United States v. Bellamy ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4300
BOBBY LEE BELLAMY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-99-137-BR)
Argued: March 2, 2001
Decided: September 6, 2001
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer joined. Judge Michael wrote an opinion con-
curring in part and concurring in the judgment.
COUNSEL
ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Dennis M. Duffy, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas P. McNamara, Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
2 UNITED STATES v. BELLAMY
OPINION
KING, Circuit Judge:
Bobby Lee Bellamy appeals the sentence imposed by the district
court on his convictions stemming from an incident where Bellamy,
a 38-year-old convicted felon, brought a loaded handgun into a class-
room of students attending Spring Lake Middle School just north of
Fayetteville, North Carolina. The court departed upward a total of
eight levels from the prescribed Guidelines range of 51-63 months,
sentencing Bellamy to a 137-month term of imprisonment. Discerning
no error on the part of the court below, we affirm its imposition of
sentence.
I.
Without benefit of a plea agreement, Bellamy pleaded guilty to a
two-count indictment charging him with illegal possession of a fire-
arm in a school zone, as prohibited by 18 U.S.C. § 922(q)(2)(A), such
possession alleged to have also violated 18 U.S.C. § 922(g)(1) by vir-
tue of Bellamy’s status as a convicted felon.1 In advance of sentenc-
1
Section 922 of the federal criminal code provides, in pertinent part:
(g) It shall be unlawful for any person —
(1) who has been convicted in any court of, a crime punish-
able by imprisonment for a term exceeding one year;
...
to . . . possess in or affecting commerce, any firearm or ammuni-
tion[.]
The school zone provision, contained within the same section, specifies
that:
(q) . . .
(2)(A) It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise affects
interstate or foreign commerce at a place the individual
knows, or has reasonable cause to believe, is a school zone.
The maximum prison sentence for violating the school zone prohibition
is five years, which "shall not run concurrently with any other term of
UNITED STATES v. BELLAMY 3
ing, the Government moved the district court for an upward departure,
contending that (1) Bellamy had "brandished [the] firearm while in
the school"; and (2) "the applicable guideline range understates [his]
criminal history." J.A. 28.
Testimony at the sentencing hearing established that Bellamy, a
resident of Horry County, South Carolina, had come to town to visit
his girlfriend. The morning of August 16, 1999, however, found Bel-
lamy not at his girlfriend’s trailer, but at the one next door. While
smoking crack with the second trailer’s occupants, Bellamy became
involved in a fight. In the wake of this altercation, Bellamy fled from
the trailer park carrying a .25 caliber semi-automatic pistol. Bellamy
continued to run for about three-quarters of a mile until he reached
the school, where the first day of classes was underway.
Social studies teacher Evelyn Cannon was busily taking attendance
when Bellamy entered her classroom and sat down at an empty desk,
with the pistol in plain view of the surrounding students. After a few
moments, Bellamy rose and approached Cannon. Appearing scared
and nervous, Bellamy told Cannon that he was being pursued and
asked for her help. Realizing that Bellamy was not a student, Cannon
escorted him out of the room and into the adjoining hallway. With the
promise of forthcoming assistance, Cannon persuaded Bellamy to
accompany her to the principal’s office.
Along the way, Bellamy became more agitated; he grabbed Cannon
and tried to pull her close. Cannon suddenly noticed the pistol in Bel-
lamy’s hand, and she evaded his grasp. His attempt thus frustrated,
Bellamy pointed the firearm at Cannon. Bellamy lowered the weapon
a few moments later, as Cannon convinced him to continue with her
toward their destination. Upon arriving at the principal’s office, Bel-
lamy surrendered the pistol and waited for the authorities to arrive.
imprisonment imposed under any other provision of law." 18 U.S.C.
§ 924(a)(4). The district court therefore apportioned Bellamy’s sentence
to run for 33 months on the school zone conviction, with a consecutive
term of 104 months on the felon-in-possession conviction. See United
States Sentencing Commission, Guidelines Manual, § 2K2.5, comment.
(n.3) (Nov. 1998).
