## 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-App ellee. David J. Phillips, Federal Public Defender for the District of Kansas, Timothy J. Henry, Assistant Federal Public Defender for the Di strict of Kansas, Wichita, Kansas, for Defendant-Appellant.

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2-

After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant, Victor C. Wheeler, was originally charge d 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 vio lation of 18 U.S.C. § 924(c)(1)(A)(ii), and using a short-barreled shotgu n 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 restau rant located in Wichita, Kansas. Wheeler committed the robbery with two co- defendants. Pursuant to the terms of a written plea agreement, Wheeler waived i ndictment 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’ imp risonment. In this appeal, Wheeler argues that the district court erred when i t sentenced him to a term of imprisonment in excess of eighty-four months. Exer cising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this c ourt remands to the district court for resentencing.-3-

Pursuant to § 2K2.4(a) of the United States Sentenc ing 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 sentenc e is otherwise provided by this subsection or by any oth er provision of law, any person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a cou rt of the United States, uses or carries a firearm, or who, in furth erance of any such crime, possesses a firearm, shall, in addition to t he 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 yea rs. This court “review[s] for clear error the district court’s factual findings r egarding 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 i n 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 o pinion in United States v. Bazile , 209 F.3d 1205 (10th Cir. 2000), which was decidedafter Wheeler was-4-

sentenced. In Bazile , this court concluded that a sentencing court has the power to impose a sentence greater than the statutory man datory 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 c riminal history category and then use the most analogous sentencing guideline to calculate the defendant’s offense level, thereby arriving at a guidelines sen tencing range for the defendant.
See id . Only if some portion of the guidelines range fal ls 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 mandat ory 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 ye ars. Wheeler’s sentencing range must be determined by calculating Wheeler’s c riminal history category and total offense level and then applying the most anal ogous sentencing guideline to arrive at a guidelines sentencing range. If the up per limit of the guidelines range is less than seven years, Wheeler must be sentencedto the mandatory minimum seven-year sentence. Id. If the low end of the guidelines range is less t han seven1 On appeal, neither party contests the use of U.S.S. G. § 2B3.1 as the most

analogous sentencing guideline.

2 The Presentence Investigation Report does not conta in a calculation of Wheeler’s offense level although it does calculate Wheeler’s criminal history category at V. At sentencing, the district court i ndicated that it had requested the probation officer to calculate Wheeler’s offense le vel 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 of fense-level calculation prior to Wheeler’s sentencing.

3 The 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 me thod to ensure that Wheeler, -5- years and the high end is greater than seven years, Wheeler may be sentenced, in the district court’s discretion, to a term of incar ceration no less than seven years but no greater than the upper limit of the guidelin es sentence. If the lower limit of the guidelines sentencing range exceeds seven ye ars, Wheeler must be sentenced within the guidelines range. At the sentencing hearing, the district court emplo yed the following method to determine Wheeler’s sentence. The court first u sed U.S.S.G. § 2B3.1 1 to arrive at an informal calculation of Wheeler’s offense lev el. 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 resp onsibility 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 und er the sentencing guidelines at forty-six to fifty-seven months. The court then ad ded twenty-two months 3 to thewho had a criminal history category of V, received a greater sentence than his codefendant who had a criminal history category of I.

4 U.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 co mmission of the robbery, “a firearm was brandished, displayed, or possessed.” -6- seven-year minimum mandatory sentence to arrive at Wheeler’s 106-month
sentence. Although we agree with the district court’s conclus ion that Wheeler could receive a sentence in excess of seven years, the me thodology used by the court to determine Wheeler’s sentence does not comport with the directive given by Bazile . Additionally, this court notes that the districtcourt, 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 d ouble counting. This court notes that, in this case, U.S.S.G. § 2B3.1 is not u sed 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 lev els 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)-7-

(indicating that the five-level increase constitute s double counting only when the sentence imposed under 18 U.S.C. § 924(c) is in con junction with a sentence imposed for the underlying offense of robbery). The government has confessed error in this case andexpressed its opinion that the district court erred when it sentenced Whe eler to a term of incarceration in excess of eighty-four months. This court, howev er, is not bound by the government’s confession of error. The government r eads Bazile as requiring the district court to calculate a defendant’s guideline s 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 unde rlying 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 fr om 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 gov ernment’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-8-

the district court to vacate Wheeler’s sentence and resentence him consistent with this opinion.