The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4446
JOHNNY MACK BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-96-196)
Submitted: May 29, 1998
Decided: June 30, 1998
Before WIDENER and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Philip J. Combs,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Johnny Mack Brown appeals his conviction and 120-month sen-
tence for possession of a firearm by a convicted felon, 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1998). We affirm the conviction but vacate
the sentence and remand for resentencing.
I
Franklin Stump, a deputy sheriff for Raleigh County, West Vir-
ginia, testified that in January 1995 he went to a pawn shop near
Beckley, West Virginia, to look for stolen property in connection with
a burglary investigation. During the investigation, Stump found a
pawn ticket for a shotgun. The ticket had Brown's name on it. Stump
knew Brown to be a convicted felon who was not allowed to possess
a firearm. Stump left the pawn shop and returned with a photo lineup
that included Brown's photograph. The owner of the pawn shop iden-
tified Brown as the person who had pawned the gun. Stump then took
possession of the shotgun and left the shop. As he was leaving, Brown
pulled up and asked Stump where he was going with"his" gun.
Stump contacted the Bureau of Alcohol, Tobacco, and Firearms
(ATF). Two ATF agents interviewed Brown about the gun, which
was manufactured in Canada. One of the agents testified that Brown
admitted to her that he had pawned the shotgun. He asked to be taken
to jail, conceding his guilt.
A jury convicted Stump of being a felon in possession of a firearm.
A probation officer determined that, with an offense level of 18 and
a criminal history category of VI, Brown's guideline range was 57-71
months. At sentencing, however, the district court determined that an
upward departure to the statutory maximum of 120 months was war-
2
ranted. See 18 U.S.C.A. § 924(a)(2) (West Supp. 1998). Brown
appeals, challenging both his conviction and sentence.
II
Brown first contends that the government failed to show that the
shotgun possessed a substantial and explicit connection to interstate
commerce. We have never held that such a showing is necessary to
convict under § 922(g)(1). Rather, we have found that the statute
requires only a minimal nexus. See United States v. Wells, 98 F.3d
808, 811 (4th Cir. 1996). The minimal nexus requirement was satis-
fied in this case because the firearm was manufactured in Canada and
made its way to West Virginia.
III
Brown's base offense level of 20 was reduced by 2 levels for
acceptance of responsibility. He had 21 criminal history points, plac-
ing him in criminal history category VI. The resulting guideline range
was 57-71 months. Brown was statutorily subject to a maximum term
of imprisonment of ten years.
At sentencing, the district court heard argument on the United
States' motion for upward departure from the guideline range. Fol-
lowing argument, the court granted the motion, finding that an
upward departure was authorized under USSG § 4A1.3, p.s. The court
granted the motion because Brown's criminal history category did not
adequately reflect the seriousness of his criminal conduct or the likeli-
hood that he would commit other crimes.
The court observed that a departure under § 4A1.3(e) is authorized
for inadequate criminal history if there was prior adult criminal con-
duct not resulting in convictions. The presentence report identified
twenty-six arrests between January 19731 and March 1995 that did
not result in convictions. Among the more serious charges for which
Brown was arrested but not convicted were carrying a deadly and
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1 Brown was born on July 19, 1954.
3
dangerous weapon; malicious wounding; battery, intimidating a wit-
ness, and brandishing; and sexual assault.2
Further, the court stated that § 4A1.3 permits a departure if the
criminal history category significantly under-represents the serious-
ness of the defendant's criminal history or the likelihood that he will
commit other crimes. The court found that Brown previously had
received extremely lenient sentences considering the serious charges
of which he had been convicted. For instance, in 1992 Brown was
convicted of attempted first degree murder of and unlawful assault
upon his wife, whom he shot. He served just over two years for those
offenses.
The court commented that Brown's documented criminal activities
began in 1970 and recurred regularly thereafter, with no meaningful
interruptions. Brown committed the instant offense a mere two
months after his release from the West Virginia Penitentiary. He com-
mitted additional offenses after the subject offense and following his
initial indictment in this case. Brown's activities revealed a lack of
respect for the law and the rights of others. His prior punishments had
not deterred future criminal behavior. Therefore, the court concluded
that there was a strong likelihood that Brown would commit other
crimes.
For the foregoing reasons, the district court determined that a
departure to the statutory maximum of ten years was warranted. The
court departed to offense level 24; with a criminal history category of
VI, the resulting guideline range was 100-125 months. The court sen-
tenced Brown within that range to the statutory maximum of 120
months.
Brown contends on appeal that because the district court employed
the incorrect methodology in arriving at the higher offense level, the
sentence must be vacated. We agree.
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2 Despite this extensive arrest record, "a prior arrest record itself shall
not be considered [as a basis for departure] under § 4A1.3." USSG
§ 4A1.3, p.s. The district court should take this into account at resentenc-
ing.
4
The district court determined that Brown should be sentenced to
the maximum term possible, or 120 months. To accomplish this, the
court moved from the highest possible offense level (43) numerically
down category VI of the Sentencing Table until it reached the lowest
offense level (24) that would result in a guideline range that afforded
the possibility of a 120-month sentence.
The court used the wrong procedure to reach its desired result.
Cases from this court addressing departures above category VI dictate
that the district court first identify the applicable guideline range
(here, 57-71 months) and then increase the offense level incremen-
tally until it reaches a guideline range that the court considers appro-
priate. As it moves from one offense level to the next, the court must
explicitly state why the guideline range at each level is insufficient.
See United States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995);
United States v. Cash, 983 F.2d 558, 561-63 (4th Cir. 1992); United
States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). Because the dis-
trict court used the incorrect methodology, it abused its discretion in
sentencing Brown. See Koon v. United States, 581 U.S. 81, 92-100
(1996).
We accordingly affirm Brown's conviction, vacate his sentence,
and remand for resentencing. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED IN PART; VACATED
AND REMANDED IN PART
5