4 UNITED STATES v. BELLAMY
II.
A.
1.
Different provisions of the Guidelines relate to each of the two
offenses of conviction. Section 2K2.1, broadly entitled (in part) "Un-
lawful Receipt, Possession, or Transportation of Firearms or Ammu-
nition," governs sentencing for Bellamy’s felon-in-possession
conviction, while the more narrowly focused section 2K2.5 applies to
Bellamy’s conviction under § 922(q). This latter section dictates sen-
tencing for, inter alia, "Possession or Discharge of Firearm in [a]
School Zone."
Bellamy’s base offense level pursuant to § 2K2.1 was 20, because
he had one qualifying prior conviction of a crime of violence. See
United States Sentencing Commission, Guidelines Manual,
§ 2K2.1(a)(4)(A) (Nov. 1998). The offense level computed under
§ 2K2.5 was considerably less: a base of 6, see § 2K2.5(a), adjusted
upward to 8 because the firearm was possessed in a school zone (as
opposed to a federal facility, to which § 2K2.5 also applies), see
§ 2K2.5(b)(1)(B). Inasmuch as both counts involved substantially the
same harm, they were grouped together, see § 3D1.2(a). Conse-
quently, the higher of the two offense levels became applicable to the
Group as a whole. See § 3D1.3(a). With a three-level deduction for
acceptance of responsibility, see § 3E1.1(b)(2), Bellamy’s adjusted
offense level was calculated at 17, which, in conjunction with a Crim-
inal History Category of VI, resulted in a sentencing range of 51-63
months.
In support of its motion for an upward departure, the Government
argued that Bellamy’s brandishing of the pistol was an "encouraged"
basis for imposing a longer sentence. See Koon v. United States, 518
U.S. 81, 94 (1996) (describing encouraged bases as those "the Com-
mission has not been able to take into account fully in formulating the
guidelines") (quoting USSG § 5K2.0). The Government grounded its
argument in the text of the Commentary to the school zone guideline,
which provides: "Where the firearm was brandished, discharged, or
otherwise used, in a . . . school zone, and the cross reference from
UNITED STATES v. BELLAMY 5
subsection (c)(1) does not apply, an upward departure may be war-
ranted." USSG § 2K2.5, comment. (n.4) (emphasis added).
The "cross-reference from subsection (c)(1)" addresses, among
other things, the situation where the defendant possesses the firearm
at issue "in connection with the commission or attempted commission
of another offense, or . . . with knowledge or intent that it would be
used in connection with another offense[.]" § 2K2.5(c)(1). In such a
case, the guideline directs the sentencing court to compute the offense
level of that other offense in light of § 2X1.1 (Attempt, Solicitation,
or Conspiracy). If the resultant level for the inchoate offense exceeds
that of the firearms offense under § 2K2.5, subsection (c)(1) requires
the defendant to be sentenced in accordance with the former. In other
words, the cross-reference "applies."
2.
Bellamy devotes much of his opening brief to the argument that his
possession of the pistol in the school zone was "in connection with
the commission . . . of another offense," namely the felon-in-
possession charge of which he was also convicted. Bellamy urges that
the cross-reference to § 2X1.1 should therefore apply, leaving unful-
filled a necessary condition to the departure contemplated by Applica-
tion Note 4 to § 2K2.5. The Government, for its part, appears to have
abandoned its position before the district court and conceded that the
probation officer, in preparing the presentence investigation report
("PSR"), should have applied the cross-reference. See Br. of United
States, at 13 n.4.
Neither Bellamy nor the Government, however, come to grips with
the vexing question of whether § 2X1.1 can, by its very terms, ever
apply to a completed offense like Bellamy’s, where a felon has come
into actual possession of a firearm. See United States v. Egemonye,
62 F.3d 425, 429 (1st Cir. 1995) ("U.S.S.G. § 2X1.1. is concerned
with determining the offense level for an attempt or conspiracy . . . .
