                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           APR 11 2005
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                     PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 02-3101
    v.                                         (D.C. No. 99-CR-10129-03-MLB)
                                                           (D. Kan.)
    VICTOR C. WHEELER,

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before HENRY , BARRETT , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Defendant seeks review of his sentence, imposed following his plea of

guilty to a one-count information charging him with brandishing a firearm during

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

challenges the district court’s decision to depart upward from the statutory

mandatory minimum sentence of eighty-four months, which is the sentence

directed by § 2K2.4 of the United States Sentencing Guidelines (USSG), and he

challenges the degree of the district court’s departure. Exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we reverse and remand for

imposition of a sentence of eighty-four months.      2




Defendant’s First Sentence

       Defendant and two co-defendants were convicted for their roles in an armed

robbery of a Sonic Restaurant in Wichita, Kansas. The district court initially

imposed a sentence of 106 months on defendant, and he appealed. We concluded

on appeal that, under the version of USSG § 2K2.4 then in effect, the district


1
      The original charges also included robbery (18 U.S.C. § 1951) and using
a short-barreled shotgun during a crime of violence (18 U.S.C. § 924(c)(1)(B)(i)).
2
       Defendant has cited as supplemental authority the Supreme Court’s
decision in Blakely v. Washington , 124 S. Ct. 2531 (2004) (invalidating state
sentence above maximum of standard statutory range, based on sentencing judge’s
findings, as violative of defendant’s Sixth Amendment right to jury trial). In light
of our disposition in this case, we need not consider the effect of Blakely , if any,
on the sentence imposed by the district court.

                                            -2-
court was authorized to impose a sentence above the statutory mandatory

minimum. United States v. Wheeler , 230 F.3d 1194, 1196-97 (10th Cir. 2000)

(Wheeler I ). We further concluded, however, that the methodology the district

court used to determine defendant’s sentence was erroneous as a matter of law.

Id. at 1195-96. We therefore remanded the matter for resentencing.   Id. at 1197.



Defendant’s Second Sentence

      The district court resentenced defendant using the 2000 version of the

Sentencing Guidelines, which amended USSG § 2K2.4 to provide that the

guideline sentence for a violation of 18 U.S.C. § 924(c) is the minimum term of

imprisonment required by the statute. For defendant, that mandatory minimum is

eighty-four months. 18 U.S.C. § 924(c)(1)(A)(ii). Application Note 1 to the

amended guideline provides that a sentence above the minimum term of § 924(c)

constitutes an upward departure. USSG § 2K2.4, cmt. n.1.

      At the resentencing hearing, counsel for the government acknowledged that

the new guideline sentence was the mandatory minimum of eighty-four months

and specifically stated that the government was not asking for an upward

departure. Counsel further stated that eighty-four months would be a “fair

sentence,” that he did not see a ground for an upward departure, and that had he

been seeking an upward departure, he would not have dismissed the other


                                          -3-
charges. R., Vol. III, doc. 94, at 11. Defense counsel also argued in favor of an

eighty-four-month sentence. But the district court decided to depart upward once

again, based on defendant’s criminal history. This time, the district court

imposed a sentence of ninety-two months. Defendant appealed.

       Applying a unitary abuse of discretion standard of review on appeal, we

concluded that a defendant’s serious criminal history is a permissible ground for

departure under § 2K2.4, but that the district court had not made adequate factual

findings to support a departure here.     United States v. Wheeler , 28 Fed. Appx.

813, 815-16 (10th Cir. Nov. 20, 2001) (    Wheeler II ). We held that 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.”

Id. at 815. We also held that the district court had not provided a sufficient

explanation of its methodology for us to determine whether the degree of its

departure was reasonable.    Id. at 816-17. We therefore remanded the case for

resentencing once again.

       By way of instruction on remand, we advised the district court to take

guidance from the application notes to § 2K2.4, including Application Note 3,

which prohibits a court from applying Chapter 4 of the Guidelines–relating to

criminal history and criminal livelihood–when sentencing a defendant under

§ 2K2.4. Wheeler II , 28 Fed. Appx. at 816. Consistent with Application Note 1,


                                            -4-
which permits an upward departure to reflect the seriousness of a defendant’s

criminal history, we directed that “the district court may consider only the

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

outside the heartland.”   Id. We advised the district court that it “must identify the

specific details of [defendant’s criminal] history that take [him] outside the

heartland.” Id. Finally, we cautioned the district court   that if it chose to depart

upward again , “it must support the degree of that departure with an appropriate

and reviewable explanation.”    Id. at 817.



