984 F.2d 143
UNITED STATES of America, Plaintiff-Appellee,
Markum Lynn FITZHUGH, Defendant-Appellant.
United States Court of Appeals,
Feb. 9, 1993.
Rehearing Denied April 30, 1993.
Walter M. Reaves, Jr., West, TX (court-appointed), for defendant-appellant.
Richard L. Durbin, William W. Johnston, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, DAVIS and JONES, Circuit Judges.
POLITZ, Chief Judge:
Markum Lynn Fitzhugh appeals his conviction of firearm possession by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a), and the sentence imposed by the district court. Finding neither error nor abuse of discretion, we affirm.
On October 16, 1990, Fitzhugh burglarized the home of a Deputy United States Marshal, stealing a loaded .38 caliber pistol. The marshal's fourteen-year-old daughter, present in the house during the burglary, avoided detection by hiding in a bedroom but could not summon police because Fitzhugh disconnected the telephones. Fitzhugh had broken into the house on two prior occasions, on the first taking photographs of the firearms kept there to show potential purchasers and on the return stealing a .22 caliber rifle and a .30 caliber fully automatic carbine. Fitzhugh traded the pistol for methamphetamine and sold the other two weapons to acquaintances.
Fitzhugh pleaded guilty to an indictment for possession of a firearm by a felon and "true" to the allegation that his criminal history qualified him for enhanced sentencing under the armed career criminal act, 18 U.S.C. § 924(e). Finding Fitzhugh guilty of a crime of violence, the district court sentenced him as a career offender under U.S.S.G. § 4B1.1 to 480 months imprisonment. Fitzhugh appealed his sentence. Concluding that the trial court erroneously applied section 4B1.1, we vacated the sentence and remanded for resentencing. On remand, the district court reimposed its original sentence. Fitzhugh again timely appealed, challenging both his conviction and sentence.
1. Validity of the Conviction
Fitzhugh challenges both the indictment and factual basis for the guilty plea, contending that because they assert only that the weapon he possessed moved at one time in interstate commerce they fail to allege and establish a violation of 18 U.S.C. § 922(g)(1). Fitzhugh finely parses that statute, noting its varying language concerning the requisite connection of each prohibited act to interstate commerce. He suggests, in the absence of clear direction from this court, that use of the present perfect tense to describe that nexus with respect to receipt, considered against use of the present tense in the possession context, indicates that only possession of a firearm having a present connection to interstate commerce violates section 922(g)(1). Although facially appealing, this argument fails to persuade.
A prohibition on possession "in or affecting commerce" admits of several possible interpretations. Faced with such ambiguity, we look beyond statutory language to fathom a meaning consistent with legislative intent. Congress enacted section 922(g)(1) in 1986, repealing its predecessor 18 U.S.C. § 1202(a). In Scarborough v. United States, the Supreme Court interpreted section 1202(a) as prohibiting possession by felons of firearms which had at any time moved in interstate commerce. Against the backdrop of Scarborough, the inclusion in section 922(g)(1) of interstate commerce language almost identical to that found in section 1202(a) suggests intent to continue the former statute's broad reach. Legislative history similarly substantiates this intent. We conclude, in accord with our colleagues in other circuits, that a convicted felon's possession of a firearm having a past connection to interstate commerce violates § 922(g)(1).
2. Sentencing Issues
Fitzhugh challenges the district court's calculation of his criminal history score and its upward departure from the Guideline range. We accept district court fact findings relating to sentencing unless clearly erroneous, but review de novo application of the Guidelines. We may disturb sentences imposed under the Guidelines only if "imposed in violation of law, as a result of an incorrect application of the sentencing guidelines, or ... outside of the applicable guideline range and ... unreasonable." We find no such error here.
a. Criminal History Assessment--
Fitzhugh claims that the trial court erroneously failed to treat 15 prior burglary sentences as related under U.S.S.G. § 4A1.2(a)(2), and erroneously assigned separate criminal history points for each. The official commentary treats prior convictions consolidated for trial or sentencing as related under section 4A1.2(a)(2).15 We review district court determinations about such relatedness de novo. As Fitzhugh acknowledges, we have held that imposition of concurrent sentences in a single proceeding, while relevant to the § 4A1.2(a)(2) inquiry, will not alone support a finding of relatedness. Although the Texas court imposed concurrent 15-year prison terms for the prior offenses at issue in a single proceeding, the record reflects no other linkage. Fitzhugh's contention lacks merit.
b. The Upward Departure--
Fitzhugh challenges the reasonableness, adequacy, and methodology of the district court's upward departure. Sentencing courts may impose sentences outside the range established by the Guidelines in cases presenting "aggravating or mitigating circumstance[s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." The district court must state on the record its reasons for departing from the guideline sentencing range, however, 18 U.S.C. § 3553(c), and the departure must be reasonable.20
Fitzhugh's claim that the district court departed unreasonably from the guideline sentence need not long detain us. We agree that the district court departed substantially by imposing a sentence 25 years longer than the 15-year sentence set by the guidelines. We cannot, however, find this departure unreasonable. Under the guidelines, failure of the criminal history category adequately to reflect the defendant's past criminal conduct or likelihood of recidivism supports upward departure.21 The court a quo faced a defendant with a then-unprecedented criminal history score of 57--more than four times the minimum score for criminal history category VI. That remarkable score did not take into account five burglary charges dismissed as part of a plea agreement or even an appreciable fraction of the estimated 1200 to 1300 burglaries which Fitzhugh admitted to the probation officer during the presentence investigation. These egregious facts fully support the reasonableness of the sentence imposed.
Fitzhugh also asserts that the district court erred by increasing the offense level as a means of departure. Contrary to Fitzhugh's assertion, we have not disapproved of the process by which the district court arrived at the sentence. As long as the district court imposes a reasonable sentence, the fact that it took account of egregious criminal history by increasing the offense level does not require reversal.
Finally, Fitzhugh argues that the district court erred in failing to indicate on the record its reasons for refusing to impose some sentence greater than 15 and less than 40 years. Our cases evince some confusion concerning the justification which a sentencing court must provide when departing upward under U.S.S.G. § 4A1.3. We need not seek to resolve this confusion, however, in order to decide the instant case, for even if the district court failed properly to justify the degree of its departure, the result of our review is the same. In light of the highly unusual facts of this case, we are persuaded that the procedure suggested by Fitzhugh would have produced an identical sentence. The record before us provides an adequate basis for appellate review.
For the foregoing reasons, the conviction and sentence imposed are AFFIRMED.