Read literally, section 2X1.1 is not relevant to the present case
because [most of the charges] involved completed substantive
offenses . . . and the conspiracy thus embraced fully completed
crimes.") (emphasis in original). The proper application of
§ 2K2.5(c)(1) in this instance is not easily discerned, and it might
6 UNITED STATES v. BELLAMY
plausibly be argued that its reference to "the commission . . . of
another offense" pertains to nothing more than the subject matter of
§ 2X1.1, that is, conspiracies and solicitations.
3.
In any event, we need not decide this matter today. As the Govern-
ment correctly points out, the district court did not depart on the nar-
row basis afforded by § 2K2.5. The court instead relied on the general
grounds for departure expressed elsewhere in the Guidelines:
Pursuant to United States Sentencing Guideline 5K2.0, a
factor may be listed as a specific offense characteristic
under one guideline but not under all guidelines. Simply
because it is not [listed] does not mean there may not be cir-
cumstances when that factor would be relevant to sentenc-
ing. The court finds that this is such a circumstance. The
defendant brandished a firearm in a crowded school class-
room and while accompanying a teacher through a school
hallway. . . .
J.A. 103. The first two sentences of the district court’s bench ruling
accurately paraphrase the language of § 5K2.0; the second two suc-
cinctly state the court’s findings in applying that guideline.2
2
Bellamy expresses some skepticism that the district court actually
based its departure decision on § 5K2.0, rather than § 2K2.5, asserting
that "[n]either the government or the PSR ever suggested that an upward
departure was warranted because Mr. Bellamy brandished a weapon in
connection with the felon-in-possession offense. . . ." Reply Br. of
Appellant, at 4. Of course, the district court was not bound to adopt the
probation officer’s recommendation or the Government’s legal argument.
We think it dispositive that (1) the court specifically referenced § 5K2.0
to the exclusion of § 2K2.5; and (2) a departure pursuant to § 2K2.5
alone would have been a futile exercise, inasmuch as the starting point
was Offense Level 8. Any reasonable departure under § 2K2.5 would
have fallen far short of the base offense level of 20 specified by § 2K2.1;
thus, as provided by the grouping rules, see supra Part II.A.1, the length
of Bellamy’s imprisonment would still have been governed by the latter
guideline. See supra note 1.
UNITED STATES v. BELLAMY 7
The district court’s rationale is easily understood. The felon-in-
possession guideline, § 2K2.1, does not distinguish the situation
involving brandishing of the subject firearm from that where the
weapon is passively possessed. Elsewhere in the Guidelines, however,
the distinction is recognized. For example, the guideline governing
aggravated assaults provides for a three-level enhancement "if a dan-
gerous weapon (including a firearm) was brandished." USSG
§ 2A2.2(b)(2)(C). In robbery cases, the enhancement is five levels "if
a firearm was brandished, displayed, or possessed." USSG
§ 2B3.1(b)(2)(C). The inclusion of brandishing as a specific offense
characteristic in certain guidelines strongly suggests that it would be
an encouraged factor supporting upward departures in appropriate
cases involving other offenses. See Koon, 518 U.S. at 96 ("If the spe-
cial factor is an encouraged factor, the court is authorized to depart
if the applicable Guideline does not already take it into account.").
It is hardly surprising that the district court, confronted with a situ-
ation where the defendant had displayed a loaded pistol in a class-
room full of eighth-graders and later pointed it at their teacher, found
this particular felon-in-possession case unusual, that is, outside the
"‘heartland’ . . . of typical cases embodying the conduct that each
guideline describes." USSG Ch. 1, Pt. A, intro. comment. 4(b). The
brandishing in this case thus satisfied the statutory requirement of an
"aggravating circumstance . . . of a kind, or to a degree, not ade-
quately 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. § 3553(b). The court below, "an-
alogiz[ing Bellamy’s conduct] to brandishing a firearm during a rob-
bery," J.A. 103, departed upward five levels.3
3
Bellamy contends that the district court was mistaken to treat his
brandishing as if it had occurred during a robbery rather than during an
aggravated assault, maintaining that the three-level departure suggested
by the latter, see discussion in text supra, would have more accurately
reflected the gravity of his conduct. We reject this contention. Once a
departure is determined to be appropriate in a particular case, the extent
thereof need only be "reasonable under the circumstances." United States
v. Terry, 142 F.3d 702, 707 (4th Cir. 1998) (citing 18 U.S.C.
