United States v. Kenneth Wimbush, 103 F.3d 968 (11th Cir. 1997). · Go Syfert
United States v. Kenneth Wimbush, 103 F.3d 968 (11th Cir. 1997). Cases Citing This Book View Copy Cite
32 citation events (24 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Jeremy Powell (ca11, 2025-02-26)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Jeremy Powell
11th Cir. · 2025 · confidence medium
USCA11 Case: 23-12565 Document: 47-1 Date Filed: 02/26/2025 Page: 7 of 7 23-12565 Opinion of the Court 7 States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997); United States v. Carrasquillo, 4 F.4th 1265, 1274 (11th Cir. 2021).
discussed Cited as authority (rule) United States v. Brandon Miguel Lewis
11th Cir. · 2023 · confidence medium
See United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006) (“We may sua sponte raise the issue of clerical errors in the judgment and remand with instructions that the dis- trict court correct the errors.”); United States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997) (remanding for the limited purpose of cor- recting a typographical error in the judgment).
discussed Cited as authority (rule) Com. v. Allen, D.
Pa. Super. Ct. · 2015 · confidence medium
In such a scenario, courts around the nation have held that the error constitutes a patent and obvious clerical error that is subject to correction, even after the trial court loses traditional jurisdiction over the case.8 In fact, in Commonwealth v. Young, 695 A.2d 414 (Pa. Super. ____________________________________________ 8 See, e.g., United States v. James, 642 F.3d 1333, 1343 (11th Cir. 2011) (“[b]ecause the written judgment incorrectly states that James was convicted under [21 U.S.C.] § 841(b)(1)(B)(iii), rather than § 841(b)(1)(C), we remand for the limited purpose of correcting th…
cited Cited as authority (rule) United States v. Ronald William Brown
11th Cir. · 2014 · confidence medium
United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (per curiam).
discussed Cited as authority (rule) United States v. Frank Martines
3rd Cir. · 2013 · confidence medium
Cf. United States v. Hanna, 639 F.2d 192, 194 (5th Cir.1980) (holding that it was a “clerical error readily correctable” under Rule 36 where the judgment cited a different subsection than that for which the defendant was charged and tried, but where the penalties were the same); United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (finding that a judgment that incorrectly cited a non-existent statutory subsection was merely a clerical error).
discussed Cited as authority (rule) United States v. Handy
E.D.N.Y · 2008 · confidence medium
See, e.g., United States v. Lopez, 938 F.2d 1293, 1297 (D.C.Cir.1991) (“Applying the principle of inclusio unius est exclusio alterius, we conclude that by subjecting the promulgation of the Guidelines to this one section of the APA, Congress affirmed that the [Sentencing] Commission’s rule-making was not subject to any other provision of the APA, including those for judicial review.”); Wash. Legal Found, v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C.Cir.1994) (holding that, unless specified by statute, the APA does “not apply to the [Sentencing] Commission because it is a part …
discussed Cited as authority (rule) United States v. Kevin Martin (2×)
6th Cir. · 2006 · confidence medium
The Eleventh Circuit reached the same conclusion a few years later in United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (per cu-riam) (“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.”).
discussed Cited as authority (rule) United States v. Martin
6th Cir. · 2006 · confidence medium
The Eleventh Circuit reached the same conclusion a few years later in United States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997) (per curiam) (“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.”).
cited Cited as authority (rule) United States v. Isidoro Martinez
11th Cir. · 2006 · confidence medium
This argument has already been rejected by this Court in United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997), and thus has no merit.
discussed Cited as authority (rule) United States v. Jackson
10th Cir. · 1998 · confidence medium
Application note 15 of U.S.S.G. § 2K2.1 expressly provides that “[p]rior felony conviction(s) resulting in an increased base offense level under subsection . . . (a)(3) . . . are also counted for purposes of determining criminal history points.” See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.) (per curiam) (holding use of defendant’s prior felony convictions to increase base offense level and to determine criminal history did not constitute impermissible double counting), cert. denied, 117 S. Ct. 1859 (1997); United States v. Hawkins, 69 F.3d 11, 13-15 (5th Cir. 1995).
