                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 02-1024 & 02-1285
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                               v.


DEONCO A. HOWARD and EDWARD POINTER,
                                          Defendants-Appellants.
                        ____________
           Appeals from the United States District Court
               for the Eastern District of Wisconsin.
          No. 92 CR 208—Rudolph T. Randa, Chief Judge.
                        ____________
   ARGUED SEPTEMBER 9, 2003—DECIDED DECEMBER 12, 2003
                        ____________

  Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.
  RIPPLE, Circuit Judge. Deonco Howard and Edward Pointer
(“defendants”) were each indicted on one count of bank
robbery, see 18 U.S.C. § 2113, and one count of using and
carrying a firearm to commit a crime of violence, see 18
U.S.C. § 924(c). On February 22, 1993, a jury found both de-
fendants guilty on each count. Mr. Howard was sentenced
to 108 months’ imprisonment for count one and to 60 con-
secutive months’ imprisonment for count two. Mr. Pointer
was sentenced to 232 months’ imprisonment for count one
and to a consecutive 60 months’ imprisonment for count
2                                     Nos. 02-1024 & 02-1285

two. The defendants filed a motion to modify their terms
of imprisonment pursuant to 18 U.S.C. § 3582(c)(2) based on
retroactive sentencing guideline Amendment 599. On
December 14, 2001, the district court denied the defendants’
motions; this appeal followed. For the reasons set forth in
the following opinion, we affirm the judgments of the
district court.


                               I
                      BACKGROUND
A. Facts
   Deonco Howard and Edward Pointer were both convicted
on one count of bank robbery, 18 U.S.C. § 2113, and one
count of using and carrying a firearm to commit a crime of
violence, 18 U.S.C. § 924(c). They were both sentenced
under the 1992 United States Sentencing Guidelines Manual
(“Guidelines”). The Guidelines section for the use of a
firearm in violation of 18 U.S.C. § 924(c) in effect at the time
of their conviction generally prohibited courts from apply-
ing specific offense characteristics “for the possession, use,
or discharge of a firearm” to the “underlying offense.”
U.S.S.G. § 2K2.4, cmt. n.2 (1992). However, there was an
exception to this prohibition
    where the maximum of the guideline range . . . adjusted
    under the procedure described in the preceding para-
    graph [prohibiting specific offense characteristics for the
    possession, use, or discharge of a firearm], plus the term
    of imprisonment required under 18 U.S.C. § 924(c) . . .,
    is less than the maximum of the guideline range that
    would apply to the underlying offense absent such
    adjustment.
Id. ¶ 2. In that event, with respect to the underlying offense,
the general prohibition against specific offense characteris-
Nos. 02-1024 & 02-1285                                           3

tics for the possession, use, or discharge of a firearm did not
apply. Instead, the sentencing court was instructed that “the
guideline range applicable to the underlying offense absent
                  1
such adjustment is to be used after subtracting the term of
imprisonment imposed under 18 U.S.C. § 924(c) . . . from
both the minimum and maximum of such range.” Id.
  In this case, the court, relying on the Presentence
Investigation Reports (“PSR”), followed this exceptional
method to compute the defendants’ sentencing range be-
cause the preliminary calculation of the sentence had pro-
duced a sentence lower than the one that the defendants
would have received if they had not been charged under
18 U.S.C. § 924(c). Implementing this special formula,
the PSR started from a base offense level of 20 for the
robbery count. Next, enhancements were applied for spe-
cific offense characteristics for: taking the property of a
financial institution, § 2B3.1(b)(1); discharge of a fire-
arm, § 2B3.1(b)(2); a victim sustaining bodily injury,
§ 2B3.1(b)(3); and loss exceeding $10,000, § 2B3.1(b)(6)
        2
(1992). This methodology produced an applicable sen-
tencing range from 292 to 365 months’ imprisonment for
Mr. Pointer and 135 to 168 months for Mr. Howard. Sixty
months were then subtracted from these sentencing ranges
to produce, with respect to the underlying offense, the final
sentencing ranges of 232-305 and 75-108 months’ imprison-
ment for Howard and Pointer, respectively. The court then
added the mandatory 60 consecutive months required by §
924(c).
  After the defendants were sentenced in 1993, the commen-
tary to the Guidelines was amended to change the computa-