§ 3742(f)(2)). The guideline under which Bellamy was sentenced speci-
fies a minimum four-level enhancement "[i]f the defendant used or pos-
8 UNITED STATES v. BELLAMY
B.
The difficulty in this case arises not from the district court’s sub-
stantive decision to depart, but instead from the procedural means by
which the departure was accomplished. In Burns v. United States, 501
U.S. 129 (1991), the Supreme Court held that
before a district court can depart upward on a ground not
identified as a ground for upward departure either in the pre-
sentence report or in a prehearing submission by the Gov-
ernment, [Federal Rule of Criminal Procedure] 32 requires
that the district court give the parties reasonable notice that
it is contemplating such a ruling. This notice must specifi-
cally identify the ground on which the district court is con-
templating an upward departure.
Id. at 138-39. The above excerpt prompts the question, "What,
exactly, is a ground?" Is it the factual basis underlying the proposed
departure, the legal predicate therefor found in the Guidelines, or
must it be nothing less than the latter as applied to the former?4
If a criminal defendant need only have notice of the facts upon
which the district court may base a departure, then surely the dictates
of Burns were satisfied here. The PSR specifically identified Bella-
my’s brandishing of the pistol as a factor potentially warranting an
sessed any firearm . . . in connection with another felony offense. . . ."
§ 2K2.1(b)(5). In this case, Bellamy did more than merely "use" or "pos-
sess" his pistol — he brandished it, creating an especially dangerous situ-
ation. Under the circumstances presented here, we cannot say that the
district court unreasonably decided that Bellamy’s actions justified an
additional level.
4
Compare Burns, 501 U.S. at 134 ("Federal Rule of Criminal Proce-
dure 32 provides for focused, adversarial development of the factual and
legal issues relevant to determining the appropriate Guidelines sen-
tence.") (emphasis added), with id. at 135 ("In the ordinary case, the pre-
sentence report or the Government’s own recommendation will notify
the defendant that an upward departure will be at issue and of the facts
that allegedly support such a departure.") (emphasis added).
UNITED STATES v. BELLAMY 9
upward departure, and the government’s motion with respect thereto
argues the point extensively. Indeed, on the two occasions where we
have vacated a defendant’s sentence in light of Burns, we found it dis-
positive that the court had ruled prior to giving any notice that it
would depart, or of the particular facts in support of its decision. See
United States v. Maddox, 48 F.3d 791, 798-99 (4th Cir. 1995) (down-
ward departure for "extraordinary family ties" vacated where issue
raised by district court sua sponte); United States v. Maxton, 940 F.2d
103, 106 (4th Cir. 1991) (upward departure for "extreme recidivism"
vacated as defendant lacked notice of court’s sua sponte ruling).
Assuming, however, that Burns also requires that the defendant be
notified in advance of the legal justification for the court’s ruling,
there was no deficiency in this case. As made plain by the Supreme
Court, the general provisions of the Guidelines (including the policy
statement embodied in § 5K2.0, on which the district court relied)
mandate that departures be reserved for cases outside the heartland,
and then only after the asserted basis has been identified and analyzed
as an encouraged, discouraged, or unmentioned factor. See Koon, 518
U.S. at 95-96. Every single departure must fulfill these criteria,
regardless of whether the impetus to depart originates from a judge,
prosecutor, or probation officer, or whether the possibility is sug-
gested by the Guidelines themselves.
