Filed: Apr. 14, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 4-14-1995 United States v Bass Precedential or Non-Precedential: Docket 94-5352 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "United States v Bass" (1995). 1995 Decisions. Paper 93. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/93 This decision is brought to you for free and open access by the Opinions of the United States Court of
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 4-14-1995 United States v Bass Precedential or Non-Precedential: Docket 94-5352 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "United States v Bass" (1995). 1995 Decisions. Paper 93. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/93 This decision is brought to you for free and open access by the Opinions of the United States Court of ..
More
Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
4-14-1995
United States v Bass
Precedential or Non-Precedential:
Docket 94-5352
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"United States v Bass" (1995). 1995 Decisions. Paper 93.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/93
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
----------
No. 94-5352
----------
UNITED STATES OF AMERICA
v.
DANNY BASS,
Appellant
----------
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 93-00518-2)
----------
Argued Wednesday, January 25, 1995
BEFORE: BECKER, LEWIS and GARTH Circuit Judges
----------
(Opinion filed April 14, 1995)
----------
Maria D. Noto
Amy B. Kershnar (Argued)
746 Highway 34
Matawan, New Jersey 07747
Attorneys for Appellant
Faith S. Hochberg
Victor Ashrafi
Allan Tananbaum (Argued)
Office of United States
Attorney
970 Broad Street
Room 502
Newark, New Jersey 07102
Attorneys for Appellee
----------
OPINION OF THE COURT
----------
GARTH, Circuit Judge:
Danny Bass appeals the 37 month sentence imposed by the
district court under the 1989 version of the Sentencing
Guidelines (U.S.S.G. §§ 2K2.1 and 2K2.2) following his plea of
guilty to charges of conspiracy to purchase and transport
firearms in violation of 18 U.S.C. § 371 and 18 U.S.C.
§ 922(a)(5)-(6). Bass argues that the district court erred in
three respects: (1) that the court clearly erred in finding that
he was a "leader or organizer" as defined in U.S.S.G. § 3B1.1;
(2) that the court impermissibly departed upward four levels when
it held that Bass "should have been possessed of knowledge or had
reason to believe that they [the weapons Bass purchased] would be
utilized to commit other types of felony crimes," app. 123; and
(3) that the court violated the Fifth Amendment's due process
clause by sentencing him at the top of the sentencing range based
on the court's belief that Bass perjured himself.
The district court had jurisdiction pursuant to 18
U.S.C. § 3551. We have appellate jurisdiction over the resulting
sentence pursuant to 18 U.S.C. § 3742.
We find no merit in Bass' first and third challenges to
his sentence and thus will affirm those aspects of the court's
determination with only a brief discussion. Nonetheless, we
conclude that the 1989 version of U.S.S.G. §§ 2K2.1 and 2K2.2
already took into account the foreseeable criminal use of the
weapons sold in the conspiracy. Because the guidelines do not
permit an upward departure on this basis, we will vacate the
sentence and remand for resentencing consistent with this
opinion.
I.
From late 1989 to October 1990, Danny Bass conspired
with Milton Lodge, Sam Gilbert, Katrina Huskersen, Tim Crumm, and
James Reid to buy firearms in Richmond, Virginia and to transport
the guns for undocumented resale in Newark, New Jersey. The
conspirators performed various functions in this plan, including
the solicitation of straw buyers in Virginia, the transfer of
funds from New Jersey to Virginia to pay for the purchases, the
purchase and transportation of at least 81 guns to Newark, New
Jersey, and the subsequent sale of the guns in the Newark area.
The weapons sold in the course of the conspiracy included an
undisclosed number of automatic firearms such as "Tec-9s." App.
54.
While the government presented no evidence that Bass
purchased, transported, or sold firearms himself, the government
produced evidence that Bass worked with Lodge and Gilbert to
organize the New Jersey operation and that Bass assisted in the
Virginia operation. For example, Lodge testified that on at
least two occasions he either delivered guns to Bass or notified
Bass of the delivery of weapons in New Jersey. App. 82-84; 77-
80. By means of various wire transfers and personal
transactions, Bass provided approximately $4,300 to $4,600 to
Gilbert for the purpose of purchasing weapons in Virginia. App.
