United States v. Hearne , 102 F. App'x 321 ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4979
TONY ANTHONY HEARNE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, District Judge.
(CR-03-217)
Submitted: May 28, 2004
Decided: June 29, 2004
Before WIDENER and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
2 UNITED STATES v. HEARNE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Tony Anthony Hearne pled guilty to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2000), and possession of
counterfeit reserve notes, 18 U.S.C.A. § 472 (West Supp. 2004). The
district court departed upward from the applicable guideline range
and imposed a sentence of 205 months imprisonment. The departure
was based on the court’s decision that criminal history category VI
did not adequately reflect Hearne’s past criminal conduct or the likeli-
hood that he would commit future crimes and his use of the illegally
possessed firearm in a manner that created a significant risk of death
or serious bodily injury to multiple individuals. U.S. Sentencing
Guidelines Manual §§ 4A1.3, p.s., 2K2.1, comment. (n.16(4)) (2003).
Hearne appeals his sentence. We affirm.
On January 26, 2002, Hearne threatened David Horne by putting
two firearms to his chest. Horne disarmed Hearne, who left but
returned in half an hour with another firearm. Hearne found Horne
standing in front of his house and began shooting at him. About ten
people were in the immediate vicinity; no one was injured. Horne
described the two guns he took from Hearne during the first incident
as a MAC-9 and a MAC-10. Later the same day, in a car driven by
Michelle Helms, Hearne followed Lindsey Lentz, his former girl-
friend, and shot at her. Lentz drove to a police station. When Hearne
arrived, the officers obtained Helms’ consent to search the car. They
found a Ruger handgun under the front seat, six grams of crack in the
console, and fourteen counterfeit $100 federal reserve notes in
Hearne’s jacket. At the time, Hearne had been convicted of assaulting
Lentz and was awaiting sentencing.
The probation officer recommended the enhanced base offense
level of 26 for the felon-in-possession count because the offense
involved a semiautomatic assault weapon described in 18 U.S.C.
UNITED STATES v. HEARNE 3
§ 921(a)(30) (2000) and Hearne had two predicate convictions. USSG
§ 2K2.1(a)(1). With other enhancements and an adjustment for accep-
tance of responsibility, the recommended offense level was 29.
Hearne had seventeen criminal history points, which placed him in
criminal history category VI. The probation officer recommended an
upward departure from the guideline range pursuant to USSG § 4A1.3
because criminal history category VI understated the seriousness of
Hearne’s past criminal conduct and the likelihood that he would com-
mit future crimes, USSG § 4A1.3 and because Hearne created a sub-
stantial risk of death or serious bodily injury to multiple individuals
when he shot at Horne. Application Note 16(4) to § 2K2.1 provides
that an upward departure may be warranted when the offense creates
such a risk. The government moved for a departure on both grounds.
At the sentencing hearing, Horne testified that he was not sure of
the make of the two firearms he took from Hearne, but that they were
"Uzi-like guns," with an ammunition clip. Horne said someone had
run off with one of the guns after he threw it on the ground; the sec-
ond gun he had handed to his brother. He was not sure what happened
to either weapon. Hearne sought to impeach Horne’s credibility by
presenting testimony from an agent of the Bureau of Alcohol,
Tobacco, and Firearms. The agent testified that he had been given an
Intratec TEC-9 firearm fifteen months after the incident by a man
who said he got it from Horne and that it came from Tony Hearne.
Horne testified that he knew the man but denied giving him a gun.
The district court determined that Horne was a credible witness and
that his testimony established that Hearne threatened him with semi-
automatic assault weapons, which was sufficient for application of the
enhanced base offense level. The court also decided that an upward
departure of one offense level was warranted pursuant to § 4A1.3 and
§ 2K2.1.
On appeal, Hearne first contests the enhancement for possession of
a semiautomatic assault weapon. The district court’s factual finding
that Hearne possessed a semiautomatic assault weapon of the kind
described in 18 U.S.C. § 921(a)(30) is reviewed for clear error.
United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998). The govern-
ment has the burden of proving facts that may enhance the sentence
by a preponderance of evidence. United States v. Urrego-Linares, 879
4 UNITED STATES v. HEARNE
F.2d 1234, 1239 (4th Cir. 1989). A "semiautomatic assault weapon,"
as defined in § 921(a)(30)(A), includes a variety of specific weapons,
including any Uzi, the Intratec TEC-9, and the SWD M-10, as well
as copies or duplicates of these weapons.1
Hearne argues on appeal that Horne’s testimony was not reliable
because the government failed to establish that he was knowledgeable
about firearms. Hearne also maintains that Horne was not a credible
witness because he claimed that he did not know what happened to
the guns. However, the district court determined that Horne’s testi-
mony was credible and that it established by a preponderance of the
evidence that Hearne possessed a MAC-10 semiautomatic assault
weapon. The district court’s findings based on its assessment of the
credibility of a witness is entitled to great deference. United States v.
