United States v. Cicirello

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

8-21-2002

USA v. Cicirello

Precedential or Non-Precedential: Precedential

Docket No. 01-3682

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PRECEDENTIAL

Filed August 21, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3682

UNITED STATES OF AMERICA

v.

MICHAEL CICIRELLO,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 01-cr-00257)

District Judge: Honorable Berle M. Schiller

Argued April 22, 2002

Before: SCIRICA, RENDELL and NOONAN,*

Circuit Judges

(Filed August 21, 2002)

Burton A. Rose, Esq. [ARGUED]

235 South 8th Street

Washington West Building

Philadelphia, PA 19106

Counsel for Appellant

_________________________________________________________________

* Honorable John T. Noonan, Jr., Circuit Judge of the United States

Court of Appeals for the Ninth Circuit, sitting by designation.

Joan L. Markman, Esq. [ARGUED]

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

On January 9, 2001, Mark Smith, James Williams, and

Christopher Williams burglarized the Southeast Archery

and Sports Center in Folcroft, Pennsylvania, breaking

display cases and stealing 22 firearms, all but one of which

were handguns. They had discussed the plan with Michael

Cicirello, but he had declined to participate. However, after

the burglary, when the burglars returned to their residence,

Cicirello agreed to dispose of the firearms and did so the

next day, then turning over the proceeds to the burglars.

Cicirello pled guilty in the United States District Court for

the Eastern District of Pennsylvania to unlawfully disposing

of stolen firearms in violation of 18 U.S.C. S 922(j). At issue

on appeal is the sentence imposed by the District Court

under the United States Sentencing Guidelines ("U.S.S.G."

or "guidelines"). The Presentence Investigation Report

("PSI") noted that, given the number of guns sold illegally

and Cicirello’s prior record, his base offense level was 13,

and his criminal history category was I, and therefore the

guideline range of 12-18 months would apply. However, the

District Court enhanced Cicirello’s offense level and

departed upward, and also increased his criminal history

category based on other contacts with the criminal justice

system, sentencing Cicirello to 60 months’ incarceration, 3

years’ supervised release, and restitution of $15,419.38.

Specifically, the Court applied the upward adjustment of

4 levels under S 2K2.1(b)(5) for the transfer of a firearm

"with knowledge, intent or reason to believe that it would be

used or possessed in connection with another felony

offense" and ruled that a 2-level upward departure was

warranted under S 2K2.1, Application Note 16(4) based on

2

the "substantial risk of death or bodily injury to multiple

individuals."

On appeal, Cicirello contends that there was insufficient

evidence to support the upward departure and the

enhancement, and he objects to the Court’s consideration

of his previous Accelerated Rehabilitative Disposition ("ARD")1

and an open charge of auto theft in departing with respect

to his criminal history, complaining in addition that the

extent of the criminal history departure -- two levels -- was

not reasonable under the circumstances.

The District Court had jurisdiction pursuant to 18 U.S.C.

S 3231, and we have jurisdiction pursuant to 18 U.S.C.

S 3742(a) and 28 U.S.C. S 1291.

Our standard of review in Sentencing Guidelines’ cases is

multi-faceted. We review the District Court’s legal

interpretations and applications of the guidelines de novo.

United States v. Evans, 155 F.3d 245, 252 (3d Cir. 1998).

The District Court’s factual findings are reviewed for clear

error. Id. Finally, the District Court’s decision to depart is

due substantial deference and is reviewed for an abuse of

discretion. United States v. Jacobs, 167 F.3d 792, 798 (3d

Cir. 1999).

Cicirello contends that the District Court erred by

increasing his offense level pursuant to U.S.S.G.

S 2K2.1(b)(5) and abused its discretion by departing upward

based on U.S.S.G. S 2K2.1, Application Note 16(4). He also

urges that the Court abused its discretion by departing as

to his criminal history category, from category I to category

III, pursuant to U.S.S.G. S 4A1.3. We will vacate the District

Court’s sentencing order and remand for resentencing

consistent with this opinion.

