"The guideline applied by the court, U.S.S.G. § 2K2.1 identifies possession alone as a crime. . . . Thus, the Sentencing Commission recognized that the guideline would be applied to crimes involving mere possession of an illegal weapon, regardless of the circumstances under which it was acquired." United States v. Dalecke, 29 F.3d 1044, 1047 (6th Cir. 1994). Freeman's base offense level of 12 under § 2K2.1(a)(7) and his four-level enhancement for trafficking pursuant to § 2K2.1(b)(5) are thus punishing entirely different aspects of his crime.
The Sixth Circuit has declined to take sides in the debate. See United States v. Dalecke, 29 F.3d 1044, 1047-48 (6th Cir. 1994) (stating that under either test, and considering only factors not taken into account in the Guidelines, defendant's fifteen-year possession of an illegal gun was not aberrant); United States v. Duerson, 25 F.3d 376, 382 (6th Cir. 1994) (declining to choose an approach in affirming district court's decision not to depart in a case in which the defendant began to plan the robbery of a UPS vault several weeks before the crime). The nonexclusive factors identified recently by the Second Circuit in Zecevic are representative.
The above considerations mandate strict adherence to the guidelines whenever they have accounted for a factor, "unless rare and exceptional circumstances warrant departure." United States v. Dalecke, 29 F.3d 1044, 1046 (6th Cir. 1994) (quoting United States v. Brewer, 899 F.2d 503, 506 (6th Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990)). Accordingly, this Court may impose a sentence in excess of the guidelines range only if there exists an aggravating circumstance not adequately considered by the Sentencing Commission, or if, in light of the unusual circumstances of the case, the guidelines level attached to that factor or circumstance is inadequate.