United States v. Cutright ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 00-4508
JOHNNIE D. CUTRIGHT,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CR-99-9)
Submitted: October 20, 2000
Decided: November 6, 2000
Before WIDENER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Melvin W. Kahle, Jr., United States Attorney, Sherry L. Muncy,
Assistant United States Attorney, Elkins, West Virginia, for Appel-
lant. Timothy M. Sirk, Elkins, West Virginia, for Appellee.
2 UNITED STATES v. CUTRIGHT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Johnnie Dale Cutright pled guilty to one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
(1994). The United States appeals the district court’s decision to
depart below the Sentencing Guidelines range. We affirm the convic-
tion, but vacate the sentence and remand for further proceedings con-
sistent with this opinion.
In November 1998, Cutright, who was twenty-five years old, was
stopped for speeding. The police officer observed that Cutright was
transporting a pistol and two long guns, all of which were unloaded,
and several rounds of ammunition. Cutright was also found to be in
possession of less than fifteen grams of marijuana. According to
Cutright, he was returning from a firing range. In 1993, when Cutright
was nineteen years old, he was convicted for breaking and entering
a dwelling, grand larceny, and breaking and entering a concession
stand.
At sentencing, because Cutright’s conviction for burglary was for
breaking and entering a dwelling, it was categorized as a crime of vio-
lence and he was assigned a base offense level of 20. See U.S. Sen-
tencing Guidelines Manual §§ 2K2.1(a)(4)(A), 4B1.2(a)(2) (1998).
The presentence investigation report ("PSR") recommended a one-
level increase to the base offense level because three firearms were
involved in the offense. See USSG § 2K2.1(b)(1)(A). The PSR did
not recommend a reduction in the base offense level for acceptance
of responsibility and noted that while on bond, Cutright used mari-
juana. In addition to the convictions listed above, the PSR noted that
Cutright had prior convictions for speeding, driving without proof of
insurance, failing to yield, driving on a suspended license, misdemea-
nor possession of marijuana, and misdemeanor shoplifting. Cutright
was placed in criminal history category II. The PSR further noted that
UNITED STATES v. CUTRIGHT 3
an upward departure may be warranted due to Cutright’s criminal his-
tory category not adequately reflecting the seriousness of Cutright’s
past criminal conduct.
At sentencing, the district court, without objection, reduced
Cutright’s base offense level three levels for acceptance of responsi-
bility. Accordingly, Cutright’s sentencing guideline range was thirty
to thirty-seven months’ imprisonment. The court stated that it
intended to depart downward under USSG § 5K2.0. The court further
stated that departure was warranted under USSG § 5K2.11 because
Cutright’s conduct did not cause or threaten the harm sought to be
prevented by the statute. Over the United States’ objection and pursu-
ant to USSG §§ 5K2.0, 5K2.11, the district court departed from the
Sentencing Guidelines and further reduced Cutright’s base offense
level six levels based on the following findings: (1) there was no evi-
dence that Cutright was dangerous, and there was no violence
involved in the burglary incident; (2) Cutright was only nineteen
years old when he committed the burglary and served only one month
incarceration in a center for youthful offenders; (3) there was no evi-
dence that Cutright possessed the firearms with any intent to engage
in dangerous or unlawful activity because the firearms were found
unloaded and in plain view; (4) the firearms were of a type used for
hunting and other sporting purposes and were not stolen; (5) Cutright
assisted police in determining that the firearms were unloaded; (6)
Cutright had strong family ties and responsibilities to his long-time
girlfriend and the couple’s six-year-old daughter; and (7) Cutright
was employed and his income provided for the family. The court
stated that these factors were not adequately considered in the Sen-
tencing Guidelines. With a six-level reduction to the base offense
level, Cutright’s sentencing guideline range was twelve to eighteen
months’ imprisonment. Cutright was sentenced to twelve months and
one day to be served at a halfway house and three years’ supervised
release. The United States filed a timely notice of appeal.
A district court’s decision to depart downward is reviewed for
abuse of discretion. See United States v. Pearce, 191 F.3d 488, 492
(4th Cir. 1999). "[W]hether a factor is a permissible basis for depar-
ture under any circumstances is a question of law." Koon v. United
States, 518 U.S. 81, 100 (1996). A district court "abuses its discretion
when it makes an error of law." Id. Under USSG § 5K2.0, a departure
4 UNITED STATES v. CUTRIGHT
outside the Sentencing Guidelines range may be warranted if "the
court finds ‘that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into consider-
ation by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that described.’" (quot-
ing 18 U.S.C. § 3553(b) (1994)).