61-66. A government expert testified that this amount of money
would purchase approximately 50 semiautomatic handguns in
Virginia. App. 62. The record suggests that other monetary
transfers occurred but the amounts transferred were not known.
Grand jury testimony of Katrina Huskerson, a straw
buyer in Virginia, was submitted at the sentencing hearing. In
addition to other testimony, Huskerson testified that Bass and
Sam Gilbert purchased the most firearms during the conspiracy.
App. 199.
On October 21, 1993, the United States indicted Danny
Bass and Samuel Gilbert for conspiring to purchase firearms
illegally and to transport them in interstate commerce in
violation of 18 U.S.C. § 371 and 18 U.S.C. § 922(a)(5)-(6). Bass
pled guilty to the conspiracy on the condition that the
government not seek a two level upward adjustment for obstruction
of justice.
At sentencing, the district court calculated Bass' base
offense level as six under the 1989 version U.S.S.G § 2K2.1. The
court adjusted the sentence upward six levels based on the number
of guns involved in the conspiracy. The court adjusted the
sentence downward two levels for acceptance of responsibility.
After a hearing, the district court found that Bass had
bankrolled a substantial part of the conspiracy's firearm
purchases and/or other expenses and directed a significant
portion of the conspiracy's New Jersey operations. The court
thus found that Bass was a leader or organizer within the meaning
of U.S.S.G. § 3B1.1 and adjusted the sentence upward an
additional four levels.
The district court departed upward still another four
levels because Bass "should have been possessed of knowledge or
had reason to believe that [the guns] would be utilized to commit
other types of felony crimes." App. 123. The court based this
decision to depart upward on two factors. First, the court felt
that the type of weapons sold in the conspiracy were "the favored
weapons of the underworld." App. 119. Second, the court
believed that the 1991 amendments to the guidelines, which now
permit a four level adjustment in the offense level when "the
defendant . . . possessed or transferred any firearm . . . with
knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense . . .,"
U.S.S.G. § 2K2.1(b)(5) (1994), demonstrated that the 1989
guidelines did not take into account Bass' knowledge of the
possible illegal uses of the firearms. The district court also
noted that weapons attributable to the conspiracy had been linked
to a police shootout and the murder of a New Jersey assistant
district attorney.
Finally, the district court chose to sentence Bass at
the top of the applicable sentencing range because the court
found that Bass had perjured himself at an earlier suppression
hearing.
Following these adjustments, the district court, having
a range of 30-37 months from which it could sentence Bass, then
sentenced Bass to 37 months in prison and three years supervised
release. Bass filed a timely notice of appeal.
II
Bass argues that the district court clearly erred when
it found that he was a leader or organizer of the conspiracy. We
will not disturb the factual findings of the district court
unless they are clearly erroneous. United States v. Ortiz, 878
F.2d 125, 126-27 (3d Cir. 1989). We must accept the district
court's findings unless we are "left with the definite and firm
conviction that a mistake has been committed." United States v.
United States Gypsum Co.,
333 U.S. 364, 395 (1948).
U.S.S.G. § 3B1.1(a) instructs the district court to
increase a defendant's sentence by four levels "[i]f the
defendant was an organizer or leader of a criminal activity that
involved five or more participants . . . ." Application Note
three of the 1989 guidelines instructs the court to consider the
following factors in deciding whether the defendant is an
organizer: the defendant's decision-making authority, the nature
of the participation in the actual offenses, the recruitment of
accomplices, the claimed right to a larger share of the proceeds,
the degree of planning, the nature and scope of the illegal
activity, and the degree of control exercised over others.
U.S.S.G. § 3B1.1, App. Note 3; Ortiz, 878 F.2d at 127. The
commentary to the guidelines purports only to suggest various
factors the court should consider.
Ortiz, 878 F.2d at 127.
Evidence of every factor is not a prerequisite to a finding that
the defendant is a leader or organizer under § 3B1.1, nor is
evidence that the defendant is the sole or predominate leader
required.
