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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8396
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH ALLEN FORD,
Defendant-Appellant.
_______________________________________________________
Appeal from the United States District Court for
the Western District of Texas
_______________________________________________________
(July 12, 1993)
Before REAVLEY, KING and GARWOOD, Circuit Judges.
REAVLEY, Circuit Judge:
This is another appeal of the application of the sentencing
guidelines.
Keith Allen Ford fatally shot Joe Coffman when the latter
showed up at a mutual friend's house with a gun, "looking for"
Ford. Ford, who had previously been convicted of four controlled
substances offenses, pled guilty to one count of possession of a
firearm by a convicted felon. 18 U.S.C. § 924(e). Ford was
sentenced to 400 months imprisonment and five years supervised
release, based in part on the district court's characterization
of his possession of a firearm as a "crime of violence" for
purposes of U.S.S.G. § 4B1.1.

On prior appeal, this court held that the district court
erred by characterizing Ford's possession of a firearm as a
"crime of violence" for purposes of computing his base offense
level, and vacated and remanded the case for resentencing. On
remand, the district court determined that Ford's base offense
level was 34 (not 37, as it had previously determined). U.S.S.G.
§ 4B1.4(b)(3)(A). Combined with his criminal history category
VI, this yielded a guideline imprisonment range of 262 to 327
months. After upwardly departing on the grounds that (1) Coffman
was killed by the firearm in Ford's possession, and (2) Ford's
criminal history category underrepresented his actual criminal
behavior and recidivism,1 the district court sentenced Ford to
360 months imprisonment, plus five years supervised release.
Ford appeals the district court's sentencing on remand. We
affirm.
I. DISCUSSION
Ford's sentence must be upheld unless it was imposed in
violation of the law, resulted from an incorrect application of
the sentencing guidelines, or is unreasonable and outside the
range of the applicable guidelines. 18 U.S.C. § 3742(f); United
States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.), cert. denied,
113 S. Ct. 293 (1992). Interpretation of the guidelines is a
question of law, subject to de novo review. Garcia, 962 F.2d at
481. Factual findings made in the course of applying the
1
The district court determined that Ford's criminal
history score was 20. Criminal History Category VI includes all
criminal history scores of 13 or above. U.S.S.G. ch. 5, table A.
2

guidelines are subject to review only for "clear error." 18
U.S.C. § 3742(e); Garcia, 962 F.2d at 481.
A.
FORD'S BASE OFFENSE LEVEL.
Section 4B1.4(b)(3) provides that:
The offense level for an armed career criminal is the
greate[r] of:
. . . .
(A)
34, if the defendant used or possessed the firearm or
ammunition in connection with a crime of violence or
controlled substance offense, as defined in § 4B1.2(1),
or if the firearm possessed by the defendant was of a
type described in 26 U.S.C. § 5845(a); or
(B)
33, otherwise.
On remand, the district court determined that Ford's base offense
level, under § 4B1.4(b)(3)(A), was 34 because he had possessed
the firearm "in connection with a crime of violence." Id. This
determination was in accord with dicta in our prior panel's
opinion.
Ford challenges this determination, based upon U.S.S.G. §
4B1.2 (Definitions of Terms Used in Section 4B1.1) Application
Note 2, which reads, in part:
The term "crime of violence" does not include the
offense of unlawful possession of a firearm by a felon.
Where the instant offense is the unlawful possession of
a firearm by a felon . . . and . . . the defendant is
sentenced under the provisions of 18 U.S.C. § 924(e),
§ 4B1.4 (Armed Career Criminal) will apply.
Ford argues that our prior holding that his charged conduct did
not constitute a "crime of violence," coupled the fact that there
were no controlled substances nor § 5845(a) firearms involved,
requires a finding that his base offense level is 33, as provided
by § 4B1.4(b)(3)(B).
3

