United States v. Morris , 59 F. App'x 514 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4683
KEVIN JEROME MORRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-47)
Argued: December 6, 2002
Decided: January 17, 2003
Before LUTTIG and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
ARGUED: Eric Jason Foster, LAW OFFICE OF RICK FOSTER,
Asheville, North Carolina, for Appellant. Gretchen C.F. Shappert,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
2 UNITED STATES v. MORRIS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The government charged Kevin Jerome Morris with various
offenses in connection with a series of armed robberies in the Cleve-
land County, North Carolina area. Morris pleaded guilty to a single
count of unlawful possession of a firearm in violation of 18 U.S.C.A.
§ 922(g)(1) (West 2000), but was acquitted by a jury of all remaining
charges related to the robberies. The district court imposed a 96-
month sentence, which Morris now appeals.
Morris first claims that the district court erred in denying his
motion to withdraw his guilty plea because he possessed the gun in
self defense. We review the district court’s denial of a motion to with-
draw a guilty plea for abuse of discretion. See United States v. Uba-
kanma, 215 F.3d 421, 424 (4th Cir. 2000). The defendant bears the
burden of demonstrating a fair and just reason for the withdrawal. See
Fed. R. Crim. P. 32(e); see also Ubakanma, 215 F.3d at 424. We have
reviewed the record and, applying the factors relevant to determining
whether the defendant has met this burden, we cannot conclude that
the district court abused its discretion by denying the motion. See
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
Morris next asserts that the government failed to prove the weapon
he possessed traveled in interstate commerce. However, Morris’s
guilty plea constituted an admission of all material elements of the
crime. See McCarthy v. United States, 394 U.S. 459, 466 (1969);
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). Because
he pleaded guilty, Morris cannot challenge the sufficiency of the evi-
dence providing the factual basis for his plea.
We vacate Morris’s sentence, however, and remand to the district
court for resentencing because of our inability to discern the basis for
an increase in sentence. In the presentence report ("PSR"), the proba-
UNITED STATES v. MORRIS 3
tion officer recommended a base offense level of 20 under U.S.S.G.
§ 2K2.1(a)(4), with a 3-level reduction for acceptance of responsibil-
ity, resulting in a total offense level of 17. With 13 criminal history
points, Morris was assigned a criminal history category of VI, and the
applicable sentencing range was 51 to 63 months. The government
objected to the PSR, contending that Morris should be given a 4-level
enhancement under U.S.S.G. § 2K2.1(b)(5) because the firearm was
used in connection with another felony. The government also filed a
motion seeking an upward departure, arguing that Morris’s criminal
history did not adequately reflect the seriousness of his past criminal
conduct or the likelihood that he would commit future crimes. See
U.S.S.G. § 4A1.3.
At Morris’s sentencing hearing, the government presented evidence
in support of both the § 2K2.1(b)(5) enhancement and the § 4A1.3
upward departure. At the conclusion of the hearing, the district court
recited the evidence presented by the government, assigned a total
offense level of 21, and sentenced Morris to 96 months imprisonment.
The court mentioned both the enhancement and the upward departure,
but apparently did not grant both. Upon close scrutiny of the record,
we cannot discern the basis for the court’s sentencing decision.
Although the government’s evidence may well support a four-level
enhancement under § 2K2.1(b)(5) or an upward departure under
§ 4A1.3, Morris is entitled to know the basis for the increased sen-
tence so that he has a fair opportunity to challenge the rationale that
supports it. Likewise, we need clarity from the sentencing judge in
order to permit adequate review of the court’s application of the
guidelines. If, as the government argues, the district court intended to
grant the government’s motion for an upward departure, the court
must comply with the requirements of United States v. Cash, 983 F.2d
558 (4th Cir. 1992), which calls for a structured, incremental
approach to departures. Id. at 561 nn. 6 & 7. Thus, when a district
court decides to depart, it should "move to successively higher cate-
gories only upon finding that the prior category does not provide a
sentence that adequately reflects the seriousness of the defendant’s
criminal conduct." Id. at 561; see also United States v. Harrison, 58
4 UNITED STATES v. MORRIS
F.3d 115, 119 (4th Cir. 1995). Accordingly, we vacate the judgment
and remand for resentencing.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED