                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         NOV 28 2000
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 00-3059
v.                                                  (District of Kansas)
                                             (D.C. No. 99-CR-10129-01-MLB)
CARLOS LAVAR CROSBY,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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.




      *
       This order and judgment is not binding precedent, except under the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.
      Appellant, Carlos Lavar Crosby, and two co-defendants, Victor C. Wheeler

and Robert Hong, were charged in a three-count complaint filed in the United

States District Court for the District of Kansas. The charges stemmed from the

robbery of a restaurant located in Wichita, Kansas. Crosby was subsequently

charged in a one-count information with brandishing a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In exchange for his plea of

guilty to the firearms charge, the government agreed to dismiss the three-count

complaint and to not indict Crosby on any other charges stemming from the

robbery. Crosby was sentenced to a term of ninety months’ imprisonment. In

this appeal, Crosby argues that the district court erred when it sentenced him to a

term of imprisonment in excess of eighty-four months. The government

confesses error and concedes that, under the facts of this case, the district court

erred. 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(a) of the United States Sentencing Guidelines (“U.S.S.G.”)

provides that a defendant convicted of violating 18 U.S.C. § 924(c) must be

sentenced to the term of imprisonment “required by statute.” The applicable

statute, 18 U.S.C. § 924(c)(1)(A)(ii) provides, in relevant part, as follows:

      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,

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

(emphasis added). In arriving at its sentencing decision, the district court

interpreted 18 U.S.C. § 924(c)(1)(A)(ii) as authorizing a sentence greater than

seven years. The district court then added six months to the minimum seven-year

sentence and sentenced Crosby to ninety months’ incarceration. This court

conducts a de novo review of the district court’s interpretation of 18 U.S.C. §

924(c)(1)(A)(ii).    See United States v. Maines , 920 F.2d 1525, 1528 n.4 (10th

Cir. 1990). Additionally, “[w]e review for clear error the district court’s factual

findings regarding sentencing and review       de novo its legal interpretation of the

Guidelines.” United States v. Maldonado-Acosta         , 210 F.3d 1182, 1183 (10th Cir.

2000).

         After Crosby was sentenced, this court issued its opinion in    United States

v. Bazile , 209 F.3d 1205 (10th Cir. 2000). In     Bazile , we concluded that the

sentencing court was authorized to impose a sentence greater than the statutory

mandatory minimum of twenty-five years required by § 924(c)(1)(C)(I) if the

“defendant’s criminal history category and offense level indicates a term higher

than the minimum under the statute.”       Id. at 1207. Thus, this court has

interpreted § 924(c) as establishing a range within which courts can sentence

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defendants; the low end of that range is the minimum mandatory sentence

required by the statute.   See id. In this case, the low end of the range is the

minimum mandatory sentence of seven years imposed by § 924(c)(1)(A)(ii).           1



The sentencing court must also examine the most analogous sentencing guideline

to determine whether the high end of the sentencing range under the guidelines

exceeds the statutory minimum mandatory.         See United States v. Wheeler   , No. 00-

3069, 2000 WL 1576135, at *2 (10th Cir. 2000).

       At the sentencing hearing in the instant case, the district court applied

U.S.S.G. § 2B3.l to the facts in this case, 2 and calculated Crosby’s offense level

at seventeen. 3 Based on Crosby’s criminal history category of III, the resulting

guidelines range of imprisonment fell between thirty and thirty-seven months.



       1
         The district court concluded that the high end of the range is ten years. On
appeal, the government argues that the district court’s conclusion is erroneous and
that the high end of the range is life imprisonment. In light of the conclusion,
infra , that Crosby cannot be sentenced to a term of incarceration greater than 84
months, it is unnecessary for this court to address this issue. We acknowledge,
however, that the government’s position is more consistent with this court’s
holding in United States v. Bazile , 209 F.3d 1205, 1207 (10th Cir. 2000).

       On appeal, the government does not contest the district court’s use of
       2

U.S.S.G. § 2B3.1 as the most analogous sentencing guideline. This court
expresses no opinion on the question.

       U.S.S.G. § 2B3.1 provides for a base offense level of 20 for the crime of
       3

robbery. The district court awarded Crosby three points for acceptance of
responsibility, arriving at total offense level of 17. In this appeal, the government
does not contest the district court's calculation and this court does not address the
issue.

                                           -4-
This court has reviewed U.S.S.G. § 2B3.1, the Presentence Investigation Report,

and the transcript of Crosby’s sentencing hearing and concludes that Crosby’s

offense level cannot exceed twenty-four. Consequently, the maximum sentence

Crosby could receive under the sentencing guidelines is seventy-eight months.

Because the maximum sentence Crosby could receive by applying the most

analogous sentencing guideline is less than the statutory minimum mandatory

sentence required by 18 U.S.C. § 924(c)(1)(A)(ii), the district court erred when it

sentenced Crosby to a term of incarceration in excess of the eighty-four month

minimum required by the statute. See id.

      Although this court is not bound by the government’s confession of error,

we conclude that the district court erred when it sentenced Crosby to a term of

incarceration greater than seven years. Consequently, this court remands to the




                                           -5-
district court to vacate Crosby’s sentence and resentence him consistent with this

opinion.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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