F I L E D

United States Court of Appeals

Tenth Circuit

OCT 23 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

VICTOR C. WHEELER,

Defendant-Appellant. 

No. 00-3069

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 99-CR-10129-03-MLB)

Submitted on the briefs:

Jackie N. Williams, United States Attorney, David M. Lind, Assistant United

States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

David J. Phillips, Federal Public Defender for the District of Kansas, Timothy J.

Henry, Assistant Federal Public Defender for the District of Kansas, Wichita,

Kansas, for Defendant-Appellant.

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
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After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant, Victor C. Wheeler, was originally charged in a three-count

complaint with robbery in violation of 18 U.S.C. § 1951, brandishing a firearm

during the commission of a crime of violence in violation of 18 U.S.C. §

924(c)(1)(A)(ii), and using a short-barreled shotgun during the commission of a

crime of violence in violation of 18 U.S.C. § 924(c)(1)(B)(i). All three charges

stemmed from the robbery of a Sonic Drive In restaurant located in Wichita,

Kansas. Wheeler committed the robbery with two co-defendants. Pursuant to the

terms of a written plea agreement, Wheeler waived indictment and pleaded guilty

to a one-count information in which he was charged with brandishing a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The

district court sentenced Wheeler to 106 months’ imprisonment. In this appeal,

Wheeler argues that the district court erred when it sentenced him to a term of

imprisonment in excess of eighty-four months. Exercising jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court remands to the district

court for resentencing.
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Pursuant to § 2K2.4(a) of the United States Sentencing Guidelines

(“U.S.S.G.”), a defendant convicted of violating 18 U.S.C. § 924(c) must be

sentenced to the term of imprisonment “required by statute.” In Wheeler’s case,

the applicable statute is 18 U.S.C. § 924(c)(1)(A)(ii) which provides, in relevant

part, as follows:

Except to the extent that a greater minimum sentence is

otherwise provided by this subsection or by any other provision of

law, any person who, during and in relation to any crime of violence .

. . for which the person may be prosecuted in a court of the United

States, uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the punishment

provided for such crime of violence . . . 

. . . 

(ii) if the firearm is brandished, be sentenced to a term

of imprisonment of not less than 7 years . . .

(emphasis added). The district court interpreted § 924(c)(1)(A)(ii) as authorizing

the imposition of a sentence greater than seven years. This court “review[s] for

clear error the district court’s factual findings regarding sentencing and review[s]

de novo its legal interpretation of the Guidelines.” United States v. MaldonadoAcosta, 210 F.3d 1182, 1183 (10th Cir. 2000). 

On appeal, Wheeler argues the district court erred when it concluded that it

could sentence Wheeler to a term of incarceration in excess of the mandatory

minimum sentence of eighty-four months provided in § 924(c)(1)(A)(ii). 

Wheeler’s argument fails in light of this court’s opinion in United States v.

Bazile, 209 F.3d 1205 (10th Cir. 2000), which was decided after Wheeler was
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sentenced. In Bazile, this court concluded that a sentencing court has the power

to impose a sentence greater than the statutory mandatory minimum required by §

924(c) if the “defendant’s criminal history category and offense level indicates a

term higher than the minimum under the statute.” Id. at 1207. In so doing,

however, the court must calculate the defendant’s criminal history category and

then use the most analogous sentencing guideline to calculate the defendant’s

offense level, thereby arriving at a guidelines sentencing range for the defendant. 

See id. Only if some portion of the guidelines range falls above the minimum

mandatory can the district court impose a sentence above the minimum

mandatory. See id.

By applying the reasoning in Bazile to the facts in this case, we conclude

that § 924(c)(1)(A)(ii) does more than fix a mandatory minimum sentence of

seven years. Section 924(c)(1)(A)(ii) establishes a range of sentences within

which Wheeler may be sentenced. In Wheeler’s case, the minimum mandatory

sentence required by § 924(c)(1)(A)(ii) is seven years. Wheeler’s sentencing

range must be determined by calculating Wheeler’s criminal history category and

total offense level and then applying the most analogous sentencing guideline to

arrive at a guidelines sentencing range. If the upper limit of the guidelines range

is less than seven years, Wheeler must be sentenced to the mandatory minimum

seven-year sentence. Id. If the low end of the guidelines range is less than seven
1On appeal, neither party contests the use of U.S.S.G. § 2B3.1 as the most

analogous sentencing guideline.

