United States Court of Appeals,

Eleventh Circuit.

No. 96-8217

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth WIMBUSH, Defendant-Appellant.

Jan. 22, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:95-CR-359), Frank M. Hull, Judge.

Before EDMONDSON and CARNES, Circuit Judges, and KRAVITCH, Senior

Circuit Judge.

PER CURIAM:

Kenneth Wimbush was convicted based upon a guilty plea, of one

count of possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g). Prior to this conviction, he had been

convicted on two separate occasions for crimes of violence, once

for manslaughter and once for burglary of a dwelling. He was

sentenced pursuant to the United States Sentencing Guidelines in

effect in February of 1996, including § 2K2.1(a)(2).

Pursuant to that guideline section, because Wimbush had two

prior convictions for crimes of violence, he received a base

offense level of 24. He also received a two-level upward

adjustment pursuant to § 2K2.1(b)(4), because the firearm he

possessed was stolen. The resulting offense level of 26 was

reduced two steps for acceptance of responsibility and one

additional step because his guilty plea occurred approximately five

months after his arrest, allowing the government to more
efficiently allocate its resources. See § 3E1.1(b). In

calculating his criminal history, the district court considered the

burglary of a dwelling and involuntary manslaughter convictions

that it had previously considered in determining his base offense

level. As a result of considering those convictions for criminal

history purposes, Wimbush was in criminal history category V. The

district court departed downward one criminal history point to

category IV, because it felt that his criminal history would

otherwise be overstated.

The net result of the district court's various sentencing

decisions was an offense level of 23 and a criminal history

category IV, resulting in a guideline range of 70 to 87 months.

Wimbush actually received a sentence of 72 months imprisonment to

be followed by three years of supervised release. He raises two

issues in this appeal.

I.

 First, Wimbush contends that § 2K2.1 of the guidelines, as

amended, is invalid because the Sentencing Commission failed to

explain adequately the reasons for its 1989 and 1991 amendments to

that section, which amendments had the effect of substantially

increasing the punishment for the offense. Under this section of

the guidelines as it originally existed, a defendant in Wimbush's

circumstances received a base offense level of 9; the 1989

amendment increased the base offense level to 12. U.S.S.G. app. C,

amend. 189 (1989). The 1991 amendment to this section further

increased the base offense level to 24 when the defendant has two

prior convictions for crimes of violence, as Wimbush does.
Wimbush contends that § 2K2.1, as amended, is invalid because

the Sentencing Commission promulgated the 1989 and 1991 amendments

to this guideline, substantially increasing the punishment, without

adequately explaining the reasons for the changes, as required by

the Administrative Procedure Act ("APA"). He asserts that the

Commission's statements accompanying the amendments did not explain

the changes and simply noted that the revised guideline was harsher

than the earlier one. As a result, he argues that his sentence,

which was determined under the amended section, must be vacated.

We are not persuaded.

 The Commission remains fully accountable to Congress for the

guidelines and amendments it implements. Mistretta v. United

States, 488 U.S. 361, 393-94, 109 S.Ct. 647, 666, 102 L.Ed.2d 714

(1989). Congress also subjected the Commission's rule making to

the notice and comment requirements of the APA. 28 U.S.C. §

994(x). However, other provisions of the APA, including those

concerning judicial review, were conspicuously not made applicable

to the Commission. See S.Rep. No. 225, 98th Cong., 1st Sess. 181

(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3364 ("It is ... not

intended that the guidelines be subject to appellate review....

There is ample provision for review of the guidelines by Congress

and the public; no additional review of the guidelines as a whole

is either necessary or desirable."). Thus, Congress did not intend

to subject the actions of the Commission to judicial review. In

United States v. Lopez, 938 F.2d 1293 (1991), the D.C. Circuit held

for these very reasons that courts lack authority to review the

sufficiency of the Commission's explanation for § 5H1.1. Id. at
1297. In United States v. Cooper, 35 F.3d 1248 (1994), vacated on

other grounds, --- U.S. ----, 115 S.Ct. 1820, 131 L.Ed.2d 742

(1995), the Eighth Circuit questioned, without deciding, whether it

had the authority to review the Commission's explanation for the

1991 amendment to § 2K2.1. Id. at 1254-55. In light of the

statute itself, and the Senate Report, we agree with the skepticism

of the Eighth Circuit and the holding of the D.C. Circuit on this

issue. Federal courts do not have authority to review the

Commission's actions for compliance with APA provisions, at least

insofar as the adequacy of the statement of the basis and purpose

of an amendment is concerned.

II.

 Wimbush also contends that the use of his prior convictions

for burglary and involuntary manslaughter to increase his base

offense level under § 2K2.1(a)(2) and also to determine his

criminal history points under § 4A1.1 constituted "impermissible

double counting" of those convictions.

 The crime of unlawful possession of a firearm warrants a base

offense level of 24 where the defendant has two previous felony

convictions for a "crime of violence." U.S.S.G. § 2K2.1(a)(2). In

determining the applicable criminal history category, a defendant

receives three points for a previous sentence of imprisonment

greater than one year and one month. U.S.S.G. § 4A1.1(a). Thus,

a prior violent crime conviction is counted once under §

2K2.1(a)(2) and again under § 4A1.1(a), and that happened in this

case. But double counting a factor under different guidelines is

permitted if the Commission intended that result and if "each
section concerns conceptually separate notions relating to

sentencing." United States v. Aimufua, 935 F.2d 1199, 1201 (11th

Cir.1991).

We have previously held that a defendant's prior felony

conviction can be considered to determine both his base level

offense under § 2K2.1(a) and his criminal history category under §

4A1.1. United States v. Wyckoff, 918 F.2d 925, 927 (11th

Cir.1990). Our Wyckoff decision forecloses Wimbush's contention.

III.

The judgment entered in this case indicates that Wimbush was

convicted of "18 U.S.C. § 911(g) Possession of a Firearm by a

Convicted Felon." The section reference is a scrivener's error.

Section 911 involves the crime of falsely impersonating a federal

officer or employee, and that statutory provision has no

subsections. Wimbush was actually indicted for, pleaded guilty to,

and was convicted of, violating 18 U.S.C. § 922(g), which is the

provision prohibiting possession of a firearm by a convicted felon.

The sentencing hearing and the arguments in this appeal concern

that firearm offense, not any § 911 offense. The judgment should

be amended accordingly, and we remand for that limited purpose.

IV.

Wimbush's sentence is AFFIRMED. The case is REMANDED solely

for the purpose of correcting the judgment to reflect the crime for

which Wimbush was actually convicted and sentenced.