BACKGROUND

An understanding of what the record did and did not

reveal as to both the crime and Cicirello’s prior criminal

_________________________________________________________________

1. Accelerated Rehabilitative Disposition is"a rehabilitation program that

allows prosecutors to avert a trial and defendants to ultimately earn a

dismissal of criminal charges by satisfactorily completing a probationary

program." Cain v. Darby Borough, 7 F.3d 377, 382 (3d Cir. 1993).

3

history is essential to our disposition. The record is sparse

regarding facts as to Cicirello’s disposal of the firearms in

question. We know only that, after having declined to

participate in the plans to steal them, he volunteered to

dispose of them. According to the PSI, Cicirello’s attorney

explained: "Mr. Cicirello, knowing that the firearms had

been stolen, said that he knew where they could get rid of

them. In the morning, Mr. Cicirello disposed of the stolen

property." His counsel advised the government that he did

so fearing that the burglars might use them to harm others.

He disposed of them and, according to a statement given by

Mark Smith, one of the burglars, in connection with the

PSI, Cicirello turned over the entire $1,300 in proceeds to

him the night following the burglary. We know nothing as

to where, how, or to whom Cicirello sold the guns. He

declined to provide details to the government. The

Sentencing Memorandum submitted by defense counsel

states: "Defendant did not provide assistance to law

enforcement because he is afraid for his safety and that of

his family should he cooperate, however the defendant has

always fully accepted his role in the offense." Cicirello was

indicted May 11, 2001, and pled guilty May 25, 2001; the

Judgment and Commitment Order was entered on

September 20, 2001.2

We do know that three of the twenty-two guns were later

confiscated in connection with criminal activity-- one from

a serial armed robber two and a half weeks after the

burglary, and two others from a drug stash house six

months later. We also know that this was Cicirello’s first

adult conviction for a criminal offense. His criminal record

included a juvenile adjudication for mischief, and an adult

ARD for a car theft charge, reflected in the PSI as his

having operated a vehicle without the victim’s consent. The

PSI also revealed an arrest for an auto theft that occurred

in May 2000 that was still pending. Cicirello had not been

arrested for that offense until August 2001 and his attorney

indicated that his client had purchased the car lawfully and

was not involved in the theft.

_________________________________________________________________

2. In accordance with U.S.S.G. S 1B.11, we apply the 2000 edition of the

Sentencing Guidelines.

4

As indicated above, the PSI recommended a sentence in

the guideline range of 12 to 18 months. It did not

recommend an enhanced offense level under S 2K2.1(b)(5)

because "[t]he probation officer does not have specific

information connecting the defendant’s sale of firearms with

the commission of other felony offenses." It recommended

an offense level of 16, which included a 4-level increase

from the base offense level to take into account the number

of weapons involved, then reduced it 3 levels, for

acceptance of responsibility, to level 13 and calculated a

criminal history category of I, with the resulting guideline

range of 12 to 18 months. The PSI did note, under"Factors

That May Warrant Departure" that, had Cicirello’s previous

theft charge been a conviction, not an ARD, the criminal

history category would have been II; furthermore, since he

would then have committed the instant offense while on

probation, his score would have been 4 and the criminal

history category III.

The government’s Sentencing Memorandum took the

position that Cicirello had not accepted responsibility, and

urged the Court to depart upward two criminal history

categories because Cicirello’s history seriously under-

represented his background and the likelihood he would

commit further crimes. The government "reluctantly" did

not seek an enhancement under S 2K2.1(b)(5) based on

existing caselaw and the fact that it could not establish the

circumstances of Cicirello’s sale. It also footnoted the fact

that it might make an argument not actually made in the

memorandum, regarding a departure based on Application

Note 16(4) to S 2K2.1.