1
    That is, the omission of specific offense characteristics.
2
  In the current version of the Guidelines this section is found in
§ 2B3.1(b)(7).
4                                     Nos. 02-1024 & 02-1285

tion method to be employed in such extraordinary situa-
tions. The amendment implementing this change in method-
ology, Amendment 489, was not made retroactive. See §
1B1.10. Under this new method, the specific offense charac-
teristics for the possession, use, or discharge of a firearm for
the underlying offense were not added to the base offense.
Instead, the mandatory 60-month § 924(c) sentence was
added immediately. If the resulting sentence was shorter
than the one that would have been imposed in the absence
of any § 924(c) offense, the district court could depart
upward. However, it was not required to do so.
  The commentary concerning this calculation procedure
was again amended in November 2000 by Amendment 599,
which was made retroactive. See id. Relying on this latter
change, the defendants filed their 18 U.S.C. § 3582(c)(2) mo-
tions; they submitted that the earlier methodology had
subjected them to impermissible double counting.


B. District Court Proceedings
  In December 2001, the district court denied the defen-
dants’ motions for modification of sentence. The district
court held that:
    the “double counting” problem posed by the 7-level
    enhancement for discharging a firearm combined with
    a 924(c) count had been identified, and the sentencing
    guideline rules in place at that time dealt with the
    problem by subtracting the 60 months for the 924(c)
    conviction from the 7-level “enhanced” guideline range,
    effectively nullifying the sentence for the 924(c) count.
R.125 (Pointer); R.126 (Howard). The district court therefore
held that the double-counting problem had been addressed
Nos. 02-1024 & 02-1285                                               5

adequately in the methodology employed by the district
court at the time that Howard and Pointer were sentenced.


                                  II
                           DISCUSSION
  Messrs. Howard and Pointer both submit that, by virtue
of Amendment 599, the term of imprisonment for their
offense was reduced after they were sentenced and that they
therefore deserve a reduction of their term of imprisonment
                                    3
pursuant to 18 U.S.C. § 3582(c)(2). Specifically, the defen-
dants contend that Amendment 599 to the Guidelines
modified the commentary for U.S.S.G. § 2K2.4 pertaining
to the use of a firearm in relation to certain crimes. The
defendants acknowledge that Amendment 599 does not in-
corporate explicitly the non-retroactive formula adopted
in Amendment 489. They nevertheless contend that Amend-


3
    In relevant part the statute provides:
      (c) Modification of an imposed term of imprisonment.—The
      court may not modify a term of imprisonment once it has
      been imposed except that—
      ...
      (2) in the case of a defendant who has been sentenced to a
      term of imprisonment based on a sentencing range that has
      subsequently been lowered by the Sentencing Commission
      pursuant to 28 U.S.C. 994(o), upon motion of the defendant
      or the Director of the Bureau of Prisons, or on its own
      motion, the court may reduce the term of imprisonment,
      after considering the factors set forth in section 3553(a) to the
      extent that they are applicable, if such a reduction is consis-
      tent with applicable policy statements issued by the Sentenc-
      ing Commission.
6                                        Nos. 02-1024 & 02-1285

ment 599 implicitly incorporates the methodology set forth
in Amendment 489. Consequently, the defendants submit,
the district court should have re-calculated their sentences
within the framework established by Amendment 489. This
procedure would have permitted the district court to
consider conduct-related enhancements for the underlying
offense in the context of a discretionary upward departure.
  An interpretation of the United States Sentencing
Guidelines and amendments presents a question of law that
we reviewed de novo. See United States v. Neal, 46 F.3d 1405,
1407 (7th Cir. 1995) aff’d, Neal v. United States, 516 U.S. 284
(1996).