In order for a district court to depart, it must first consider whether
the factor it believes warrants a departure is not to be used for such
a purpose. See USSG §§ 5H1.1 to 5H1.12. If the Commission has
provided that a given factor is encouraged as a basis for departure, the
court may depart if the factor is not already considered in the applica-
ble guideline. See Koon, 518 U.S. at 916; United States v. Hairston,
96 F.3d 102, 105 (4th Cir. 1996). If it is discouraged that the factor
be used to depart or if the factor is encouraged as a basis for departure
and taken into account by the Sentencing Guidelines, then the court
may depart "only if the factor is present to an exceptional degree or
in some other way makes the case different from the ordinary case
where the factor is present." Koon, 518 U.S. at 96. If the factor is not
mentioned at all in the Sentencing Guidelines, a departure may be
warranted after the court considers the "‘structure and theory’ of the
relevant individual guideline and the Guidelines as a whole, bearing
in mind that departures on the basis of factors not mentioned in the
Guidelines will be ‘highly infrequent.’" Hairston, 96 F.3d at 106(quoting Koon, 518 U.S. at 96).
Considering the structure of the Sentencing Guidelines, we find
that the district court improperly considered Cutright’s purported
innocent purpose for possessing the firearms. The Sentencing Guide-
lines permit a reduction to the base offense level if the firearms are
possessed "for lawful sporting purposes or collection." USSG
§ 2K2.1(b)(2). However, the Sentencing Guidelines specifically pro-
hibit the district court from reducing a base offense pursuant to this
subsection if the defendant’s base offense level was predicated on a
crime of violence as set forth in USSG § 2K2.1(a)(4)(A). See USSG
§ 2K2.1(b)(2). To consider this factor as a reason for a downward
departure eviscerates the language "other than a defendant subject to
[USSG § 2K2.1(a)(4)]." See USSG § 2K2.1(b)(2).
In addition, we find that the district court improperly considered
the underlying facts of Cutright’s predicate felony for burglary. Gen-
UNITED STATES v. CUTRIGHT 5
erally, courts are instructed not to review the conduct underlying the
predicate offense in determining whether the defendant’s conduct was
violent. See, e.g., United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.
1998) (to determine whether a prior felony is a crime of violence,
courts must use a categorical approach). Cutright’s predicate felony
offense was defined by the Sentencing Guidelines as a crime of vio-
lence. Burglary of a dwelling is a crime of violence because of the
potential for violence. See USSG § 4B1.2(a)(2) (burglary of a dwell-
ing is grouped with other offenses that present "a serious potential
risk of physical injury to another."). Furthermore, had Cutright’s
predicate felony not been defined as a crime of violence, he would
have received a lower base offense level. See USSG § 2K2.1(a).
Insofar as the district court relied on Cutright’s age, family ties,
and employment history, all discouraged factors for departing, we
find nothing present to an exceptional degree or anything different
from the ordinary case.* See USSG §§ 5H1.1, 5H1.5, 5H1.6; Koon,
518 U.S. at 96. Here, Cutright was an adult at nineteen years of age
and a high school graduate when he committed the predicate felony.
In addition, he was twenty-five years old when he committed the
instant offense and only two years and eight months removed from
probation for the predicate felony. He lived with his girlfriend and
six-year-old daughter for five years. There is no evidence that he was
the sole provider for the household.
This case is readily distinguishable from United States v. One Star,
9 F.3d 60 (8th Cir. 1993), a case used by the district court as guidance
for departing. Although the defendant was convicted for the same
offense as Cutright, the predicate felony in One Star occurred more
than fifteen years before the defendant was found to possess a fire-
arm. The defendant was employed with the same employer for over
eleven years. In addition, he was the sole financial supporter for the
nine members of his extended family.
*At sentencing, the district court observed that Cutright had "a good
employment history with his current employer and his income is essen-
tial to the well being of his family." (J.A. at 62). The PSR noted that
Cutright was unemployed after quitting his job after only about four
months’ employment. The PSR further noted that Cutright’s girlfriend,
with whom he resided along with their six-year-old daughter, was
employed and paid for the monthly expenses.
