                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 20 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-3405
v.                                                  (District of Kansas)
                                                  (D.C. No. 99-CR-10129)
VICTOR C. WHEELER,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BARRETT, and MURPHY, Circuit Judges.


      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, pleaded guilty to a charge of brandishing a

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


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Wheeler was originally sentenced to a term of 106 months’ imprisonment.

Wheeler appealed and this court instructed the district court to vacate Wheeler’s

sentence and resentence him.      See United States v. Wheeler , 230 F.3d 1194 (10th

Cir. 2000). On remand, Wheeler was resentenced to ninety-two months’

incarceration. Wheeler then brought the appeal currently before this court,

arguing the district court erred when it departed upward from the minimum

mandatory sentence 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.

       Section 2K2.4 of the United States Sentencing Guidelines (“U.S.S.G.”)

was amended after Wheeler’s initial sentencing and the district court properly

applied the current version of § 2K2.4 when it resentenced him.       See United

States v. Easterling , 157 F.3d 1220, 1225 (10th Cir. 1998) (“It is well-settled that

when a district court vacates a sentence and resentences a defendant, the court is

governed by the guidelines in effect at the time of resentence, subject of course

to the ex post facto clause.” (quotation omitted)).   1
                                                          As amended, § 2K2.4(a)(2)

now provides that when a defendant is convicted of violating 18 U.S.C. § 924(c),

“the guideline sentence is the minimum term of imprisonment required by




      Neither party argues that the application of the current version of U.S.S.G.
       1

§ 2K2.4 at Wheeler’s resentencing violated the Ex Post Facto Clause.

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statute.” In Wheeler’s case, the applicable statute is 18 U.S.C. § 924(c)(1)(A)(ii)

which provides, in part:

      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 . . . if the firearm is brandished, be sentenced
      to a term of imprisonment of not less than 7 years . . . .

The application notes to § 2K2.4 state that, “[a] sentence above the minimum

term required by 18 U.S.C. § 924(c) . . . is an upward departure from the

guideline sentence.” U.S.S.G. § 2K2.4, cmt. n.1 (2000). Thus, the ninety-two

month sentence imposed by the district court at Wheeler’s resentencing is an

upward departure under the guidelines because it exceeds eighty-four months.

      When reviewing a district court’s decision to depart from the sentencing

guidelines, this court determines

      (1) whether the factual circumstances supporting a departure are
      permissible departure factors; (2) whether the departure factors
      relied upon by the district court remove the defendant from the
      applicable Guideline heartland thus warranting a departure, (3)
      whether the record sufficiently supports the factual basis underlying
      the departure, and (4) whether the degree of departure is reasonable.

United States v. Collins , 122 F.3d 1297, 1302 (10th Cir. 1997). These four

questions are reviewed under a unitary abuse of discretion standard with legal




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conclusions reviewed de novo and findings of fact reviewed for clear error.       See

United States v. Duncan , 242 F.3d 940, 944 (10th Cir. 2001).

       The application notes to § 2K2.4 specifically allow a sentencing court to

base an upward departure on “the seriousness of the defendant’s criminal

history.” U.S.S.G. § 2K2.4, cmt. n.1 (2000). When the district court resentenced

Wheeler to ninety-two months’ imprisonment, it stated, “the Court finds pursuant

to Section 2K2.4, application note 1, of the guidelines that an upward departure

is warranted in this case because of the Defendant’s criminal history.” Thus, the

ground upon which the district court based the departure is a permissible

departure factor.

       Once the district court identifies a permissible departure factor, it must

then determine whether the factor moves the defendant outside the applicable

guideline heartland.    See Collins , 122 F.3d at 1303. The district court must first

determine what constitutes a guideline’s heartland, and must then identify the

factual basis for a conclusion that the instant case is atypical.   See id. at 1304; see

also United States v. Sicken , 223 F.3d 1169, 1173 (10th Cir. 2000). Wheeler

argues that the district court made no factual findings to support its conclusion

that his criminal history supported an eight-month upward departure and the

government concedes error on this point. We agree with the parties that the lack

of factual findings makes it impossible for this court to review the district court’s


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conclusion that Wheeler’s criminal history takes him outside the heartland of

defendants convicted of violating 18 U.S.C. § 924(c)(1)(A)(ii) and sentenced

pursuant to U.S.S.G. § 2K2.4(a)(2). We must, therefore, remand for

resentencing.

       On remand, the district court will be guided by the application notes to §

2K2.4, one of which specifically prohibits a court from applying Chapter Four of

the guidelines when sentencing a defendant pursuant to § 2K2.4.     See U.S.S.G. §

2K2.4, cmt. n.3 (2000) (“Do not apply . . . Chapter Four (Criminal History and

Criminal Livelihood) to any offense sentenced under this guideline.”). Chapter

Four contains guidelines relating to the calculation of a defendant’s criminal

history category. Thus, although a Presentence Investigation Report (“PSR”)

containing a calculation of Wheeler’s criminal history category was prepared

before Wheeler’s initial sentencing, that calculation will be of limited use during

the resentencing.

       Consistent with Application Note 1, the district court may consider only

the seriousness of Wheeler’s criminal history and determine whether it takes him

outside the heartland.   See id. , cmt. n.1 (2000). Thus, substantive information

contained in the PSR relating to the nature of Wheeler’s criminal history can be

considered by the district court. The court must identify the specific details of

that history that take Wheeler outside the heartland. As an example, Application


                                          -5-
Note 1 suggests that a defendant whose serious criminal history would have

resulted in his classification as a career offender if § 4B1.1 of the guidelines

applied, may be outside the heartland.   See id. (“A departure may be warranted . .

. in a case in which the defendant is convicted of an 18 U.S.C. §924(c) . . .

offense and has at least two prior felony convictions for a crime of violence or a

controlled substance offense that would have resulted in application of § 4B1.1

(Career Offender) if that guideline applied to these offenses.”).

      Wheeler also argues that the methodology employed by the district court to

arrive at the degree of the upward departure was flawed. The district court

explained its methodology as follows:

      I agree that if this was a guideline case that the guideline range
      would be 77 to 96 months. Now, if you spread over that guideline
      range six criminal history category levels, you come out with
      approximately three months per level. And at criminal history
      category 5 that means you take three months, multiply it times five,
      to reach a 15 month—I don’t know that it’s 15 months of anything.
      It’s just a 15 month figure. If you add that 15 month figure to the 77
      month bottom guideline sentence, and that equals a 92 month
      sentence, which in effect is an [8] month sentence departing from the
      84 month mandatory minimum.

We agree that the district court’s explanation of the methodology it used does not

provide this court with a sufficient basis upon which to determine whether the

degree of the departure was reasonable.

      While the district court employed a methodology capable of being reduced

to a mathematical formula, the proper focus is not on crafting such a formula. A

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sentencing court, instead, must “specifically articulate reasons for the degree of

departure using any reasonable methodology hitched to the Sentencing

Guidelines, including extrapolation from or analogy to the Guidelines.”    United

States v. Bartsma , 198 F.3d 1191, 1196 (10th Cir. 1999) (quotation omitted).

While the district court’s methodology was ostensibly hitched to the guidelines,

the court simply spread the difference between the low and high ends of the

hypothetical guideline range over the total number of possible criminal history

categories. This mathematical formula, standing alone, is not an appropriate use

of the guidelines to justify the degree of an upward departure. If, on remand, the

district court again departs upward, it must support the degree of that departure

with an appropriate and reviewable explanation.

      This court remands to the district court to vacate Wheeler’s sentence and

resentence him consistent with this opinion.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




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