discussed Cited as authority (rule) United States v. Jay Van Jackson, Iii, AKA Little Jay, United States of America v. Paul Sheldon Cromartie, AKA Shy-Lo AKA Paul Miller
10th Cir. · 1998 · confidence medium
Application note 15 of U.S.S.G. § 2K2.1 expressly provides that "[p]rior felony conviction(s) resulting in an increased base offense level under subsection ... (a)(3) ... are also counted for purposes of determining criminal history points." See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.) (per curiam) (holding use of defendant's prior felony convictions to increase base offense level and to determine criminal history did not constitute impermissible double counting), cert. denied, --- U.S. ----, 117 S.Ct. 1859 , 137 L.Ed.2d 1060 (1997); United States v. Hawkins, 69 F.3d 11, 13-15 …
discussed Cited as authority (rule) United States v. Askew (2×)
M.D. Ala. · 1997 · confidence medium
In any event, “Congress did not intend to subject the actions of the Commission to judicial review.” United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (per curiam).
cited Cited "see" United States v. Jose Daniel Deras Lopez
11th Cir. · 2018 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997).
cited Cited "see" United States v. Jophaney Hyppolite
11th Cir. · 2015 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997). 16 *615 AFFIRMED IN PART; VACATED AND REMANDED IN PART. 1 .
discussed Cited "see" United States v. Douglas Ray Castleberry
11th Cir. · 2015 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 969-70 (11th Cir.1997) (per curiam) (“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.”); United States v. Handy, 570 F.Supp.2d 437, 465-66 (E.D.N.Y.2008) (Weinstein, J.) (“Challenges to a particular Guideline as ‘arbitrary and capricious’ and defendants’ attempts to enforce the procedures that bind the Sentencing Commission under the familiar administrative law framework are…
cited Cited "see" United States v. Eddie Pressley
11th Cir. · 2013 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (affirming a defendant’s sentence while remanding for the limited purpose of correcting a scrivener’s error).
discussed Cited "see" United States v. Tiekeron Martin
11th Cir. · 2013 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997) (affirming a defendant’s sentence while remanding for the sole purpose of correcting a typographical error in the judgment). 2
cited Cited "see" United States v. Martin
11th Cir. · 2013 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (affirming a defendant’s sentence while remanding for the sole purpose of correcting a typographical error in the judgment).
cited Cited "see" United States v. Michael Turner
11th Cir. · 2013 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (per curiam) (remanding a case for the sole purpose of correcting a scrivener’s error in the judgment). 2 .
cited Cited "see" United States v. Fogle
E.D. Wis. · 2010 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 969 (11th Cir.1997).
discussed Cited "see" United States v. Lewis Jesse Lee
11th Cir. · 2008 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (per curiam) (holding *749 that federal courts lack the authority to review the Sentencing Commission’s actions for compliance with the Administrative Procedures Act insofar as the adequacy of the statement of the basis and purpose of a guideline amendment is concerned).
discussed Cited "see" United States v. Jamie Renardo Glover
11th Cir. · 2007 · signal: see · confidence high
See United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (“[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.”).
cited Cited "see, e.g." United States v. Eric Lamar Menter
11th Cir. · 2014 · signal: see, e.g. · confidence medium
See, e.g., United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997).
discussed Cited "see, e.g." United States v. Ryan Washington
3rd Cir. · 2012 · signal: see also · confidence medium
See United States v. Hanna, 639 F.2d 192, 194 (5th Cir. Unit B 1980) (holding that it was a “clerical error readily correctable” under Rule 36 where the judgment of conviction named a different subsection than that for which the defendant was charged and tried, but where the penalties were the same); see also United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.1997) (finding that a judgment that incorrectly cited a statutory subsection that did not exist was merely a clerical error).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth WIMBUSH, Defendant-Appellant
96-8217.
Court of Appeals for the Eleventh Circuit.
Jan 22, 1997.
103 F.3d 968
Kevin Brehm, Asst. Federal Public Defender, Atlanta, GA, for defendant-appellant., Kent Alexander, U.S. Atty., Catherine O’Neil, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee.
Edmondson, Carnes, Kravitch.
Cited by 28 opinions  |  Published
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 § 3El.l(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 desir[*970] able.”). Thus, Congress did not intend to subject the actions of the Commission to judicial review. In United States v. Lopez, 938 F.2d 1293 (D.C.Cir.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 (8th Cir.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. § 4Al.l(a). Thus, a prior violent crime conviction is counted once under § 2K2.1(a)(2) and again under § 4Al.l(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.