Upon being informed in the PSR and by the Government that, pur-
suant to Application Note 4 of § 2K2.5, "an upward departure may be
warranted" for his having brandished a firearm, Bellamy should have
been prepared to argue not only the discrete defense that the Note was
inapplicable in his case, but also that — as a general matter and not-
withstanding its treatment in other sections of the Guidelines — the
brandishing in no way rendered his case exceptional. A different
result might obtain had Bellamy merely had notice of a potential
departure on general principles and the district court, for the first time
at the sentencing hearing, indicated that the Application Note would
somehow bear on its analysis. But that is not the situation we face
here. The Koon methodology inheres in each departure decision, and
defendants and their counsel have had notice of that fact since 1996.
Bellamy’s complaint that he was deprived of Burns notice is made
all the more unavailing by his failure to contemporaneously object to
10 UNITED STATES v. BELLAMY
the district court’s ruling. We may therefore disturb Bellamy’s sen-
tence only if we discover its imposition to have been plain error. See
Fed. R. Crim. P. 52(b); United States v. Paslay, 971 F.2d 667, 674
n.13 (11th Cir. 1992) (noting that, in absence of timely objection, a
Burns violation is ordinarily reviewable under the plain error stan-
dard). The necessary conditions are fulfilled if the court below (1)
committed "error"; that (2) was "plain"; and (3) affected "substantial
rights"; thereby implicating (4) the "fairness, integrity, or public repu-
tation of judicial proceedings" to the extent that we should exercise
our discretion to correct the oversight. See United States v. Strickland,
245 F.3d 368, 376 (4th Cir. 2001) (citations omitted).
As noted above, we perceive no error, plain or otherwise, in Bella-
my’s sentencing. Even if he were somehow led astray by the § 2K2.5
red herring proffered by the probation officer and argued by the Gov-
ernment, Bellamy was bound to return his focus to the basic tenets
regarding departures found in the Guidelines and explained by the
Supreme Court.5 We thus affirm the lower court’s five-level departure
premised on Bellamy having brandished his pistol at Spring Lake
Middle School.
III.
We turn finally to the district court’s decision to depart upward an
additional three levels upon finding that Bellamy’s Criminal History
Category of VI, albeit the maximum recognized by the Guidelines,
nonetheless under-represented his past criminal conduct and did not
adequately reflect his likelihood of recidivism. The possibility that
such a scenario would occur was acknowledged by the drafters:
The Commission contemplates that there may, on occasion,
be a case of an egregious, serious criminal record in which
even the guideline range for Criminal History Category VI
is not adequate to reflect the seriousness of the defendant’s
5
Alternatively, if Bellamy could demonstrate error on the part of the
court below, we would conclude that he suffered no resultant prejudice
such that a substantial right was affected. There is no indication that the
upward departure was substantively erroneous, or that the district court
would impose a different sentence on remand.
UNITED STATES v. BELLAMY 11
criminal history. In such a case, a departure above the guide-
line range for a defendant with Criminal History Category
VI may be warranted. . . . [T]he 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.
USSG § 4A1.3, p.s.; see United States v. Cash, 983 F.2d 558 (4th Cir.
1992) (prescribing analysis for § 4A1.3 departures based on inade-
quacy of Criminal History Category VI).
Bellamy maintains that these types of departures are "discouraged"
within the meaning of Koon because they are confined by the Guide-
line language to "egregious, serious" cases. Bellamy’s argument, of
course, begs the question. A court’s conclusion that even Category VI
fails to adequately describe a particular criminal history necessarily
entails a finding that the defendant’s record is both egregious and seri-
ous.6 In such a case, the upward departure pursuant to § 4A1.3 is actu-
ally encouraged, not discouraged. We are unpersuaded that the district
court abused its discretion in determining that Bellamy’s criminal his-
tory merited a three-level departure. See Koon, 518 U.S. at 100
(departure decisions reviewed under unitary abuse-of-discretion stan-
dard).
IV.
Pursuant to the foregoing, we affirm the sentence imposed on Bel-
lamy by the district court.
AFFIRMED
6
Here, the district court specifically "looked to the two non-scored
remote convictions found in paragraphs 10 and 11 of the presentence
report and assigned three criminal history points to each of these convic-
tions. . . ." J.A. 103. The PSR documents Bellamy’s guilty pleas to grand
larceny in 1978 and common law robbery in 1982. The former took place
at a convenience store, and the latter entailed the attempted armed rob-
bery of two golfers.
