United States v. James Wymes, 558 F. App'x 718

On Dec. 20, 2010, Wymes traveled to purchase ~1 lb of marijuana, carried a .38 revolver, shot the seller during a price dispute, fled with the drugs, and was soon apprehended with the firearm and the marijuana.
Indicted on three counts: possession with intent to distribute (later dismissed), felon in possession of a firearm (18 U.S.C. § 922(g)), and discharging a firearm during a drug trafficking crime (18 U.S.C. § 924(c)).
Wymes pled guilty to counts 2 (§ 922(g)) and 3 (§ 924(c)). The PSR set a base offense level 20 under U.S.S.G. § 2K2.1(a)(4), added +4 under § 2K2.1(b)(6)(B) (firearm in connection with another felony), +2 for stolen firearm, and -3 for acceptance of responsibility, yielding total offense level 23; later reduced by 2 levels for substantial assistance to level 21.
The district court sentenced Wymes to 70 months on the § 922(g) count and the mandatory consecutive 10-year term for the § 924(c) conviction, and imposed a $10,000 fine.
Wymes appealed the § 2K2.1(b)(6)(B) enhancement and the fine. The government conceded the sentencing error but urged the fine be upheld.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the § 2K2.1(b)(6)(B) +4 enhancement may be applied where the same firearm conduct formed the basis for a § 924(c) conviction	The § 2K2.1(b)(6)(B) enhancement should not apply because Wymes’s discharge of the firearm also underlies the § 924(c) conviction and would double-count the conduct	The government conceded the sentencing error (i.e., enhancement inapplicable) but sought to preserve the fine	Court held the enhancement was precluded by U.S.S.G. § 2K2.4 cmt. n.4 (double-counting barred), plain error, vacated and remanded for resentencing
Whether the $10,000 fine should be upheld given the sentencing error	Wymes argued the fine was based on an incorrectly calculated offense level and should be vacated	Government argued the fine should be affirmed despite the conceded enhancement error	Court held the fine must be vacated and remanded because the advisory fine range depends on the corrected offense level

Gall v. United States, 552 U.S. 38 (procedural-review standard; ensure correct Guidelines calculation)
United States v. Pirani, 406 F.3d 543 (8th Cir. en banc) (plain error review for unobjected-to Guidelines errors)
Johnson v. United States, 520 U.S. 461 (standard for plain-error review)
United States v. Brown, 332 F.3d 1341 (11th Cir.) (guidance on applying § 2K2.1 and § 2K2.4)
United States v. Friend, 303 F.3d 921 (8th Cir.) (explaining rationale for not double-counting firearm conduct under § 2K2.4)
United States v. Fortier, 180 F.3d 1217 (10th Cir.) (vacating fine when offense-level calculation error required resentencing)