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, 209 F.3d 1205 (10th Cir. 2000), which was decided after Wheeler was sentenced. In Bazile, this court concluded that a sentencing court has the power to impose a sentence greater than the statutory mandatory minimum required by § 924(c) if the "defendant's criminal history category and offense level indicates a term higher than the minimum under the statute."

Seventh, though we see no ambiguity in the term “intended loss,” if there were any that would only provide another reason for the same result. After all, the rule of lenity teaches that if, after “seizing every thing from which aid can be derived” an ambiguity still persists, Smith v. United States, 508 U.S. 223, 240, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (internal alteration and quotation omitted), courts should interpret federal criminal statutes—including, we have said, the sentencing guidelines—“to avoid an increase in the penalty prescribed for the offense,” United States v. Hinckley, 550 F.3d 926, 932 n. 4 (10th Cir.2008); United States v. Weidner, 437 F.3d 1023, 1046–47 (10th Cir.2006); United States v. Bazile, 209 F.3d 1205, 1207 (10th Cir.2000); see also United States v. R.L.C., 503 U.S. 291, 305–06, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992). And that principle plainly would support treating intent to mean purpose rather than some lower standard likely to increase the defendant's sentence.

They concluded that we have determined that § 924(c) requires a consecutive mandatory minimum sentence regardless of whether the other crimes of conviction (other than the § 924(c) charge) carry a mandatory minimum.See United States v. Wheeler, 230 F.3d 1194 (10th Cir. 2000); United States v. Bazile, 209 F.3d 1205 (10th Cir. 2000). The court accordingly sentenced Mr. Rayford to 144 months' imprisonment.

It is true, when there are two rational readings of the law, one harsher than the other, the courts are to choose the harsher only when Congress has made its intentions clear. Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409 (2003); see United States v. Bazile, 209 F.3d 1205, 1207 (10th Cir. 2000) ("Under the rule of lenity, we interpret ambiguous statutes, as well as Sentencing Guidelines, in favor of the defendant and impose the shorter sentence."). Yet, the doctrine of lenity does not apply where the guidelines are clear.

United States v. Diaz, 989 F.2d 391, 393 (10th Cir.1993) (internal citations omitted). See, e.g., United States v. Giles, 213 F.3d 1247 (10th Cir.2000) (using lenity to hold that "patches" are not "goods" under the law governing trafficking in counterfeit labels); United States v. Bazile, 209 F.3d 1205 (10th Cir.2000) (using lenity to over-turn a mandatory life sentence under U.S.S.G. § 2K2.4(a)); United States v. Wicklund, 114 F.3d 151 (10th Cir.1997) (invoking lenity to overturn the district court's contrary interpretation of a murder-for-hire statute). To be sure, "a court must first consult `all available relevant materials,' and invoke the rule of lenity only as a tie-breaker when ordinary means of discerning statutory meaning leave the issue in `equipoise.'"

Prior to the Supreme Court's decision in Booker, our conclusion that a Guideline provision was ambiguous required us to remand with instructions to follow the interpretation of the Guidelines that would produce the lesser sentence. See United States v. Bazile, 209 F.3d 1205, 1207 (10th Cir. 2000). Post- Booker, however, our approach is somewhat different.

On appeal, the Tenth Circuit remanded the case for resentencing on Count Four. Doc. 48. United States v. Bazile, 209 F.3d 1205 (10th Cir. 2000) (Bazile I). On January 11, 2001, the Court re-sentenced Defendant to concurrent 235-month terms as to Counts Three and Five; a consecutive 60-month term as to the §924(c) conviction on Count Two and two consecutive 300-month terms as to the §924(c) convictions on Counts Four and Six. Doc. 67, 91.

Although his conviction was affirmed, his case was remanded for resentencing. See United States v. Bazile, 209 F.3d 1205 (10th Cir. 2000). On remand, the Court granted the government's motion for upward departure, and sentenced Bazile to 895 months in prison, followed by five years of supervised release.