12 UNITED STATES v. BELLAMY
MICHAEL, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in the judgment and in all but part II of the majority opin-
ion. In part II the majority holds that because Bellamy knew that the
government was seeking an upward departure under § 2K2.5 of the
Sentencing Guidelines for brandishing during his offense of posses-
sion of a firearm in a school zone, he had sufficient notice that the
district court might depart under § 5K2.0 of the Guidelines for bran-
dishing in connection with the separate felon-in-possession offense.
The majority therefore concludes that the district court committed "no
error, plain or otherwise, in Bellamy’s sentencing." Ante at 10. I
respectfully disagree. The district court’s departure pursuant to
§ 5K2.0 constitutes plain error because the court failed to provide
notice of its intent to depart on that ground, as required by Burns v.
United States, 501 U.S. 129 (1991). Although the court committed
plain error, I concur in the judgment because Bellamy has not estab-
lished that the plain error affected his substantial rights.
Bellamy was convicted of two separate offenses: (1) possession of
a firearm in a school zone in violation of 18 U.S.C. § 922(q) and (2)
possession of a firearm by a felon in violation of 18 U.S.C. § 922(g).
After Bellamy was convicted, the government moved for, and the pre-
sentence report recommended, a departure under Application Note 4
of § 2K2.5 because he had brandished his pistol while committing the
offense of possession of a firearm in a school zone. Application Note
4 of § 2K2.5 provides, "Where the firearm was brandished, dis-
charged, or otherwise used, in a . . . school zone, and the cross refer-
ence from subsection (c)(1) [of § 2K2.5] does not apply, an upward
departure may be warranted." At sentencing the district court did not
consider the motion and recommendation for an upward departure
under § 2K2.5 for brandishing the firearm in a school zone. Instead,
the court departed under § 5K2.0 for brandishing in connection with
the separate felon-in-possession offense. Bellamy, however, did not
receive prior notice that a § 5K2.0 departure was being considered.
Neither the presentence report nor the government had recommended
a departure under § 5K2.0, and Bellamy did not learn of the court’s
intention to depart under that section until sentencing, when the court
departed on its own under § 5K2.0.
UNITED STATES v. BELLAMY 13
The district court’s failure to notify Bellamy of its intention to
depart under § 5K2.0 for the felon-in-possession offense constitutes
plain error. In Burns v. United States the Supreme Court held that:
before a district court can depart upward on a ground not
identified as a ground for departure either in the presen-
tence report or in a prehearing submission by the Govern-
ment, Rule 32 requires that the district court give the parties
reasonable notice that it is contemplating such a ruling. This
notice must specifically identify the ground on which the
district court is contemplating an upward departure.
501 U.S. 129, 138-39 (1991) (emphasis added). Notice is essential
because it allows the defendant a full and fair opportunity to chal-
lenge a proposed departure. See id. at 136 ("‘Th[e] right to be heard
has little reality or worth unless one is informed’ that a decision is
contemplated." (quoting Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950) (alteration in original)). For notice to
be effective, it must allow the opportunity "for focused, adversarial
development of the factual and legal issues relevant to determining
the appropriate Guidelines sentence." Id. at 134. Here, neither the pre-
sentence report nor the government’s motion suggested a departure
under § 5K2.0 for the felon-in-possession offense. Bellamy only had
notice of the recommendation to depart under § 2K2.5 for the separate
crime of possession of a firearm in a school zone. The district court
completely failed to provide notice that identified § 5K2.0 as the spe-
cific ground on which it intended to depart.
