of marijuana); United States v. Fisher, 868 F.2d 128, 130 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 111, 107 L.Ed.2d 73 (1989) (upholding departure for transporting a stolen tractor based, in part, on repeated convictions for possession of stolen trucks). We believe the approach of the Fifth Circuit to be entirely appropriate and the district judge in this case correctly identified an inadequate aspect of the computation of Schmude's Criminal History Category.

But our review cannot end there. The actual degree of departure must also be reasonable. Jordan, 890 F.2d at 977; ...