Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1990)

MEMORANDUM^** 

Donald Lee Shetterly plead guilty to two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1) (West Supp.1989). Under the Sentencing Guidelines his adjusted offense level was 7 and the total criminal history score was 14. Shetterly is in the highest criminal history category, Category VI.

The sentencing guideline range is from fifteen to twenty-one months' imprisonment. The Probation Office recommended that the district court depart upward from this range and sentence Shetterly to forty-six months' imprisonment.

The district court departed upward from the sentencing range and sentenced Shetterly to twenty-eight months of imprisonment on each count to be followed by a three-year term of supervised release. The court gave three reasons for its departure: (1) Shetterly's extensive criminal record; (2) the fact that Shetterly must have known he could not possess a firearm; and (3) his "carelessness in the display of this gun" during the occurrence for which he was indicted. Shetterly actually fired the gun in the direction of his adult daughter. The bullet struck the ground approximately four inches from her head and right foot as she crouched down to avoid the gunfire.

Shetterly appeals the district court's upward departure from the Guidelines. He argues the court could not depart on the basis of his criminal history because that factor had been considered adequately by the Sentencing Commission when it formulated the guidelines.

This argument lacks merit. A court can impose a sentence outside the guidelines if " '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....' " United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989) (quoting 18 U.S.C. § 3553(b) (Supp. V. 1987)). Section Sec. 4A1.3 of the guidelines specifically provides for a departure in relation to a defendant's criminal history. It states, in part:

A departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes.

Section 5K2.6 of the Guidelines Manual authorizes a departure for the discharge of a weapon:

If a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which it endangered others. The discharge of a firearm might warrant a substantial sentence increase.

The district court " 'must set forth the specific aspects of the defendant's criminal history or of the charged offense that the district court believes have not been adequately represented in the recommended sentence." United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989). With respect to Shetterly's criminal history, the court stated: "this man has a serious criminal record. He's been a felon for a long time and he persists in possessing weapons." (Emphasis added). With respect to the charged offense, the court observed that Shetterly must have known he could not possess a firearm¹  and that he had discharged it toward another human being.

The reasons given by the district court merit an upward departure because the guidelines themselves recognize these reasons as sufficient aggravating circumstances. The record clearly shows the carelessness with which Shetterly discharged the weapon and the extent to which it endangered others, as well as Shetterly's persistence in possessing firearms. His criminal history shows he repeatedly has used firearms in the past thirty years. The likelihood of recidivism is high, and it is a factor that can be considered in departing from the guidelines. Section 4A1.3; see also Commentary (" [t]his policy statement authorizes the consideration of a departure from the guidelines in the limited circumstances where reliable information indicates that the criminal history category does not adequately reflect the ... likelihood of recidivism.").

Because this departure was permissible, we must decide whether the sentence was unreasonable. Michel, 876 F.2d at 786. Given a substantial sentence increase was warranted for the discharge of the firearm alone under section 5K2.6, we cannot say that an additional seven months was unreasonable.

AFFIRMED.