The District Court made its view of Cicirello’s misdeeds

clear from the outset:

In the early morning hours of January 9, 2001,

Cicirello’s acquaintances burglarized a sporting goods

store, stealing twenty-two firearms, primarily handguns

of various calibers. Although the business and its

insurance carrier were immediate victims of the

burglary, Cicirello’s subsequent conduct expanded the

scope and severity of this crime in ways impossible to

express in terms of mere monetary losses. That is, in

5

wanton disregard for community safety, well-being, and

peace of mind, Cicirello sold these guns on the streets.

The Court then proceeded to address the issues charged

by Cicirello as error before us, first determining that it was

"perfectly clear" that the enhancement underS 2K2.1(b)(5)

was applicable. United States Sentencing Guidelines

S 2K2.1(b)(5) states:

If the defendant used or possessed any firearm or

ammunition in connection with another felony offense;

or possessed or transferred any firearm or ammunition

with knowledge, intent, or reason to believe that it

would be used or possessed in connection with another

felony offense, increase by 4 levels. If the resulting

offense level is less than level 18, increase to level 18.

The Court was swayed by the fact that the guns were

concealable weapons, thus weapons of choice in street

crimes, as well as the fact that "he sold the guns on the

streets." The Court declined to rely on the fact that the

guns had later surfaced in connection with other crimes.

Footnoting a quotation from Bob Dylan to emphasize that

"exacting evidence is superfluous" and "any contention that

Cicirello did not know or have cause to know that the guns

he sold would be used feloniously defies common sense,"

the Court ruled the enhancement applicable. The Court

also ruled that Cicirello did not qualify for credit for

acceptance of responsibility, but that issue has not been

raised before us on appeal.

The Court then turned its focus to the issue of whether

a departure was warranted for "substantial risk" under

Application Note 16(4) to S 2K2.1: "The ruinous effects of

Cicirello’s crime reveal its heinousness: the toll of putting

stolen guns on the streets is borne heavily and borne by

many. Consequently, I upwardly depart from the sentence

yielded by the Guidelines." The Court noted the applicable

departure standard -- aggravating circumstance not

adequately taken into consideration by the guidelines --

and concluded that "a score of lethal, concealable firearms

on the streets" occasioned by Cicirello qualified as an

"extreme aggravating factor," and their continued presence

in the streets posed a continuing danger, warranting an

upward departure of two levels.

6

Finally, the Court addressed Cicirello’s criminal history

and concluded that criminal history category I

underrepresented his "evolving record of criminal dealings."

Noting that Cicirello’s previous behavior could not be

counted, "no matter how relevant or troubling, because of

the absence of a resulting conviction," the Court referenced

the reasoning set forth in the "Facts That May Warrant

Departure" section of the PSI and departed two categories,

from criminal history category I to criminal history category

III.

These calculations yielded an offense level of 22, criminal

history category of III, guideline range of 51 to 63 months.3

DISCUSSION

Cicirello’s appeal presents what we commonly refer to as

"a guidelines case." The propriety of the sentence imposed

on Cicirello will rise and fall based on whether the District

Court applied the guidelines correctly. We are convinced it

did not. As with all guidelines cases, we start with the

pertinent guideline provisions -- those relevant to the

calculation of the offense level and those impacting on the

appropriate criminal history category.

The guideline provision governing Cicirello’s offense is

S 2K2.1, "Unlawful Receipt, Possession or Transportation of

Firearms or Ammunition; Prohibited Transactions Involving

Firearms or Ammunition." The guideline provisions

themselves are comprehensive, covering multiple possible

scenarios and attributing base offense levels from 6 to 26,

depending on the specific type of offense, the type of

firearms, and the defendant’s past criminal history

involving weapons or drugs. The guideline also includes

"Specific Offense Characteristics" with additions and

subtractions depending on related factors, such as

quantity. Had Cicirello sold 8 guns, his base level of 12

would have been increased by 3. Because he sold between

_________________________________________________________________

3. The Court’s written opinion also stated at the end, after its

determination of the 60-month sentence: "In any event, even without any

of the enhancements or upward departures outlined above, I still would

sentence this Defendant to sixty months solely on the basis of

Application Note 16(4) of U.S.S.G. S 2K2.1."