Id. The government need only show sufficient
authority to justify such a finding.
Id.
Bass premises his challenge primarily on the
government's lack of evidence that he actually participated in
the purchase, transportation, and sale of the firearms. Bass
misunderstands the indicia of leadership under the guidelines.
Leadership is not inconsistent with a refusal to participate in
the actual implementation of a criminal plan. A person who
plans, funds, and supervises a conspiracy's operation does not
immunize himself from upward adjustment under § 3B1.1 just
because he does not join in all of the mechanics and all of the
various activities of the illegal enterprise. Indeed, leaders
and organizers often distance themselves from the actual
implementation of the conspiracy.
The fundamental question is whether adequate evidence
supports the district court's determination that Bass
participated in planning and organizing the crime. This record
provides sufficient support for that conclusion.
The evidence presented at the sentencing hearing
revealed that Bass bankrolled a large part of the gun purchasing
operation. His contribution of approximately $4,300 to $4,600
was sufficient to account for the purchase of more than half of
the weapons eventually traced to the conspiracy. Bass took
possession of some of these weapons immediately when he was in
Virginia. In at least two other cases, he assumed control over
weapons shipments upon their arrival in Newark. Further, Bass
admitted to identifying buyers for the weapons in New Jersey.
This evidence, which provides a sufficient foundation to conclude
that Bass had substantial control over the conspiracy's New
Jersey operations, permitted the district court to find that Bass
was a leader or organizer within the meaning of § 3B1.1.
III
Bass next argues that the Sentencing Commission
adequately considered the foreseeable consequence that firearms
sold in violation of the National Firearms Act would be used in
the commission of other felonies when it drafted the 1989 version
of guideline § 2K2.2.1 He argues that the district court
1
. U.S.S.G. § 2K2.1(c)(1), under which Bass was sentenced,
required the district court to calculate a defendant's sentence
by reference to § 2K2.2. The 1989 version of U.S.S.G. § 2K2.2
reads as follows:
Unlawful Trafficking and Other Prohibited Transactions
Involving Firearms
(a) Base Offense Level
(1) 16, if the defendant is convicted under 18 U.S.C.
§ 922(o) or 26 U.S.C. § 5861;
(2) 6, otherwise.
(b) Specific Offense Characteristics
(1) If the offense involved distribution of a firearm,
or possession with intent to distribute, and the
number of firearms unlawfully distributed, or to
be distributed, exceeded two, increase as follows:
Number of Firearms Increase in Level
. . . . . .
therefore erred by departing upward an additional four levels in
his case. Whether the Sentencing Commission adequately
considered a factor in drafting a guideline is subject to plenary
review. United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989).
The district court must sentence within the applicable
guideline range and is not authorized to depart from that range
"unless the court finds that there exists an aggravating or
mitigating circumstance 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(b). "In
determining whether a circumstance was adequately taken into
(..continued)
(F) 50 or more add 6
(2) If any of the firearms was stolen or had an
altered or obliterated serial number, increase by
2 levels.
(3) If more than one of the following applies, use the
greater:
(A) If the defendant is convicted under 18 U.S.C.
§ 922(d), increase by 6 levels; or
(B) If the defendant is convicted under 18 U.S.C.
§ 922(b)(1) or (b)(2), increase by 1 level.
(c) Cross Reference
(1) If the defendant, at the time of the offense, had
been convicted in any court of a crime punishable
by imprisonment for a term exceeding one year,
apply § 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition) if the
resulting offense level is greater than that
determined above.
consideration, the court shall consider only the sentencing
guidelines, policy statements, and official commentary of the
Sentencing Commission." Id. Here, the district court departed
upward four levels because it held that the 1989 firearm
guidelines, specifically U.S.S.G. §§ 2K2.1 and 2K2.2, "did not
take into account the nature and the type of weapons transferred.
One should have been possessed of knowledge or had reason to
believe that they would be utilized to commit other types of
felonies." App. 123.