We disagree. While § 4B1.1 explicitly calculates the base
offense level based on "the instant offense of conviction," §
4B1.4(b)(3) does not. The language used in the latter section is
"if the defendant used . . . the firearm . . . in connection with
a crime of violence . . ." (emphasis added). Here, while Ford's
"instant offense of conviction" -- possession of a firearm by a
felon -- did not constitute a "crime of violence" for purposes of
§ 4B1.1, his possession of the Mossberg shotgun was certainly "in
connection with a crime of violence" -- to wit, the fatal
shooting of Joe Coffman. Therefore, we hold that the district
court properly applied U.S.S.G. § 4B1.4(b)(3)(A) and correctly
calculated Ford's base offense level at 34.
B.
FORD'S CRIMINAL HISTORY SCORE.
This court will review de novo the district court's finding
that Ford's prior convictions were unrelated. See Garcia, 962
F.2d at 481; see also United States v. Lopez, 961 F.2d 384, 385
(2d Cir. 1992); United States v. Houser, 929 F.2d 1369, 1373 (9th
Cir. 1990).
The PSR and the district court both determined that Ford had
a criminal history score of 20, placing him well above the
minimum score for Category VI, the highest possible category.
Twelve of the 20 points thus assessed were a result of the
district court treating four prior state-court methamphetamine
delivery convictions as "[p]rior sentences imposed in unrelated
cases," Id. § 4A1.2(a)(2), for purposes of § 4A1.1(a).
4

Section 4A1.2(a)(2) provides: "Prior sentences imposed in
unrelated cases are to be counted separately. Prior sentences
imposed in related cases are to be treated as one sentence for
purposes of § 4A1.1(a), (b), and (c)." The official commentary
to § 4A1.2 states:
Prior sentences are not considered related if they were
for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense).
Otherwise, prior sentences are considered related if
they resulted from offenses that (1) occurred on the
same occasion, (2) were part of a single common scheme
or plan, or (3) were consolidated for trial or
sentencing.
U.S.S.G. § 4A1.2 app. note 3.
Ford argues that his four prior state-court methamphetamine
delivery convictions should be considered "related" for purposes
of §§ 1B1.3 and 4A1.2(a) & n.3. Based upon Garcia, supra, we
disagree.
In Garcia, this court considered the "relatedness" of two
prior state-court convictions. There, both convictions were for
separate instances of heroin delivery over a nine-day period "in
the same vicinity." In addition, the two indictments had
consecutive numbers and were filed on the same day, the same
attorney represented Garcia in both causes, the causes were heard
in the same court at the same time, the plea agreements for each
cause referred to the other, and the ten-year sentences for each
conviction were concurrent. This court found little merit to
Garcia's argument that the transactions were part of a "common
scheme or plan":
5

Although the facts surrounding the cases may be
similar, similar crimes are not necessarily related
crimes. . . .
Garcia executed two distinct, separate deliveries
of heroin. Although the crimes may have been
temporally and geographically alike, they were not part
of a common scheme or plan . . . .
962 F.2d at 482 (citations omitted). As for Garcia's arguments
that the two convictions were "related" because they were
"consolidated for trial and sentencing," this court concluded:
This court has already rejected the proposition that
cases must be considered consolidated simply because
two convictions have concurrent sentences. Likewise,
we also rejected the notion that sentencing on two
distinct cases on the same day necessitates a finding
that they are consolidated. . . .
Although the concurrent sentences and sentencing
on the same day are factors to consider when evaluating
whether cases are consolidated, we see little reason
automatically to consider cases to be consolidated
where state law is to the contrary. Instead, a
district court must determine for itself whether the
crimes in fact were related. . . . [T]he evidence does
not establish that the state cases were consolidated
for trial or sentencing. The state did not move to
consolidate the cases; and the state court treated the
two convictions separately, entering separate
sentences, judgments and plea agreements.
Id. at 482-83 (citations and footnote omitted).
Garcia disposes of most of Ford's complaints. And, to the
extent that Ford's situation in distinguishable from that in
Garcia, that distinction is not significant enough to find that
the prior convictions were "related." While all four of Ford's
charges arose from sales to the same undercover officer during a
six-day period, whereas Garcia made two sales to two different
officers over a nine-day period, and two of Ford's four sales
occurred on the same date and at the same motel, whereas Garcia's
6

sales occurred in distinct locations, these are distinctions
without a difference. Each sale was a separate transaction,
separated by hours, if not days. The fact that the buyer was the
same did not make the sales "related" any more than if Ford made
four separate trips to the same H.E.B. in one week to buy
groceries -- there was no common scheme or plan, simply
convenience and experience.
C.
PROPRIETY OF THE DISTRICT COURT'S UPWARD DEPARTURE.
The sentencing court may impose sentences outside the range
established by the sentencing guidelines in cases presenting
"aggravating or mitigating circumstance[s] of a kind, or to a
degree, not adequately 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;
U.S.S.G. § 5K2.0; United States v. Fitzhugh, 984 F.2d 143, 147
(5th Cir. 1993). The district court must state on the record its
reasons for departure from the guideline range. Fitzhugh, 984
F.2d at 147 (citing 18 U.S.C. § 3553(c)). And any such departure
must be reasonable. Id.
The district court departed upward from the guideline range
of 262-327 months to impose a sentence of 360 months, based upon
the facts that (1) Coffman's death "resulted from [Ford's]
involvement in the offense," and (2) Ford's "Criminal History
Category VI under-represents his criminal behavior and recidivism
to criminal involvement."
1.
Upward Departure Based Upon Resulting Death.
7