Defendant’s Third Sentence

       On remand, the government and defense counsel filed resentencing

memoranda. In its memorandum, the government noted that defendant had four

prior juvenile adjudications, but no prior criminal convictions, and that the

district court was not permitted to apply Chapter 4 of the Guidelines. Beyond

that, the government merely repeated this court’s admonition in     Wheeler II that

the district court must articulate its reasons for any upward departure. The

government did not request an upward departure, nor did it argue that defendant’s

criminal history was so serious as to take him outside the heartland of § 2K2.4.

       For his part, defendant argued that the changes made to the Sentencing

Guidelines since the initial sentencing had substantially altered the use of


                                           -5-
criminal history as a ground for imposing a sentence above the statutory

minimum. Defendant noted that the heartland sentence under USSG § 2K2.4 is

the mandatory minimum sentence, and that the only example Application Note 1

provides of a situation that might warrant departure due to a defendant’s criminal

history is when the defendant’s criminal history would qualify him as a career

offender were it not for the fact that the Chapter 4 guidelines do not apply to

§ 946(c) offenses. Defendant pointed out that even if the Chapter 4 guidelines

applied to him, he would not qualify as a career offender, and he argued that his

criminal history was not so serious as to take him outside the heartland.

      In its Memorandum and Order, the district court rejected defendant’s

arguments and again made an upward departure based on defendant’s criminal

history. The district court based its analysis on four factors outlined by this court

in United States v. Bartsma , 198 F.3d 1191, 1195 (10th Cir. 1999). Those factors

are: (1) whether the factual circumstances supporting a departure are permissible

factors; (2) whether the factors remove the defendant from the guideline

heartland, warranting a departure; (3) whether the record supports the factual

basis underlying the departure; and (4) whether the degree of departure is

reasonable. Id.

      The district court determined that the first factor was satisfied by this

court’s statement in Wheeler II that a defendant’s serious criminal history is a


                                          -6-
permissible ground for departure under § 2K2.4. Moving on to the third factor,

the court recited the facts of the present offense and those of a similar juvenile

offense and determined that “the facts set forth in the presentence report

regarding defendant’s juvenile record present a sufficient factual basis to support

an upward departure based upon the seriousness of defendant’s criminal history,”

R. Vol. I, doc. 104, at 8.

       Returning to the second factor, the court did not first determine what

constitutes the heartland under § 2K2.4, as we had directed it to do in     Wheeler II .

Rather, the court looked at the introductory comments to Chapter 4 concerning the

relationship between a defendant’s criminal history and the purposes of

sentencing and the background commentary to USSG § 4A1.3 concerning

departures based on the failure of the defendant’s criminal history category to

adequately reflect the seriousness of his criminal history or the likelihood of

recidivism. Guided by these comments,       3
                                                the court found that the “similarity” and

“relative close proximity” of the instant offense and a prior juvenile offense were

“accepted guideline factors which demonstrate a serious criminal history




3
       Defendant argues on appeal that the district court’s consideration of these
policies expressed in Chapter 4 violated the prohibition contained in Application
Note 3 to USSG § 2K2.4 against applying Chapter 4 to any offense sentence
under USSG § 2K2.4. In light of our ultimate disposition here, we need not
decide whether the district court’s reliance on these general policies was error.

                                            -7-
sufficient to remove defendant from the heartland sentence.” R. Vol. I, doc. 104,

at 10.

         Moving on to the fourth factor, the court stated it would determine the

degree of departure by analogizing to the Sentencing Guidelines. The court

explained its methodology as follows:

         Under the guidelines, defendant’s criminal history category is V and
         his offense level is 22. Wheeler I at 1196-97. This yields a
         guideline range of 77-96 months. The Circuit specifically found that
         “If the low end of the guidelines range is less than seven 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.” Id. at 1196. This court’s sentence of ninety-two months
         falls within the discretion permitted by the Circuit. Moreover, the
         departure falls in the middle of the guideline range determined in
         Wheeler I , which means that if this was a guideline case, the
         sentence would be essentially unreviewable and, by implication,
         reasonable. 18 U.S.C. § 3742(a) and (e).

R., Vol. I, doc. 104, at 10-11.

         Defendant appeals both the decision to depart upward and the degree of

that departure.



Standard of Review

         The law governing our standard of review changed recently due to the

Supreme Court’s decision in     United States v. Booker , 543 U.S. ___, 125 S. Ct.

738 (2005). Booker excised from the Sentencing Reform Act provisions that


                                           -8-
made the Sentencing Guidelines mandatory and provisions that prescribed

standards of review for guideline sentences.      Id. at 764. Before it was excised,

18 U.S.C. § 3742(e) directed that when reviewing a sentence that departed from

the guidelines, we should “give due deference to the district court’s application of

the guidelines to the facts” except with respect to certain determinations,

including whether the facts of the case justified a departure. That determination

we were to review de novo.     Id. After the Supreme Court excised § 3742(e), the

Court held that appellate courts should now review sentences under a

reasonableness standard.     Booker , 125 S. Ct. at 765-66.