The district court's conclusion conflicts with the
analysis in two of our earlier opinions: United States v. Uca,
867 F.2d 783, 786 (3d Cir. 1989) and United States v. Kikumura,
918 F.2d 1084, 1104-07 (3d Cir. 1990).
In Uca, Uca and a co-defendant Hodzic attempted to
purchase guns from a government sting operation in Pennsylvania
for eventual resale and shipment to Albania for use in a private
war. Following their convictions, the district court departed
upward on the following grounds:
There's no lawful purpose for these guns.
We're not talking about one gun or two guns,
we're talking about 56 untraceable handguns
which translates in my mind to at least 56
potential acts of violence in this country or
in another country. The use of handguns,
unlicensed handguns, causes the perpetuation
of criminal activity of persons so inclined
to rob, maim, start their own private wars,
even drug wars in cities such as
Philadelphia.
Id. at 786. After examining the purpose and substance of
U.S.S.G. § 2K2.3,2 we determined that "[c]learly, the Guidelines
contemplate unlawful intent" on the part of the defendants
transferring the firearms.
Id. at 789. Because the guideline
took into account the likelihood that illegally obtained handguns
would be used in future crimes, we concluded that "[t]he intended
use of the guns is not a circumstance warranting upward
departure."
Id. at 790 (footnote omitted).
Kikumura involved the application of the firearms and
explosives guidelines to a defendant, Yu Kikumura, who was caught
with bombs which he had intended to use in a terrorist attack in
New York City. The type of bomb seized would without question
have resulted in death or serious injury to the public. Because
the district court concluded that the guidelines did not account
for Kikumura's specific intent to murder civilians, the district
court departed upward. Kikumura claimed that Uca invalidated the
departure. We distinguished Uca and disagreed.
In Kikumura, we read Uca as holding that the offense
levels provided in the Sentencing Guidelines already accounted
for a defendant's disregard for the likelihood that firearms
involved in a conviction would be used in later criminal
offenses. Kikumura, 918 F.2d at 1109. Nonetheless, we concluded
that neither Uca nor the guidelines accounted for the kind of
2
. U.S.S.G. § 2K2.3, the guideline applied in Uca, was a
predecessor to U.S.S.G. § 2K2.1 and § 2K2.2, the guidelines
applied here. The substance of the two guidelines is nearly
identical. The minor differences that exist have no effect on
this case.
specific intent to kill which Kikumura had shown.
Id. To
summarize, we decided that the guidelines' "base offense levels
incorporate some presumption of intended unlawful use," but not a
predetermined specific intent to
kill. 918 F.2d at 1109.
In the present case, neither the district court nor the
government identified any evidence which suggested that Bass knew
of, or intended, any particular illegal uses for the weapons sold
in the course of the conspiracy. The district court departed
upwards because Bass should have known that the guns would be
used in future felonies.
The district court based its conclusion primarily on
the fact that an undisclosed number of semiautomatic handguns and
"Tec-9s" -- "the favored weapons of the underworld" -- were among
the firearms sold in the conspiracy. App. 119. While we can
understand the district court's concern that these types of
weapons are generally used for unlawful purposes, we do not
believe that the mere identification of the type of weapons
purchased and transported indicate that Bass' level of intent
exceeded the mens rea present in Uca, which we found to have been
adequately considered by the Sentencing Commission.
As additional support for its upward departure, the
district court recognized that weapons attributable to the
conspiracy had already been tied to other felonies in Newark.
Newark police found at least one weapon, attributable to Bass,
following a shootout between police and drug dealers, and another
weapon, also attributable to Bass, was used to kill a New Jersey
assistant district attorney. The government however was unable
to show that Bass was in any way aware of these events or was
associated with those who perpetrated the crimes.
