Перевод в сфере юриспруденции. Борисова Л.А. - 18 стр.

Argued: March 4, 1997

Decided: July 14, 1997

Before WILKINSON, Chief Judge; RUSSELL, WIDENER, HALL,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG,
WILLIAMS, MICHAEL, and MOTZ, Circuit Judges; and PHILLIPS, Senior
Circuit Judge, sitting en banc.

Vacated and remanded for resentencing by published opinion. Judge Wilkins
wrote the majority opinion, in which Chief Judge Wilkinson and Judges Russell,
Widener, Hall, Murnaghan, Ervin, Niemeyer, Hamilton, Luttig, Williams,
Michael, Motz, and Phillips join. Judge Murnaghan wrote a separate opinion.
Judge Wilkins wrote a separate opinion, in which Chief Judge Wilkinson and
Judges Russell, Niemeyer, Luttig, and Williams join.

COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellants. John Samuel Bowler, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

ON BRIEF: William Davis, Lumberton, North Carolina, for Appellant Hodge.
Janice McKenzie Cole, United States Attorney, Paul S. Wilson, Special
Assistant United States Attorney, OFFICE OF THE         STAFF JUDGE
ADVOCATE, Fort Bragg, North Carolina, for Appellee.
OPINION
WILKINS, Circuit Judge:
Anthony D. Barber and David L. Hodge, Jr. appeal the sentences imposed upon
them by the district court following their pleas of guilty to second-degree
murder. See 18 U.S.C.A. § 1111 (a) (West Supp. 1997). They assert that the
district court erred in departing upward from their applicable guideline ranges
based upon its conclusion that various circumstances – the fact that the murder
was premeditated, that it occurred during a robbery, and that it was committed
with a dangerous weapon, a firearm – removed the case from the heartland of
situations encompassed within the second-degree murder guideline. See U.S.
Sentencing Guidelines Manual § 2 A 1.2 (1994). Because we cannot conclude
on the present record that the district court acted within its discretion in
departing upward based on the discharge of a firearm, and because we are
unable to conclude that the district court would have imposed the same sentence
in the absence of this factor, we vacate the sentence imposed and remand for
resentencing.

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