7

13 and 24 guns, it was properly increased by 4. Five other

specific characteristics can result in decreases or increases.4

One such characteristic was found by the District Court to

apply here, namely, (5) for transfers "with knowledge,

intent, or reason to believe it would be used or possessed

in connection with another felony offense" for which 4 levels

were added. The guideline is then followed by 19

application notes, one of which provides:

An upward departure may be warranted in any of the

following circumstances: (1) the number of firearm s

significantly exceeded 50; (2) the offense involve d

multiple National Firearms Act weapons (e.g.,

machineguns, destructive devices), military type

assault rifles, non-detectable ("plastic") firearms

(defined at 18 U.S.C. S 922(p)); (3) the off ense involved

large quantities of armor-piercing ammunition (defined

at 18 U.S.C. S 921(a)(17)(B)); or (4) the of fense posed a

substantial risk of death or bodily injury to multiple

individuals.

U.S.S.G. S 2K2.1, Application Note 16 (2000). This last

circumstance (4) was relied on by the District Court to

increase the offense level by 2 levels.

Under the applicable criminal history category guideline,

S 4A1.1, Cicirello was assigned to category I, for those with

0 or 1 point. He had no adult criminal convictions. His

juvenile conviction counted for only 1 point, and his ARD,

in which there was no finding or admission of guilt in the

proceedings, was specifically removed from consideration by

virtue of the provisions of Application Note 3 toS 4A1.1(c).5

Upward departures from designated criminal history

categories are governed by U.S.S.G. S 4A1.3 based on the

inadequacy of one’s criminal history category:

_________________________________________________________________

4. It is curious that neither the parties nor the PSI references

S 2K2.1(b)(4), which provides a 2-level increase when stolen firearms are

involved, and which would seem to apply to this situation.

5. The PSI noted one point for Cicirello’s juvenile conviction based on

S 4A1.2(d)(2)(B) because the instant offense occurred within 5 years of

his juvenile sentencing. The PSI also properly gave 0 points for the ARD,

referencing it separately under "Other Criminal Conduct."

8

If reliable information indicates that the criminal

history category does not adequately reflect the

seriousness of the defendant’s past criminal conduct or

the likelihood that the defendant will commit other

crimes, the court may consider imposing a sentence

departing from the otherwise applicable guideline

range. Such information may include, but is not

limited to, information concerning:

(a) prior sentence(s) not used in computing the

criminal history category (e.g., sentences for

foreign and tribal offenses);

(b) prior sentence(s) of substantially more than one

year imposed as a result of independent crimes

committed on different occasions;

(c) prior similar misconduct established by a civil

adjudication or by a failure to comply with an

administrative order;

(d) whether the defendant was pending trial or

sentencing on another charge at the time of the

instant offense;

(e) prior similar adult criminal conduct not resulting

in a criminal conviction.

A departure under this provision is warranted when

the criminal history category significantly under-

represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit

further crimes. . . . The court may, after a review of

all the relevant information, conclude that the

defendant’s criminal history was significantly more

serious than that of most defendants in the same

criminal history category, and therefore consider an

upwards departure from the guidelines. However, a

prior arrest record itself shall not be considered

under S 4A1.3.

U.S.S.G. S 4A1.3 (2000) (emphasis added).

Parsing the guidelines, however, is only part of the task,

as the caselaw construing the guidelines also impacts how

the District Court should carry out its sentencing role. For

9

clarity, we will consider relevant case authority in the

context of the District Court’s ruling on the specific issues

presented in this appeal.

I.