A. Double Counting Generally
   An individual who uses, brandishes or discharges a
firearm in the course of committing a robbery faces an en-
hancement of his sentence in one of two ways. First, a
sentencing court may enhance the sentence for robbery
according to Guideline § 2B3.1(b)(2) that addresses weapon
enhancements for robbery. See U.S.S.G. § 2B3.1(b)(2); United
States v. White, 222 F.3d 363, 373 (7th Cir. 2000) (discussing
the alternate enhancement procedures). Alternatively, be-
cause robbery is a crime of violence, the individual charged
with robbery may be charged also with a separate violation
of 18 U.S.C. § 924(c). This section provides a mandatory
consecutive 60-month sentence for any person who uses or
carries a firearm in furtherance of a crime of violence or
                           4
drug trafficking offense. The Government is free to pro-


4
    18 U.S.C. § 924(c) provides in relevant part that
      any person who, during and in relation to any crime of
                                                (continued...)
Nos. 02-1024 & 02-1285                                             7

ceed under either method of enhancement. White, 222 F.3d
at 373. However, if both the Guideline weapon enhance-
ments for robbery and the sentence for § 924(c) are imposed,
the combination effectively double counts the use of the
firearm. See U.S.S.G. § 2K2.4, cmt. n.2 (1992); United States v.
Mrazek, 998 F.2d 453, 454 (7th Cir. 1993) (noting that a §
924(c) conviction precludes weapon enhancements).


B. Original Sentencing Procedure
  When the district court sentenced Mr. Howard and
Mr. Pointer, the Guidelines contained a procedure to avoid
such double counting. See U.S.S.G. § 2K2.4, cmt. n.2
       5
(1992). The district court, aware of the potential for double
counting, employed that methodology.



4
    (...continued)
       violence or drug trafficking crime . . . 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 or drug trafficking
       crime—
          (i) be sentenced to a term of imprisonment of not less
          than 5 years.
5
    The commentary in § 2K2.4 provided,
      Where a sentence under this section is imposed in conjunc-
      tion with a sentence for an underlying offense, any specific
      offense characteristic for the possession, use, or discharge of
      a firearm (e.g., §2B3.1(b)(2)(A)-(F) (Robbery)), is not to be
      applied in respect to the guidelines for the underlying
      offense.
    U.S.S.G. § 2K2.4, cmt. n.2 (1992).
8                                       Nos. 02-1024 & 02-1285

   Under this earlier version of § 2K2.4, the general rule
prohibited the application of the specific offense characteris-
tics for the possession, use or discharge of a firearm to the
underlying offense when an individual was also convicted
of a § 924(c) violation. See U.S.S.G. § 2K2.4, cmt. n.2 (1992).
  However, there was an exception to this general prohi-
bition against applying the specific offense characteristics
relating to weapon enhancements. The commentary at
that time provided an alternate procedure to be employed
whenever the underlying conviction without enhancements
together with the § 924(c) conviction resulted in a shorter
sentence than would have been imposed if the defendant
had not been charged under § 924(c) and the guideline
weapon enhancements had been employed. See U.S.S.G. §
                            6
2K2.4, cmt. n.2, ¶ 2 (1992). This exception applied to Mr.
Howard and Mr. Pointer. The district court therefore started
with the base offense level of 20 for the underlying robbery
offense. Then, various guideline enhancements were added
for specific offense characteristics, one of which was for


6
  The second paragraph of § 2K2.4, cmt. n.2 (1992), indicated that
paragraph one’s normal calculation procedure applied except
    where the maximum of the guideline range from Chapter
    Five, Part A (Sentencing Table) determined by an offense
    level adjusted under the procedure described in the proceed-
    ing paragraph, plus the term of imprisonment required
    under 18 U.S.C. § 924(c) . . ., is less than the maximum of the
    guideline range that would apply to the underlying offense
    absent such adjustment, the procedure described in the
    proceeding paragraph does not apply. Instead, the guideline
    range applicable to the underlying offense absent such ad-
    justment is to be used after subtracting the term of imprison-
    ment imposed under 18 U.S.C. § 924(c) . . . from both the
    minimum and maximum of such range.
Nos. 02-1024 & 02-1285                                              9