6 UNITED STATES v. CUTRIGHT
The district court departed on the basis of One Star’s employment
record, family and community ties and responsibilities, and commit-
ment to public service. The Court of Appeals upheld the departure
and did not disturb the district court’s findings that some of the fac-
tors, although not generally relevant when considering a departure,
were sufficiently unusual in kind or degree to warrant departure. See
id. at 61. Cutright’s employment record, family and community ties
and responsibilities pale in comparison.
In addition, we find that the district court erred by finding that a
departure was warranted under USSG § 5K2.11. Section 5K2.11
authorizes a court to depart if the defendant’s unlawful conduct "may
not cause or threaten the harm or evil sought to be prevented by the
law proscribing the offense at issue." This provision should be inter-
preted "narrowly." United States v. Warner, 43 F.3d 1335, 1338 (10th
Cir. 1994). The Sentencing Guidelines give the following two exam-
ples warranting a departure: (1) a war veteran possessing a machine
gun or grenade as a trophy; (2) a school teacher possessing controlled
substances for a drug education program. See USSG § 5K2.11. In
Warner, the court distinguished the defendant’s situation from the
above examples by stating that "[a]lthough the Sentencing Commis-
sion suggests a military veteran’s innocent possession of a trophy
machine gun at home may warrant special dispensation in sentencing,
that suggestion cannot be extended to someone who was in possession
of a machine gun and ammunition in his car on an interstate high-
way." Warner, 43 F.3d at 1338.
In United States v. Murray, 89 F.3d 459 (7th Cir. 1996), the defen-
dant was convicted of being a felon in possession of a firearm. The
firearm, a loaded handgun, was found after police stopped the defen-
dant for a traffic violation. The police also seized a small amount of
crack cocaine. The court stated that the defendant was not entitled to
a downward departure under USSG § 5K2.11 because the defendant’s
"possession of a firearm in an automobile around midnight, with
crack cocaine in his car, doesn’t come close to the sort of mitigating
situation reviewed by the Eighth Circuit in One Star." Murray, 89
F.3d at 463.
On the other hand, in United States v. White Buffalo, 10 F.3d 575(8th Cir. 1993), the court upheld a departure under USSG § 5K2.11.
UNITED STATES v. CUTRIGHT 7
The defendant was convicted of possessing an unregistered firearm,
an unloaded single-shot bolt action rifle seized when the defendant
was stopped for a traffic violation. The court found that departure was
warranted because the defendant did not use the firearm in a violent,
threatening or offensive manner, the firearm was not loaded, the
defendant did not have a criminal record, and he lived in a remote
area of the reservation where his use of the firearm to hunt did not
pose a threat to anyone else. See id. at 576. Cutright’s circumstances
are much different. Unlike the defendant in White Buffalo, Cutright
was convicted of being a felon in possession of firearms based upon
a prior felony conviction for a crime of violence. In addition, when
he was stopped for speeding and found to possess the firearms, he
was also in possession of a controlled substance.
The Sentencing Guidelines state that the Cutright’s stated reason
for possessing the firearms should not be considered if the defen-
dant’s predicate felony was a crime of violence. See USSG
§ 2K2.1(b)(2), comment. (n.10). Additionally, a conviction under
§ 922(g) focuses on the defendant’s status as convicted felon, not on
the reason for possessing the firearm. See United States v. Reynolds,
215 F.3d 1210, 1214 (11th Cir. 2000) (per curiam). The statute’s pur-
pose is to prevent persons, who have demonstrated their inability to
conform their conduct to the law, having control over dangerous
weapons. See Barrett v. United States, 423 U.S. 212, 218, 220-21
(1976) (interpreting a prior version of this section). Cutright demon-
strated his inability to conform himself to the law because of his prior
convictions and because he was in possession of marijuana when he
was arrested and found to have used marijuana when he was released
on bond. Thus, Cutright’s possession of three firearms was precisely
the harm sought to be prevented by § 922(g).
Accordingly, we find that the court erred by departing below the
Sentencing Guidelines range. Although we affirm the conviction, we
vacate the sentence and remand for resentencing consistent with this
opinion. 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 IN PART,
AND REMANDED