Enhancement of Offense Level Under S 2K2.1(b)(5)

As we discuss below, the District Court referenced two

cases in passing, but neither supports the application of

this enhancement in a situation where, as here, both the

government and pretrial services seemed to acknowledge

that there was no evidence as to the circumstances of

Cicirello’s sale. As noted above, the PSI explicitly provided

that there was no "specific information connecting the

defendant’s sale of firearms with the commission of other

felony offenses," and, accordingly, the probation officer

concluded that the S 2K2.1(b)(5) enhancement was

inapplicable. While the sentencing court is always free to

draw inferences from facts of record, here there are no facts

from which Cicirello’s knowledge, intent or belief at the

relevant time can be gleaned, let alone knowledge or

reasonable belief that the guns would be used in

connection with another felony. Neither fear for his safety

several months later, nor the later use of three of the guns

in connection with criminal activity is probative of the

requirement that the transfer be "with knowledge, intent, or

reason to believe." All we know of the transfer was that it

took place in one day and produced $1,300. For all we

know, Cicirello sold the guns to a pawn shop, a gun dealer,

or a relative, any of whom later could have turned out to be

engaged in criminal activity, and could have perhaps

threatened Cicirello after the fact.

While the government bears the burden of proving by a

preponderance of the evidence that the facts warrant an

enhancement, see United States v. Napier, 273 F.3d 276,

279 (3d Cir. 2001), that is not to say that the government

must prove the precise means and manner of transfer. It

must, however, present some facts to show the

enhancement should be applied, facts from which an

inference of Cicirello’s knowledge or reason to believe can

be drawn.

10

For example, in United States v. Bass, 54 F.3d 125 (3d

Cir. 1995), we noted that had the guidelines applicable here

been in effect, Bass might have had the enhancement

applied to him based on his conviction for conspiring with

individuals involved in an interstate ring selling guns to

straw buyers. And in United States v. James, 172 F.3d 588

(8th Cir. 1999), the Court of Appeals for the Eighth Circuit

affirmed the enhancement’s application to an admitted

gang member with a history of violence, who had been

previously convicted of carrying a concealed weapon and

was convicted in a scheme to sell guns to his friends, some

of whom were also gang members. The court cited the

sentencing court’s conclusion with approval: "if he didn’t

specifically know, he certainly had good reason to believe

that these guns were going into gang activities in south

Chicago." Id. at 594. And in United States v. Messino, 55

F.3d 1241 (7th Cir. 1995), the fact that the defendant sold

the confidential informant a silencer, and had been told

that the confidential informant purchaser was well

connected with local crime figures and was willing to

commit murder, was a sufficient basis for the

enhancement.

Other courts of appeals affirming the application of this

enhancement have similarly found the facts to permit some

basis to support the required finding as to the convicted

seller’s knowledge, intent, or reason to believe. 6

In United States v. Askew, 193 F.3d 1181 (11th Cir.

1999), on the other hand, the Court of Appeals for the

Eleventh Circuit concluded that the fact that the defendant

-- who was not the actual seller -- was aware the guns

being sold were stolen and were the kinds of guns that turn

up at crime scenes, was not sufficient to justify an

enhancement under S 2K2.1(b)(5). In commenting on the

government’s burden, the court noted that, while the

preponderance of the evidence is not a high standard of

proof, "[i]t is not, however, a toothless standard, either, and

_________________________________________________________________

6. See United States v. Askew, 193 F.3d 1181, 1185 n.4 (11th Cir. 1999)

(providing a list of cases in which "the government introduced evidence

showing why that particular defendant had ‘reason to believe’ the

transferee would use the firearm in a felony").

11

a district court may not abdicate its responsibility to ensure

that the prosecution meets this standard before adding

months or years onto a defendant’s prison sentence."

Askew, 193 F. 3d at 1183. The court found that the record

did not eliminate the "innocent" possibilities regarding

Askew’s knowledge and concluded that because the

evidence was "in equipoise," the government had failed to

meet its burden and the enhancement was inappropriate.7

The same reasoning and result applies here. We know

nothing about Cicirello or the circumstances of the sale

that undermine the "innocent" possibilities that are at least

as likely as the guilty ones.

For this same reason, the cases cited by the District

Court are unhelpful. United States v. Cofske, 157 F.3d 1

(1st Cir. 1998), involved the surreptitious transfer of guns

in the middle of the night in exchange for illegal drugs and

money, and in United States v. Nunez, 146 F.3d 36 (1st Cir.