We recognize that an analytical distinction exists
between Bass' mens rea with respect to possible future felonies
and the actual commission of those felonies. The propriety of an
upward departure based on the actual commission of felonies using
guns purchased during the conspiracy was not considered in Uca as
no evidence of actual subsequent offenses was presented to the
sentencing court. Nonetheless, this distinction is too tenuous
to conclude that the sentencing guidelines permit a departure
where a later gun-related felony is actually committed and
preclude a departure in a Uca situation when no evidence of a
later felony is considered by the district court. Hence, we will
not interpret the 1989 guidelines as permitting a departure
because felonies were ultimately committed while, at the same
time, forbidding a departure because the defendant had reason to
believe the guns would be used in the commission of future
felonies.
Absent additional evidence of specific intent tying
Bass more directly to the subsequent crimes, these tragic events
only confirm the reality already taken into account by the
Sentencing Commission's 1989 firearm guidelines -- that the
illegal sale of guns always poses the risk that the guns will be
used in other dangerous illegal activity.
The government sought to avoid our holding in Uca by
reference to the Sentencing Commission's 1991 amendments to the
firearms guidelines. In 1991, the Commission added U.S.S.G.
§ 2K2.1(b)(5) which reads:
If the defendant used or possessed any
firearm or ammunition in connection with
another felony offense; or possessed or
transferred any firearm or ammunition with
knowledge, intent, or reason to believe that
it would be used or possessed in connection
with another felony offense, increase by 4
levels.
(emphasis added). This provision might have permitted a four
level adjustment if the court could have applied these later
guidelines.
The government argues that the 1991 amendments permit
us to affirm Bass' sentence on the basis of United States v.
Joshua, 976 F.2d 844 (3d Cir. 1992). Joshua, under certain
circumstances, permits courts in this Circuit to consider
subsequent amendments to official guidelines commentary when
interpreting prior guidelines, even if the new commentary
conflicts with a panel's decision rendered prior to the
amendment.
Id. at 854-56.
The government's argument however is unavailing because
the 1991 amendment does not conflict with our conclusion in Uca
and Kikumura that the guidelines under which those cases were
decided presume some level of illegal use for the firearms
transferred.
The 1991 amendments involved more than a reexamination
of U.S.S.G. § 2K2.1. The amendments represented the Commission's
efforts to consolidate U.S.S.G. §§ 2K2.1, 2K2.2, and 2K2.3 into a
single guideline, § 2K2.1. Section 2K2.3 in the 1989 guidelines,
which was titled "Receiving, Transporting, Shipping or
Transferring a Firearm or Ammunition With Intent to Commit
Another Offense or With Knowledge that It Will Be Used in
Committing Another Offense," sought to tailor a defendant's
sentence to any known or intended uses of firearms. This
guideline also applied to illegal transactions in firearms when,
under 18 U.S.C. § 924(b), the defendant had "reasonable cause to
believe that [a felony] is to be committed therewith." See
Commentary to U.S.S.G. § 2K2.3 (1989).
An even earlier version of U.S.S.G. § 2K2.3 also took
into account the defendant's knowledge or intent regarding the
use of the weapons in future offenses. Section 2K2.3(c)(1) of
the pre-1989 guideline read as follows:
If the defendant provided the firearm to
another for the purpose of committing another
offense, or knowing that he planned to use it
in committing another offense, apply § 2X1.1
(Attempt or Conspiracy) in respect to such
other offense, if the resulting offense level
is higher.
As this pre-1989 guideline language makes clear, the Commission
contemplated the imposition of higher sentences when the
defendant transferred firearms with intent or knowledge that they
would later be used in other offenses. Both versions of § 2K2.3
thus reveal that the Sentencing Commission specifically
considered the defendant's mens rea in setting the appropriate
offense level.
The new § 2K2.1(b)(5) provision, rather than altering
the substance of the 1989 version of § 2K2.1, continues a part of
the function that § 2K2.3 served in 1989. As a result, the
amendment does not by itself support a conclusion that the
Commission, in drafting the 1989 guidelines, failed to consider
the foreseeable illegal use of illegally obtained weapons.
Further, the instant case lacks some of the crucial
factors, present in Joshua, factors that persuaded us to
reevaluate our prior interpretation of the applicable guideline
in light of the subsequent amendment.
