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Defendant-appellant Elwood Shular, Jr.,[1] appeals from a judgment entered on November 30, 1989, in the United States District Court for the District of Connecticut (Burns, Ch.J.) convicting him of a conspiracy to deal in firearms without a license and sentencing him to a term of imprisonment of thirty-six months. Shular contends that the court impermissibly considered the same factors to support both an enhancement of his offense level and an upward departure from that enhanced level. He asserts that the departure was unwarranted in any event because his co-defendant did not receive a similar upward departure. Finally, he contends that the extent of the departure was unreasonable. We conclude that, while some departure was warranted, Shular is entitled to resentencing in accordance with our intervening decision in United States v. Won Tae Kim, 896 F.2d 678 (2d Cir.1990). For the reasons that follow, we vacate the sentence and remand for resentencing in a manner consistent with this opinion.


907 F.2d 294 (1990)

UNITED STATES of America, Appellee,


Elwood SCHULAR, Jr., Defendant-Appellant.

No. 1116, Docket No. 89-1642.

United States Court of Appeals, Second Circuit.

Argued April 19, 1990.

Decided June 27, 1990.

New York Law School location: File #976, Box #125