Hassanzadeh, 271 F.3d 574, 580 (4th Cir. 2001). We conclude that
the court did not clearly err in finding that Hearne possessed a MAC-
10 or similar semiautomatic assault weapon and in applying the
enhanced base offense level.
Hearne also challenges the upward departure. A sentencing court
may depart from the guideline range only if the court finds an aggra-
vating or mitigating factor of a kind, or to a degree, not adequately
considered by the Sentencing Commission. 18 U.S.C.A. § 3553(b)
(West Supp. 2004); Koon v. United States, 518 U.S. 81, 98 (1996).
The appeals court reviews the district court’s factual determinations
underlying sentencing for clear error. United States v. Rybicki, 96
F.3d 754, 757 (4th Cir. 1996). We review the district court’s decision
to depart de novo. 18 U.S.C.A. § 3742(e) (West Supp. 2003); see
United States v. Stockton, 349 F.3d 755, 764 n.4 (4th Cir. 2003) (dis-
cussing the Prosecutorial Remedies and Tools Against the Exploita-
tion of Children Today Act of 2003 ("PROTECT Act"), Pub. L. No.
108-21, § 401(d)(2), 117 Stat. 650, 670, and the application of de
novo, rather than abuse of discretion, standard of review to district
court’s decision to depart from the guideline range), cert. denied, 124
S. Ct. 1695 (2004). The PROTECT Act also requires the district court
1
Military Armament Corporation (MAC) designed a submachine gun
in the early 1970’s which has been copied and modified by other manu-
facturers, including SWD, Incorporated. William Ehringer, A MAC His-
tory Lesson, FirearmsID.com (Jan. 2001), at http://www.firearmsid.com.
UNITED STATES v. HEARNE 5
to provide its reasons for departure with specificity in the judgment
and commitment order. See PROTECT Act, § 401(c)(1), 117 Stat. at
669; 18 U.S.C.A. § 3553(c)(2) (West Supp. 2004).
An upward departure is encouraged if the defendant’s criminal his-
tory category does not adequately reflect the seriousness of his past
criminal conduct or the likelihood that he will commit further crimes.
Hearne’s prior record included three misdemeanor assaults (one with
a knife) for which no criminal history points were awarded because
the sentences were outside the applicable time period. The probation
officer recommended two points for Hearne’s 2002 convictions of
misdemeanor assault with a deadly weapon, assault on a female, and
misdemeanor communicating threats, all of which involved an assault
on Lindsey Lentz that occurred before the instant offense. Because
Hearne’s conviction was on appeal to the North Carolina Superior
Court, the district court decided that no criminal points should be
awarded for the conviction.
Hearne’s criminal record showed a pattern of repeated criminal
conduct, particularly assaults, and thus demonstrated that he had a
high likelihood of recidivism.2 In addition, Application Note 8 to
USSG § 4A1.2 provides that the sentencing court may consider sen-
tences imposed outside the applicable time period if they are evidence
of criminal conduct that is similar to the instant offense. Hearne
received no points for three outdated sentences for assault, and the
instant offense involved assaults by Hearne against Horne and Lentz.
The court may also consider whether the defendant was pending trial
or sentencing on another charge at the time he committed the instant
offense. USSG § 4A1.3(a)(2)(D). When Hearne committed the instant
offense on January 26, 2002, he was pending sentencing for the prior
assault on Lentz. We therefore conclude that a one-level upward
departure was warranted.
Hearne points out that the district court failed to give specific writ-
ten reasons for the departure pursuant to § 4A1.3 as are now required.
2
Hearne had been arrested for two rapes, eleven assaults, and three
instances of communicating threats; in each case he was acquitted or the
charges were dismissed. However, the defendant’s arrest record may not
be the basis for an upward departure. USSG § 4A1.3(a)(3).
6 UNITED STATES v. HEARNE
USSG § 4A1.3(c)(2). We note that 18 U.S.C.A. § 3742(f)(2) (West
Supp. 2004), provides that, "if the sentence is outside the applicable
guideline range and the district court failed to provide the required
statement of reasons in the order of judgment and commitment . . .
[the court of appeals] shall state specific reasons for its conclusions."
In accord with this provision, we have stated the specific reasons why
the upward departure was warranted.
We also affirm the court’s decision to depart on the separate
ground that Hearne’s conduct created a risk of death or serious bodily
injury to multiple individuals. See USSG § 2K2.1, comment.
(n.16(4)). Horne testified at sentencing that about ten people were
standing in his yard when Hearne began shooting at him. Hearne con-
tends that a departure on this ground was unwarranted because his
conduct was adequately considered by the enhancement under
§ 2K2.1(b)(5) for use of a firearm in connection with another felony,
and because he did not injure anyone. His argument fails because the
enhancement he received under § 2K2.1(b)(5) was for use of a fire-
arm in connection with his counterfeiting offense; it did not take into
account his shooting into a crowd. The departure was based on an
encouraged factor and justified by the facts. Because the district court
did not provide specific reasons in the judgment order for its depar-
ture under § 2K2.1, we have again stated with specificity why the
departure was warranted.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED