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.