       “Although the Guidelines are now advisory, district courts must still

‘consult the Guidelines and take them into account when sentencing.’ Thus,

appellate review continues to encompass review of the district court’s

interpretation and application of the Guidelines.”     United States v. Doe ,

___F.3d___, 2005 WL 428916, at *2 n.5 (10th Cir. Feb. 24, 2005) (quoting

Booker , 125 S. Ct. at 767). Our review of the district court’s application of the

Guidelines leads us to conclude that it was legally erroneous.



Analysis

       As we held in Wheeler II, a district court may depart upward from the

statutory minimum sentence prescribed in § 2K2.4 if the facts establish that the


                                            -9-
defendant’s criminal history is sufficiently serious to justify a departure. The

district court concluded that defendant’s juvenile record was sufficiently serious

to justify such a departure. Our own assessment of defendant’s criminal history

differs. In our judgment, defendant’s criminal history is not substantially

different from that of other defendants sentenced under § 2K2.4, and were we still

operating under the de novo standard of review provided in 18 U.S.C. § 3742(e),

we would reverse on this basis alone. In addition, however, the district court

erred as a matter of law in the methodology it used to arrive at defendant’s

sentence.

       The district court reached a sentence of ninety-two months by calculating

what defendant’s criminal history category would have been if the Chapter 4

guidelines applied, and then combining that with defendant’s offense level to

derive what it called a “guideline range” of seventy-seven to ninety-six months.

R. Vol. I, doc. 104, at 10. The court then considered our instructions in      Wheeler I

about how to determine when a sentence in excess of eighty-four months could be

imposed under the old version of § 2K2.4, and concluded that a sentence of

ninety-two months fell within the sentencing discretion permitted by        Wheeler I .

The district court further reasoned that a sentence of ninety-two months fell “in

the middle of the guideline range determined in      Wheeler I , which means if this




                                           -10-
was a guideline case, the sentence would be essentially unreviewable and, by

implication, reasonable.” R. Vol. I, doc. 104, at 10.

       There are several problems with the district court’s methodology. First, the

Guidelines expressly prohibit the district court from applying the Chapter 4

provisions to defendant, and “[t]he sentence to which an offender would have

been subject under a patently inapplicable guideline is of no relevance to

determining the sentence which should have been imposed,”       United States v.

Simmons , 368 F.3d 1335, 1342 (11th Cir. 2004). Second, the “guideline range”

applicable to defendant’s offense is not seventy-seven to ninety-six months, but

eighty-four months;   4
                          any higher sentence is an upward departure. The district

court’s reference to a different range and supposition that a sentence within that

range would be essentially unreviewable and thus reasonable, is legally erroneous.

Third, the district court’s reliance on language in   Wheeler I about the appropriate

method for calculating a sentence under § 2K2.4 is misplaced.      Wheeler I

involved an earlier version of § 2K2.4 that has no application here.




4
      “The term ‘guideline range’ includes a guideline range having the same
upper and lower limits, such as the minimum mandatory sentence of [eighty-four]
months for a violation of 18 U.S.C. § 924(c).” Doe , 2005 WL 428916, at *1 n.2
(brackets, quotation, and citation omitted).

                                            -11-
      Because the district court’s methodology was legally flawed, we must

reverse the sentence it imposed. In the usual case, we would remand to the

district court with directions to resentence defendant.

      But this is not the usual case. The statutory minimum and guideline

sentence in this case is eighty-four months, which is seven years. Defendant was

first sentenced on March 14, 2000, and now five years later, he is still uncertain

what sentence he is to serve. The government has never requested a sentence

above eighty-four months–neither at the initial sentencing, nor at either of the two

subsequent resentencings. To the contrary, the government has argued that a

sentence of eighty-four months is fair and appropriate, and that there are not

grounds for an upward departure. Defendant cannot receive a sentence below

eighty-four months, because that is the statutory mandatory minimum. The

district court has had three opportunities to sentence defendant and has yet to

impose a sentence that is valid. Each time the district court has chosen to impose

a sentence in excess of the statutory minimum, and each time it has failed to

adequately justify its sentence. The district court began with a sentence of 106

months and has since lowered it to ninety-two months.

      Based on the unusual circumstances of this case, we conclude it would not

be appropriate to simply remand this case for yet more sentencing proceedings.

Eighty-four months is the presumptive sentence under the Guidelines and the


                                         -12-
statute for the offense of conviction here, and that sentence is clearly proper in

this case. We therefore REVERSE and REMAND to the district court with

instructions to vacate defendant’s current sentence and impose a sentence of

eighty-four months.



                                                     ENTERED FOR THE COURT

                                                     PER CURIAM




                                         -13-