Joshua involved a Sentencing Commission amendment which
explicitly sought to clarify ambiguous, but unchanged guideline
language by means of new commentary. 976 F.2d at 855. Here,
neither party has pointed to anything which suggests why the
Commission sought to add § 2K2.1(b)(5) to the substance of the
guideline. In the absence of any language, provision or
explanation which clarifies the Commission's intent when it added
the "reason to believe" language in § 2K2.1(b)(5), we cannot know
the thinking that gave rise to the amendment. It may be that the
amendment indicates that the Commission had not previously
considered the question of the defendant's recklessness with
respect to future crimes or it may be that the Commission simply
changed the degree of punishment for a previously considered
factor just as it did when it increased the base offense levels
applied to some firearm offenses as a part of the 1991
amendments. Compare U.S.S.G. §§ 2K2.1(a) & 2K2.2(a) (1989) with
U.S.S.G. § 2K2.1(a) (1992). Absent a clear intent on the part of
the Commission to clarify a prior ambiguity and absent the type
of clear conflict between our precedents and new Commission
action, which we discussed in Joshua, we have no occasion to
reconsider our holding in Uca and our discussion of that holding
in Kikumura.
For all of these reasons, we disagree with the
government's argument that the Commission's 1991 amendment
provides sufficient reason to reevaluate our controlling opinions
in Uca and Kikumura, which we are duty bound to apply. See Third
Circuit I.O.P. 9.1. Because the district court's departure
conflicts with Uca, Bass is entitled to a four level reduction in
his sentence.
IV
Finally, Bass argues that the district court violated
his constitutional right to due process by sentencing him at the
highest end of the sentencing range based on the district court's
finding that Bass had perjured himself in a prior exclusionary
hearing. We exercise plenary review over Bass' constitutional
due process challenge, United States v. Barnhart, 980 F.2d 219,
222 (3d Cir. 1992), and conclude, as we have earlier noted, that
Bass' argument lacks merit.
Recently, in United States v. Dunnigan, 113 S. Ct. 1111
(1992), the Supreme Court held that enhancement of a guidelines
sentence for obstruction of justice under U.S.S.G. § 3C1.1 based
on a district court's finding that the defendant perjured himself
did not violate the Constitution. The Court wrote:
In the present context, . . . the enhancement
provision is part of a sentencing scheme
designed to determine the appropriate type
and extent of punishment after the issue of
guilt has been resolved. The commission of
perjury is of obvious relevance in this
regard, because it reflects on a defendant's
criminal history, on her willingness to
accept the commands of the law and the
authority of the court, and on her character
in general.
Id. at 1116. Accordingly, a finding of perjury can enhance a
defendant's offense level in some contexts.
The Court in Dunnigan relied heavily on its opinion in
United States v. Grayson, 438 U.S. 41 (1978). There, the Court
held that increasing a pre-guidelines sentence following a
finding of perjury did not violate the due process clause. The
Court concluded that the risk that sentencing judges would
improperly enhance sentences based on an unindicted offense did
not outweigh the benefits of allowing the judge to consider all
of the defendant's conduct when fashioning an appropriate
sentence.
Id. at 53-54.
While Bass' challenge is not controlled by either
Dunnigan or Grayson, we are satisfied that the reasoning of both
cases permits a district court to impose a higher sentence within
the sentencing range on the basis of the defendant's perjury. If
the district court can enhance the offense level based on a
finding that the defendant perjured himself, a fortiori, the
court can impose a higher sentence within the sentencing range
based on a finding of perjury. The district court, having found
that Bass had committed perjury, thus did not violate Bass'
constitutional rights.
V
For the foregoing reasons, we will affirm the district
court's decision to adjust Bass' sentence upward four levels
under U.S.S.G. § 3B1.1 and to sentence at the top of the range
based on the court's finding that Bass perjured himself.
However, because the 1989 guidelines, as we interpreted them in
United States v. Uca, 867 F.2d 783 (3d Cir. 1989), do not permit
an additional upward departure based on the foreseeable use of
the firearms purchased by Bass in the commission of felonies, we
will vacate the district court's sentence and remand for
resentencing consistent with the foregoing opinion.