Section 5K2.1 provides that "[i]f death resulted, the court
may increase the sentence above the authorized guideline range"
(emphasis added). We find no abuse of discretion in the district
court's decision to do so.

2.
Upward Departure Based Upon Prior Criminal History.
Section 4A1.3 provides, in part, that the sentencing court
may consider an upward departure:
[i]f reliable information indicates that the criminal
history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or
the likelihood that the defendant will commit other
crimes . . . . [or] . . . . that the defendant's
criminal history was significantly more serious than
that of most defendants in the same criminal history
category . . . .
Section 5K2.0 further counsels:
. . . . [T]he court may depart from the guidelines,
even though the reason for departure is taken into
consideration in the guidelines (e.g., as a specific
offense characteristic or other adjustment), if the
court determines that . . . the guideline level
attached to that factor is inadequate.
(emphasis added).
The district court determined that Ford's Criminal History
Category VI underrepresented his criminal history and propensity
for future violations. Ford's criminal history score of 20 is
higher than the minimum score of 13 for Category VI, though it is
by no means exaggerated. Compare Fitzhugh, 984 F.2d at 147
(criminal history score of 57).
The base offense level for unlawful firearm possession is
12. U.S.S.G. § 2K2.1(a)(7). The base offense level for a
convicted felon in (unlawful) possession of a firearm is 20. Id.
8

§ 2K2.1(a)(4). The minimum base offense level for an "armed
career criminal" is 33. Id. § 4B1.4(b)(3)(B). Clearly, the
guidelines incorporate Ford's criminal history into the
calculation of the base offense level. Ford's criminal history
is again incorporated when his sentencing range is calculated
using Criminal History Category VI, rather than some lower
category.
For the district court to find that the guideline range of
262 to 327 months does not adequately reflect Ford's criminal
history and propensity to future criminal activity requires
justification. The Guidelines' treatment of Ford as an "armed
career criminal" with a Criminal History Category VI (as opposed
to a person in illegal possession with no criminal history)
increases his guideline sentencing range from 10-16 months to
235-293 months -- a significant increase based solely on Ford's
prior criminal record.
The Government cites United States v. Carpenter, 963 F.2d
736 (5th Cir. 1992), in support of the reasonableness of the
district court's upward departure based upon criminal history.
There, Carpenter's guideline range for the underlying offense was
33-41 months, but he was subject to a statutory minimum sentence
of 180 months as an "armed career criminal." Id. at 742. The
district court then departed upward, adding 50 months based upon
Carpenter's extensive criminal history. Id. This court found
the district court's departure to be "reasonable." Id. at 744.
9

By comparison, the Government argues, Ford's sentence was only
increased by 33 months.
The Government's argument prevails, despite this court's
admonition in Carpenter that it was "simply decid[ing] the case
before it today [and that] [n]othing in this opinion should be
read to intimate that a 50 month upward departure from a 180
month guideline sentence is reasonable per se," id. at 746 n.7.
Like Carpenter, Ford had prior offenses which were not included
in the criminal history calculation. In Carpenter's case,
because they were stale, in Ford's, because of his age. Ford has
also exhibited continued criminal propensity, even after his
four-count conviction in Bell County and subsequent imprisonment,
to the point of repeated parole violations.
In sum, we think that the district court was well within the
discretion afforded it by the Guidelines to enhance Ford's
sentence based upon both Coffman's death and Ford's criminal
history.
II. CONCLUSION
Ford is an armed career criminal in every sense of the word,
and does not dispute the applicability of 18 U.S.C. § 924(e) or
U.S.S.G. § 4B1.4. As we read § 4B1.4(b)(3)(A), the district
court, on remand, correctly determined Ford's base offense level.
We likewise find no fault in the district court's calculation of
Ford's criminal history category, nor in the district court's
upward departure.
AFFIRMED.
10