United States v. Nelson

MEMORANDUM ***

Defendant Antoinne Nelson pled guilty to conspiracy to commit armed bank robbery on April 27, 1999 in violation of 18 U.S.C. § 371 , the armed bank robbery in violation of 18 U.S.C. § 2113 (a)(d), and brandishing a firearm during that robbery in violation of 18 U.S.C. § 924 (c). Defendant also pled guilty to three other counts of armed robbery.

We denied defense counsel’s motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), and ordered the parties to submit letter briefs addressing whether the district court impermissibly double counted the brandishing of a firearm during the April 27 robbery. In addition to being sentenced for brandishing a firearm during that robbery, see 18 U.S.C. § 924 (c), Defendant also received a 5-level enhancement to the robbery base offense level for brandishing a firearm during that robbery, see U.S.S.G. § 2B3.1(b)(2)(C).

Both parties agree that, although there was impermissible double counting under the explicitly retroactive change to the Sentencing Guidelines, see U.S.S.G. §§ lB1.10(a), (c), 2K2.4 app. n. 2; 65 Fed. Reg. 50034 ; H b; United States v. Aquino, 242 F.3d…