1998), the defendant sold explosives to a transferee who

had told the defendant he wanted the pipe bomb for use

against a rival gang, and the defendant himself had

admitted post-arrest that he made the pipe bombs because

he wanted to hurt gangs. The factual predicates obviously

present in those cases are simply not replicated in the

evidentiary record here.

Finally, the factors relied upon by the District Court --

the sale on "the streets" and the type of guns-- do not save

its ruling. The sale "on the streets" is simply unfounded, as

the record only indicates that Cicirello "disposed of " the

guns, not where, how, or to whom. With respect to the type

of guns, while 21 of the 22 guns stolen were handguns, this

fact alone certainly does not establish that Cicirello had the

required mental state.

The facts present here are not enough from which to infer

knowledge, intent, or reason to believe, and make this case

readily distinguishable from cases affirming the 4-level

increase. As the District Court’s factual determination that

defendant had reason to believe that the stolen firearms

_________________________________________________________________

7. See United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995);

United States v. Shriver, 967 F.2d 572, 575 (11th Cir. 1992); United

States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).

12

would be used in another felony was clearly erroneous, we

conclude that the District Court erred in imposing the

enhancement and Cicirello is entitled to be resentenced

without its application.

II.

Departure Upward for Substantial Risk of

Death or Bodily Injury

The District Court is authorized to depart from the

sentencing range where "the court finds that 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 that

should result in a sentence different from that described."

18 U.S.C. S 3553(b). Therefore, the key issue is whether the

aggravating circumstances found by the District Court were

"taken into account" by the Commission. The Supreme

Court has explained that before departing, the District

Court must find "certain aspects of the case . . . unusual

enough for it to fall outside the heartland of cases." Koon v.

United States, 518 U.S. 81, 98 (1996). While we defer to the

District Court’s decision to depart, the legal conclusion

regarding "whether section 3553(b) permits a departure

because the Commission did not adequately take

designated circumstances into account" is subject to

plenary review. United States v. Uca, 867 F.2d 783, 786 (3d

Cir. 1989); see Koon, 518 U.S. at 98-99.

As noted above, Application Note 16 to S 2K2.1

specifically references the possibility of an upward

departure if the offense of gun possession or transfer had

certain characteristics, such as very large quantities of

certain types of weapons, or if "the offense posed a

substantial risk of death or bodily injury to multiple

individuals." The District Court, again relying on the "sale

on the streets" of 22 guns, concluded that this type of risk

was apparent, holding that selling "a score of lethal

concealable firearms on the streets is an extreme

aggravating factor not taken into account by the

Guidelines."

13

We cannot agree. Application Note 16 speaks in very

strong terms -- "a substantial risk of death or bodily injury

to multiple individuals" -- and the atypicality statutorily

required for departure heightens the standard even more.

Here, the number of weapons has been specifically

considered in the guideline, as has the fact that the

weapons governed by it are for the most part concealable

firearms. And, as noted above, the conclusory attribute of

"on the streets" is unfounded. We can only conclude that

Cicirello’s offense is within the "heartland" of S 2K2.1,

clearly anticipated by its terms. See Uca, 867 F.2d at 787-

90.

While citing the standard, the District Court failed to

analyze how the overall departure standard -- namely,

atypicality -- applied here to the specific aspect of risk of

injury relied upon. It never asked the necessary question as

to whether Cicirello’s offense posed a substantial risk of

death or bodily injury to multiple individuals in a way that

falls outside the heartland of illegal gun sales.

The reasoning of other courts that have approved

departures in reliance on Application Note 16(4) is

instructive. In fact, in the case cited by the District Court,

United States v. Alers, 852 F. Supp. 310, 315-16 (D.N.J.),

aff ’d, 40 F.3d 1241 (3d Cir. 1994) (unpublished), the

district court did make that inquiry and responded by

finding that Alers’ sale of over 400 weapons to known drug

dealers over an extended period of time posed a risk"far

more grave" than considered in the guidelines. The court

noted that the transfers to drug dealers were not merely

with knowledge of a risk of injury; rather, violence"is

virtually a necessary incident of arming drug dealers." Id. at

316.

