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). Thе case is therefore ordered submitted without oral argument.
Appellant, Victor C. Wheeler, was originally charged in a three-count complaint with robbery in violation of 18 U.S.C. § 1951, brandishing a firеarm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and using a short-barreled shotgun during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(l)(B)(i). All three chargеs stemmed from the robbery of a Sonic Drive In restaurant located in Wichita, Kansas. Wheeler committed the robbery with two co-defendants. Pursuant to the terms of a written plea agreement, Wheeler waived indictment and pleaded guilty to a one-count information in which he was charged with brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Wheeler to 106 months’ imprisonment. In this appeal, Wheeler argues that the district court erred when it sentenced him to a term of imprisonment in excess of eighty-four months. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court remands to the district court for resen-tencing.
Pursuant to § 2K2.4(a) of the United States Sentencing Guidelines (“U.S.S.G.”), a defendant convicted of violating 18 U.S.C. § 924(c) must be sentenced to the term of imprisonment “required by statute.” In Wheeler’s case, the applicable statute is 18 U.S.C. § 924(c)(1)(A)(ii) which provides, in relevant part, as follows:
Except to the еxtent 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 thе 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 ...
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years ...
(emphasis added). The district court interpreted § 924(e)(l)(A)(ii) as authоrizing the imposition of a sentence greater than seven years. This court “reviewfs] for clear error the district court’s factual findings regarding sentencing and review[s] de novo its legal interpretation of the Guidelines.”
United States v. Maldonado-Acosta,
On appeal, Wheeler argues the district court erred when it concluded that it could sentence Wheeler to a term of incarceration in excess of the mandatory minimum sentence of eighty-four months provided in § 924(c)(1)(A)(ii). Wheeler’s argument fails in light of this court’s opinion in
United States v. Bazile,
By applying the reasoning in Bazile to the facts in this case, we conclude that § 924(c)(1)(A)(ii) does morе than fix a mandatory minimum sentence of seven years. Section 924(c)(l)(A)(ii) establishes a range of sentences within which Wheeler may be sentenced. In Wheeler’s case, the minimum mandatоry sentence required by § 924(c)(1)(A)(ii) is seven years. Wheeler’s sentencing range must be determined by calculating Wheeler’s criminal history category and total offense level and then aрplying the most analogous sentencing guideline to arrive at a guidelines sentencing range. If the upper limit of the guidelines range is less than seven years, Wheeler must be sentenced tо the mandatory minimum seven-year sentence. Id. 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 distriсt court’s discretion, to a term of incarceration no less than seven years but no greater than the upper limit of the guidelines sentence. If the lower limit of the guidelines sentencing range exceeds seven years, Wheeler must be sentenced within the guidelines range.
At the sentencing hearing, the district court employed the following method to determine Wheelеr’s sentence. The court first used U.S.S.G. § 2B3.1 1 to arrive at an informal calculation of Wheeler’s offense level. 2 Section 2B3.1 provides for a base offense level of twenty for the сrime of robbery. The district court awarded Wheeler three points for acceptance of responsibility and arrived at a total offense level of seventeen. Bаsed on Wheeler’s criminal history category of V, the court then calculated Wheeler’s sentence under the sentencing guidelines at forty-six to fifty-seven months. The court then added twenty-two months 3 to the seven-year minimum mandatory sentence to arrive at Wheeler’s 106-month sentence.
Although we agree with the district court’s conclusion that Wheeler could recеive a sentence in excess of seven years, the methodology used by the court to determine Wheeler’s sentence does not comport with the directive given by Bazile. Additionally, this court notes that the district court, when calculating Wheeler’s offense level, did not add five points to Wheeler’s base offense level pursuant to U.S.S.G. § 2B3.1(b)(2)(C). 4 The court expressed its beliеf that applying the five-level increase would constitute double counting. This court notes that, in this case, U.S.S.G. § 2B3.1 is not used to de *1197 termine Wheeler’s sentence for the underlying offense of robbery. As the most analogous sentencing guideline, § 2B3.1 is employed solely as a means to calculate the upper end of the sentencing range authorized by 18 U.S.C. § 924(c)(l)(A)(ii). Because Whеeler was convicted only of the firearms charge and not the underlying robbery, increasing Wheeler’s base offense level by five levels pursuant to U.S.S.G. § 2B3.1(b)(2)(C) for the sole purpose of calculating the guidelines sentencing range does not constitute double counting. Cf. U.S.S.G. § 2K2.4 cmt. n.2 (indicating that the five-level increase constitutes double counting only when the sentence imрosed under 18 U.S.C. § 924(c) is in conjunction with a sentence imposed for the underlying offense of robbery).
The government has confessed error in this case and expressed its opinion that the district court erred when it sentenced Wheeler to a term of incarceration in excess of eighty-four months. This court, however, is not bound by the government’s confession of error. The government reads Bazile as requiring the district court to calculate a defendant’s guidelines sentencing range only if the defendant is actually charged with the underlying offense that gives rise to the § 924(c) conviction. Wheeler was charged with the § 924(c) violation in a one-count information; he was not charged with the underlying offense of robbery. Thus, the government asserts that the district court was nоt required to calculate Wheeler’s guidelines sentencing range but was only required to sentence him to the seven-year mandatory minimum. It is evident from our disposition of Wheeler’s aрpeal that the government misreads Bazile.
Although we conclude that the methodology used by the district court to determine Wheeler’s sentence was erroneous, the government’s cоntention that Wheeler may not be sentenced to a term in excess of eighty-four months is also erroneous.
See Bazile,
Notes
. On appeal, neither party contests the use of U.S.S.G. § 2B3.1 as the most analogous sentencing guideline.
. The Presentence Investigation Report does not contain a calculation of Wheeler's offense level although it does calculate Wheeler’s criminal history category at V. At sentеncing, the district court indicated that it had requested the probation officer to calculate Wheeler's offense level and guidelines sentence using U.S.S.G. § 2B3.1. The record on aрpeal does not indicate whether the parties were provided with a written copy of the offense-level calculation prior to Wheeler's sentencing.
. The 22 months rеpresents the difference between the low end of Wheeler's guidelines sentencing range and the low end of the range calculated for one of his co-defendants. The district court employed this method to ensure that Wheeler, who had a criminal history category of V, received a greater sentence than his co-defendant who had a criminal history category of I.
. U.S.S.G. § 2B3.1(b)(2)(C) provides that a defendant’s base offense level shall be increased by five levels if, during the commission of the robbery, "a firearm was brandished, displayed, or possessed.”