2The Presentence Investigation Report does not contain a calculation of

Wheeler’s offense level although it does calculate Wheeler’s criminal history

category at V. At sentencing, the district court indicated that it had requested the

probation officer to calculate Wheeler’s offense level and guidelines sentence

using U.S.S.G. § 2B3.1. The record on appeal does not indicate whether the

parties were provided with a written copy of the offense-level calculation prior to

Wheeler’s sentencing.

3The 22 months represents the difference between the low end of Wheeler’s

guidelines sentencing range and the low end of the range calculated for one of his

co-defendants. The district court employed this method to ensure that Wheeler,

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years and the high end is greater than seven years, Wheeler may be sentenced, in

the district court’s discretion, to a term of incarceration no less than seven years

but no greater than the upper limit of the guidelines sentence. If the lower limit

of the guidelines sentencing range exceeds seven years, Wheeler must be

sentenced within the guidelines range.

At the sentencing hearing, the district court employed the following method

to determine Wheeler’s sentence. The court first used U.S.S.G. § 2B3.11 to arrive

at an informal calculation of Wheeler’s offense level.2 Section 2B3.1 provides

for a base offense level of twenty for the crime of robbery. The district court

awarded Wheeler three points for acceptance of responsibility and arrived at a

total offense level of seventeen. Based on Wheeler’s criminal history category of

V, the court then calculated Wheeler’s sentence under the sentencing guidelines at

forty-six to fifty-seven months. The court then added twenty-two months3 to the
who had a criminal history category of V, received a greater sentence than his codefendant who had a criminal history category of I. 

4U.S.S.G. § 2B3.1(b)(2)(C) provides that a defendant’s base offense level

shall be increased by five levels if, during the commission of the robbery, “a

firearm was brandished, displayed, or possessed.” 

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seven-year minimum mandatory sentence to arrive at Wheeler’s 106-month

sentence.

Although we agree with the district court’s conclusion that Wheeler could

receive a sentence in excess of seven years, the methodology used by the court to

determine Wheeler’s sentence does not comport with the directive given by

Bazile. Additionally, this court notes that the district court, when calculating

Wheeler’s offense level, did not add five points to Wheeler’s base offense level

pursuant to U.S.S.G. § 2B3.1(b)(2)(C).4

 The court expressed its belief that

applying the five-level increase would constitute double counting. This court

notes that, in this case, U.S.S.G. § 2B3.1 is not used to determine Wheeler’s

sentence for the underlying offense of robbery. As the most analogous sentencing

guideline, § 2B3.1 is employed solely as a means to calculate the upper end of the

sentencing range authorized by 18 U.S.C. § 924(c)(1)(A)(ii). Because Wheeler

was convicted only of the firearms charge and not the underlying robbery,

increasing Wheeler’s base offense level by five levels pursuant to U.S.S.G. §

2B3.1(b)(2)(C) for the sole purpose of calculating the guidelines sentencing range

does not constitute double counting. Cf. U.S.S.G. § 2K2.4 comment. (n.2)
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(indicating that the five-level increase constitutes double counting only when the

sentence imposed under 18 U.S.C. § 924(c) is in conjunction with a sentence

imposed for the underlying offense of robbery). 

The government has confessed error in this case and expressed its opinion

that the district court erred when it sentenced Wheeler to a term of incarceration

in excess of eighty-four months. This court, however, is not bound by the

government’s confession of error. The government reads Bazile as requiring the

district court to calculate a defendant’s guidelines sentencing range only if the

defendant is actually charged with the underlying offense that gives rise to the §

924(c) conviction. Wheeler was charged with the § 924(c) violation in a onecount information; he was not charged with the underlying offense of robbery. 

Thus, the government asserts that the district court was not required to calculate

Wheeler’s guidelines sentencing range but was only required to sentence him to

the seven-year mandatory minimum. It is evident from our disposition of

Wheeler’s appeal that the government misreads Bazile.

Although we conclude that the methodology used by the district court to

determine Wheeler’s sentence was erroneous, the government’s contention that

Wheeler may not be sentenced to a term in excess of eighty-four months is also

erroneous. See Bazile, 209 F.3d at 1207. Consequently, this court remands to
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the district court to vacate Wheeler’s sentence and resentence him consistent with

this opinion.