conduct related to the discharge of a weapon. Next, follow-
ing the guideline procedure in § 2K2.4, the district court
subtracted 60 months from the maximum and minimum
guideline range of the robbery sentence to avoid any double
counting. See Howard PSR at ¶ 104; Pointer PSR at ¶ 79.
Finally, the district court imposed a 60-month consecutive
sentence for the § 924(c) offense. R.53; see U.S.S.G. § 2K2.4,
cmt. n.2 (1992). This 60-month subtraction procedure
eliminated the double-counting problem inherent in using
the weapon enhancements with a separate § 924(c) convic-
tion. See United States v. Johnson-Dix, 54 F.3d 1295, 1310-11
(7th Cir. 1995) (holding that the 60-month subtraction
method was not impermissible double counting).


C. Amended 489 Procedure
  In November of 1993, a new method of dealing with the
double-counting problem in these exceptional cases was
             7
implemented. The 1993 Guidelines left unchanged the


7
  The first paragraph of Application Note 2 was left unchanged,
but paragraph 2 was replaced by the text below:
    In a few cases, the offense level for the underlying offense
    determined under the preceding paragraph may result in a
    guideline range that, when combined with the mandatory
    consecutive sentence under 18 U.S.C. § 844(h), § 924(c), or
    § 929(a), produces a total maximum penalty that is less than
    the maximum of the guideline range that would have re-
    sulted had there not been a count of conviction under 18
    U.S.C. § 844(h), § 924(c), or § 929(a) (i.e., the guideline range
    that would have resulted if the enhancements for possession,
    use, or discharge of a firearm had been applied). In such a
    case, an upward departure may be warranted so that the
    conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) does
                                                        (continued...)
10                                        Nos. 02-1024 & 02-1285

general prohibition against applying specific offense char-
acteristics for the possession, use, or discharge of a firearm
to the underlying offense when there was also a separate
                       8
§ 924(c) conviction. U.S.S.G. § 2K2.4, cmt. n.2 (1993).
However, when the underlying conviction (without the
guideline enhancements for the specific offense character-
istics for the possession, use, or discharge of a firearm) and
the § 924(c) conviction produced a shorter sentence than the
underlying conviction with its enhancements but without
the § 924(c) conviction, a new method of calculation was to
be used. See U.S.S.G. app. C, amend. 489. Under the new
method, the weapon enhancements are not added to the
underlying offense, but the § 924(c) sentence is immediately
added. The district court may then determine that it will
depart upwardly because the resulting sentence does not
adequately represent the gravity of the defendant’s actions.
See U.S.S.G. § 2K2.4, cmt. n.2 (1993); see also United States v.
Banks Giombetti, 245 F.3d 949, 953-54 (7th Cir. 2001) (describ-
ing the upward departure procedure while upholding the
court’s upward departure); United States v. Ledford, 218 F.3d
684, 689 n.1 (7th Cir. 2000) (noting that the upward depar-
ture calculation procedure ensured the defendant did not


7
    (...continued)
       not result in a decrease in the total punishment. An upward
       departure under this paragraph shall not exceed the maxi-
       mum of the guideline range that would have resulted had
       there not been a count of conviction under 18 U.S.C. § 844(h),
       § 924(c), or § 929(a).
    U.S.S.G. § 2K2.4, cmt. n.2 (1993).
8
  A violation of § 924(c) then, and today, requires a person to use
or carry a firearm “in relation to any crime of violence . . . for
which the person may be prosecuted in a court of the United
States.” 18 U.S.C. § 924(c).
Nos. 02-1024 & 02-1285                                   11

get a more lenient sentence with the § 924(c) conviction);
United States v. Seawood, 172 F.3d 986, 990 (7th Cir. 1999)
(recognizing that Application Note 2 to § 2K2.4 permits an
upward departure in circumstances where the § 924(c)
conviction would result in a shorter sentence). This upward
departure replaces the former 60-month subtraction proce-
dure for those few exceptional cases. Amendment 489 was
not made retroactive. See U.S.S.G. § 1B1.10(c) (listing
amendments that are intended to be retroactive). Amend-
ment 489 merely “simplifie[d] the operation of §2K2.4 in
order to reduce erroneous application” of that guideline
sentencing provision. U.S.S.G. app. C, amend. 489 (1993)
(explaining the amendments to the commentary of § 2K2.4).