The majority contends that because Bellamy knew that the presen-
tence report and the government recommended a departure under
§ 2K2.5 for the offense of possession of a firearm in a school zone,
he had notice that the district court contemplated departure under
§ 5K2.0 for the separate felon-in-possession offense. The majority
says that in every departure decision (whether it be under § 2K2.5, the
general departure provision of § 5K2.0, or otherwise), a defendant
must be prepared to argue that his case does not fall outside the heart-
land of situations encompassed within an applicable guideline. See
ante at 9. Thus, the majority decides that Bellamy had notice of a
potential § 5K2.0 departure because he "should have been prepared to
argue not only the discrete defense [that Application Note 4 of
14 UNITED STATES v. BELLAMY
§ 2K2.5 did not apply], but also that—as a general matter and not-
withstanding its treatment in other sections of the Guidelines—the
brandishing in no way rendered his case exceptional." Ante at 9. In
other words, because Bellamy had to be prepared to argue that his
case was not exceptional for a § 2K2.5 departure on one offense, he
should have been prepared to argue that his case was not exceptional
for a § 5K2.0 departure on the other offense.
Even if, as the majority suggests, Bellamy was in a position to
argue that his case was not outside the heartland of felon-in-
possession cases, this does not mean that the district court did not
commit an error under Burns. The majority’s point, I believe, goes to
the question of whether the court’s failure to provide notice affected
Bellamy’s substantial rights. See United States v. Cedelle, 89 F.3d
181, 184 (4th Cir. 1996) (noting that under plain error analysis, the
"asserted defect in the trial proceedings must, in fact, be error; the
error must be plain; and, it must affect the substantial rights of the
defendant"). The district court failed to notify Bellamy of its intent to
depart under § 5K2.0 for the felon-in-possession offense, and this
constitutes plain error. See Burns, 501 U.S. at 138-39 (holding that
the notice of departure "must specifically identify the ground on
which the district court is contemplating an upward departure"
(emphasis added)). The majority’s assertion that Bellamy should have
been prepared to argue, as a general matter, that his case was unex-
ceptional only tends to show that the district court’s error did not prej-
udice Bellamy. Although Bellamy did not have notice of the court’s
intent to depart, he is not prejudiced (1) because he should have been
equipped to argue to the district court that his conduct was not outside
the heartland of felon-in-possession cases and (2) because he has not
been able to explain to us why his conduct was not outside this heart-
land.
Again, the Supreme Court made it clear in Burns that "before a dis-
trict court can depart upward on a ground not identified . . . either in
the presentence report or in a prehearing submission by the Govern-
ment," the court must give the parties reasonable notice that "specifi-
cally identif[ies]" the contemplated grounds for departure. Burns, 501
U.S. at 138-39. Because no notice was given on the § 5K2.0 depar-
ture, I would hold that the district court committed a Burns error.
Nevertheless, I agree with the majority’s conclusion that Bellamy is
UNITED STATES v. BELLAMY 15
not entitled to relief. To obtain relief under plain error analysis, Bel-
lamy must prove that the district court’s error "affected his substantial
rights, i.e., that it was prejudicial." United States v. Hastings, 134
F.3d 235, 240 (4th Cir. 1998). Here, Bellamy has failed to show that
the district court’s Burns error affected his substantial rights. First, as
the majority points out, Bellamy was in a position to argue that his
case was not outside the heartland of felon-in-possession cases. This
is because the argument he would have to make to avoid a departure
under § 2K2.5 is substantially the same as the argument he would
have to make to avoid a departure under § 5K2.0. In both instances,
Bellamy would have to show that his acts of brandishing a firearm in
a crowded school and pointing a firearm at a school teacher did not
constitute exceptional conduct. See United States v. Barber, 119 F.3d
276, 281 (4th Cir. 1997) ("[T]he sentencing court may depart only if
it concludes that the factor is present to such an exceptional or
extraordinary degree that it is outside the heartland of situations
encompassed within the applicable guideline."). Because the argu-
ments under § 2K2.5 and § 5K2.0 are essentially the same and Bel-
lamy had notice of a potential departure under § 2K2.5, he was in a
position to argue that his case was not exceptional under § 5K2.0.
Second, Bellamy has not offered any indication that his conduct was
within the heartland of felon-in-possession cases. For these reasons,
the district court’s error in failing to give the required notice did not
prejudice Bellamy. Accordingly, I concur in the judgment.