As the district court in Alers noted -- and as is also

relevant here -- we said in United States v. Kikimura, 918

F.2d 1084 (3d Cir. 1990), that the guidelines regarding

illegal gun activity already contain some presumption of

intended unlawful use that is factored into the base offense

level. Alers, 852 F. Supp. at 315 (citing Kikimura, 918 F.2d

at 1098). Departure is only warranted when the risk is not

only substantial, but also atypical, based on the facts, as it

was in Alers. Similarly, in United States v. Huddleston, 929

14

F.2d 1030 (5th Cir. 1991), the departure was warranted

where the defendant and an accomplice had loaded 28

cases of explosives into a U-Haul trailer and transported

them across a populated area of Texas in an unsafe

manner. The court found that the offense level did not

adequately reflect the risk entailed in the offense. And, in

United States v. Brunet, 178 F. Supp. 2d 342 (S.D.N.Y.),

aff ’d, 275 F.3d 215 (2d Cir. 2001), the contents of the

defendant’s basement apartment in a densely populated

area (bomb ingredients, instruction books, assault

weapons, machine guns, grenades, ammunition, silencers,

spikes) were found to pose a similar atypical risk.

Moreover, the instant situation closely parallels the fact

pattern and our reasoning in concluding that a departure

was not warranted in United States v. Uca, 867 F.2d 783

(3d Cir. 1989). There, the district court found the

possession of 56 untraceable handguns translated"to at

least 56 potential acts of violence in this country or in

another country. The use of handguns, unlicensed

handguns, causes the perpetuation of criminal activity of

persons so inclined to rob, maim, start their own private

wars . . . ." Id. at 786. We ordered resentencing of Uca and

his co-defendant, concluding that the mandatory nature of

18 U.S.C. S 3353(b), combined with the guidelines

admonition that departure is warranted only if a factor is

present to a degree "substantially in excess of that which

ordinarily is involved in the offense of conviction," made

such departures appropriate only in rare cases. Uca, 867

F.2d at 787 (quoting U.S.S.G. S 5K2.0). We determined that

the quantity and nature of the guns were already

contemplated by the guidelines, and the public risk

involved was not present to an excessive degree over and

above the typical weapons offense. Id. at 788-90.

We question here how the nature of the threat posed by

Cicirello’s sale of 22 guns really involved a substantial risk

different from what S 2K2.1 was crafted to punish, or

somehow more excessive in degree than the typical illegal

sale of guns case. We can only conclude that it does not.

The guideline clearly takes the number of guns into

account, and, like the situation in Uca, we think the

presumed ramifications did not constitute the substantial

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or atypical risk of death or bodily injury that would warrant

a departure from the applicable guideline range.

Accordingly, on resentencing, the District Court shall not

depart upward based on Application Note 16.

III.

Departure Upward for Criminal History Category

The District Court’s departure upward to criminal history

category III from category I was based upon its considered

view that Cicirello’s brushes with the law in an 18-month

period revealed an "evolution" not sufficiently reflected in

category I -- in which those with no history at all will fall

-- and the resulting perceived tendency toward recidivism.

We do not question the Court’s concern over whether

category I is entirely appropriate, for it is debatable in light

of the apparent trend indicated by Cicirello’s recent

behavior. Nonetheless, the District Court failed to adhere to

two principles -- one contained in the guidelines

themselves that we have cited above, and the other

developed by our case precedent based on the first.

United States Sentencing Guidelines S 4A1.3 requires the

court, if concerned regarding the category’s

underrepresentation of the seriousness of the defendant’s

conduct and likelihood of future offenses, to make a specific

inquiry. As noted above, this inquiry requires an

examination of the typical history of those in that category,

and whether the defendant’s history is "significantly more

serious than that of most defendants in the same criminal

history category." U.S.S.G. S 4A1.3.