D. Amendment 599
   Later, on November 1, 2000, Amendment 599 modi-
fied the commentary to U.S.S.G. § 2K2.4. In contrast to
Amendment 489, Amendment 599 was made retroactive. See
U.S.S.G. § 1B1.10(c). Mr. Howard and Mr. Pointer submit
that this amendment makes available the procedure of a
discretionary upward departure. In their view, Amendment
599 must be read in conjunction with Amendment 489.
When read in this fashion, the retroactive Amendment 599
incorporates the discretionary upward departure procedure
and makes it available to their sentences.
  Amendment 599 struck the first paragraph of the com-
mentary which generally had instructed sentencing courts
not to apply “specific offense characteristics for the pos-
session, use, or discharge of an explosive or firearm (e.g.,
§ 2B3.1(b)(2)(A)-(F) (Robbery))” to an “underlying offense”
when there was a separate § 924(c) conviction. Amendment
599 then added two new paragraphs that included the same
12                                       Nos. 02-1024 & 02-1285

general admonition against double counting but added
                                                            9
some clarifications to explain when double counting exists.


9
 Amendment 599 changed the first paragraphs of Application
Note 2 to read:
     If a sentence under this guideline is imposed in conjunction
     with a sentence for an underlying offense, do not apply any
     specific offense characteristic for possession, brandishing,
     use, or discharge of an explosive or firearm when deter-
     mining the sentence for the underlying offense. A sentence
     under this guideline accounts for any explosive or weapon
     enhancement for the underlying offense of conviction,
     including any such enhancement that would apply based
     on conduct for which the defendant is accountable under
     §1B1.3 (Relevant Conduct). Do not apply any weapon en-
     hancement in the guideline for the underlying offense, for
     example, if (A) a co-defendant, as part of the jointly under-
     taken criminal activity, possessed a firearm different from
     the one for which the defendant was convicted under 18
     U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense,
     the defendant possessed a firearm other than the one for
     which the defendant was convicted under 18 U.S.C. § 924(c).
     However, if a defendant is convicted of two armed bank
     robberies, but is convicted under 18 U.S.C. § 924(c) in con-
     nection with only one of the robberies, a weapon enhance-
     ment would apply to the bank robbery which was not the
     basis for the 18 U.S.C. § 924(c) conviction.
     If the explosive or weapon that was possessed, brandished,
     used, or discharged in the course of the underlying offense
     also results in a conviction that would subject the defendant
     to an enhancement under §2K1.3(b)(3) (pertaining to pos-
     session of explosive material in connection with another
     felony offense) or §2K2.1(b)(5) (pertaining to possession of
     any firearm or ammunition in connection with another fel-
                                                     (continued...)
Nos. 02-1024 & 02-1285                                              13
                                            10
See U.S.S.G. § 2K2.4, cmt. n.2 (2000); United States v. White,
305 F.3d 1264, 1267 (11th Cir. 2002); see also United States v.
Diaz, 248 F.3d 1065, 1106-07 (11th Cir. 2001) (“The first
sentence of the new application note reinforces what courts
have always known—when a defendant is convicted of a §
924(c) violation and an underlying offense, the defendant’s
possession of a weapon cannot be used to enhance the level
of the underlying offense.”).
  Amendment 599 did not purport to incorporate the
procedures of Amendment 489. Amendment 599 simply
clarifies when a defendant should receive weapon enhance-
ments for conduct other than the “underlying offense” when
also convicted under § 924(c). Amendment 599 explains
what conduct qualifies as the “underlying offense” and,
correlatively, when “other offenses” fall outside the § 2K2.4