Drawing on this statutory requirement to look to the

history of other defendants in the category, we have

imposed on the district courts the related responsibility to

"ratchet" from one category to the next if the court is

considering a departure of more than one level. As

described in United States v. Hickman, 991 F.2d 1110 (3d

Cir. 1993), in determining which category best represents

the defendant’s prior criminal history, the court must

proceed sequentially through the categories and must not

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move to the next category until it has found that a prior

category still fails adequately to reflect the seriousness of

the defendant’s history. Id. at 1114.

In Hickman, we cited with approval Judge Newman’s

description of the process:

The reason for obliging a judge to examine the next

higher categories in sequence is that these categories

reflect the Commission’s careful assessment of how

much incremental punishment a defendant should

receive in light of the various degrees of a prior record.

In formulating the Guidelines in general and the

criminal history categories in particular, the

Commission sought to implement a congressional

policy of lessening disparity by narrowing, though not

eliminating, the discretion of sentencing judges. At the

same time, the Commission specified for each criminal

history category a range of available sentences, in this

case, seventeen months, so that a sentencing judge

could somewhat adjust the sentence to reflect the

unique characteristics of each case. In light of the

Commission’s careful construction of the criminal

history categories, when a judge concludes that a

defendant’s category is inadequate, a sentence in the

range of the next higher category will usually be

sufficient. At least that next higher category must be

considered and found inadequate before considering an

even higher category.

991 F.2d at 1114 (quoting United States v. Coe , 891 F.2d

405, 413 (2d Cir. 1989)).

We are not alone in mandating that sentencing courts

perform the "typicality" assessment underS 4A1.3 and

reflect their reasoning as they proceed from one category to

the next. See United States v. Rusher, 966 F.2d 868, 884

(4th Cir. 1992); United States v. Gayou, 901 F.2d 746, 749

(9th Cir. 1990); United States v. Coe, 891 F.2d 405, 412-13

(2d Cir. 1989); United States v. Lopez, 871 F.2d 513, 515

(5th Cir. 1989); United States v. Miller, 874 F.2d 466, 470-

71 (7th Cir. 1989).

Here, Cicirello had no adult convictions, but several

recent scrapes with the law. Category I includes those with

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0 or 1 point. Cicirello’s 1 point was for a nearly 5-year-old

juvenile probationary sentence. His recent theft activity

consisted of, in one instance, an ARD which resulted in no

finding or admission of guilt, and, in the other, conduct

merely charged (the auto theft of the car for which an arrest

was made 1 and 1/2 years after the fact). Category II

involves 2 or 3 points, while category III would be

appropriate for 4, 5, or 6 points.

The District Court did not analyze the typicality of

Cicirello’s history vis-a-vis others in category I. Instead it

referenced the hypothetical scenario set forth in the PSI to

reflect the methodology the court could use to depart

upwards two categories. That reasoning was as follows: If,

in lieu of the ARD, Cicirello had been convicted of auto

theft, not only would he have had an adult conviction, but,

in addition, the instant offense would have been committed

while on probation, all of which would have resulted in 4

points. However, we cannot subscribe to a "what if "

scenario as a replacement for the required reasoned

analysis. If the ARD should appropriately be viewed as the

equivalent of an adult conviction on some basis in fact or

law, and such a history is not typical of those in category

I or II, perhaps the analysis would support a two-level

departure. But no such basis was stated.

The District Court thus erred by not engaging in the

necessary analysis, namely, by departing from category I

without noting why Cicirello’s history did not "fit" within

that category, and to category III without assessing the

adequacy of category II.

Accordingly, on remand, the District Court shall

determine Cicirello’s criminal history category by

performing the analysis called for by the statute and our

case law.

CONCLUSION

In light of the foregoing, we will VACATE the Judgment

and Conviction Order and REMAND this case to the District

Court for resentencing in accordance with this opinion.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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