9
     (...continued)
        ony offense), do not apply that enhancement. A sentence
        under this guideline accounts for the conduct covered by
        these enhancements because of the relatedness of that con-
        duct to the conduct that forms the basis for the conviction
        under 18 U.S.C. § 844(h), § 924(c) or § 929(a). For example, if
        in addition to a conviction for an underlying offense of
        armed bank robbery, the defendant was convicted of being
        a felon in possession under 18 U.S.C. § 922(g), the enhance-
        ment under §2K2.1(b)(5) would not apply.
U.S.S.G. § 2K2.4, cmt. n.2 (2000). The 2000 Guidelines retained
what Amendment 489 first provided as paragraph two; following
Amendment 599 the text was included in the commentary as
paragraph three.
10
  In 2002, Application Note 2 was moved to Application Note 4.
We will refer to this text as Application Note 2 so as to harmonize
our references with those of the parties, reflecting the 2000
Guidelines, in which Amendment 599 first appeared.
14                                       Nos. 02-1024 & 02-1285

prohibition. It clarifies the definition of “underlying of-
fense” to include relevant conduct. It also delineates “under
what circumstances defendants sentenced for violations of
18 U.S.C. § 924(c) in conjunction with convictions for other
offenses may receive weapon enhancements contained in
the guidelines for those other offenses.” U.S.S.G. app. C,
amend. 599, reasons for amendment. These “other offenses”
that do not qualify as “underlying offenses” may provide
                                     11
the basis of weapon enhancements.


E. Section 2K2.4 Today
  Section 2K2.4 continues to generally prohibit the appli-
cation of specific offense characteristics relating to pos-
session, brandishing, use, or discharge of a firearm to the
underlying offense. Amendment 489 addressed the excep-
tional procedure for applying enhancements in a limited
situation in which a total sentence for an underlying offense
and a § 924(c) offense is less than the defendant would have
received for the underlying offense with guideline enhance-
ments but without a § 924(c) conviction. Amendment 599
did not speak to this situation and its concomitant excep-


11
   See U.S.S.G. § 2K2.4, cmt. n.2 (2000) (explaining that if a
defendant was convicted of two armed bank robberies but
convicted under § 924(c) for only one of the armed robberies,
a weapon enhancement would be permissible for the “bank
robbery that was not the basis for the 924(c) conviction,” but
impermissible if the defendant committed an ongoing drug traf-
ficking offense and possessed a separate gun for which he was
not convicted for under § 924(c)); United States v. Mrazek, 998 F.2d
453, 455 (7th Cir. 1993) (applying guideline weapon enhance-
ments for two robberies and a statutory § 924(c) enhancement for
a third).
Nos. 02-1024 & 02-1285                                     15

tional procedures. Rather, it clarified generally the underly-
ing offenses to which a district court can apply weapon
enhancements when the defendant is convicted under §
924(c). We believe that the Eleventh Circuit was correct in
its estimation that Amendment 489’s substitution of an
upward departure for the previous subtraction procedure
was not made retroactive and that the subsequent promul-
gation of Amendment 599 does not now make the provision
retroactive. See United States v. White, 305 F.3d 1264, 1267
(11th Cir. 2002).
  The possibility of double counting was recognized and
effectively neutralized in the approach employed in the
defendants’ sentencing. See United States v. Johnson-Dix,
54 F.3d 1295, 1310-11 (7th Cir. 1995) (holding that the 60-
month subtraction method was not impermissible double
counting). The later-implemented Amendment 489 perhaps
would have given them an extra opportunity to avoid ad-
ditional punishment by making any further punishment the
subject of an upward departure rather than part of the
sentencing calculation. However, it was not required to
avoid double counting and was not made retroactive. As we
have noted earlier, Amendment 489 “simplifie[d] the
operation of §2K2.4 in order to reduce erroneous appli-
cation” of that provision. U.S.S.G. app. C, amend. 489 (1993)
(explaining the amendments to the commentary of § 2K2.4).
Any error in the application of that guideline was correct-
able on appeal regardless of Amendment 489. Furthermore,
the defendants do not allege that the district court errone-
ously applied the previous sentencing guidelines at the time
of their initial sentencing calculation.
16                                  Nos. 02-1024 & 02-1285

                      Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                                 AFFIRMED.

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                  USCA-02-C-0072—12-12-03
