United States v. Kevaris Cornelius Edgecomb ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 21, 2009
No. 09-11169 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-60293-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVARIS CORNELIUS EDGECOMB,
a.k.a. Fle,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 21, 2009)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Kevaris Cornelius Edgecomb, through counsel, appeals his 181-month
sentence imposed for possession with intent to distribute 50 grams or more of
crack cocaine, possession of a firearm in furtherance of a drug-trafficking crime,
and possession of a firearm by a convicted felon. On appeal, he argues that the
district court erred in imposing a consecutive five-year mandatory minimum
sentence under 18 U.S.C. § 924(c)(1)(A) because he was otherwise subject to 21
U.S.C. § 841(b)(1)(A)’s ten-year mandatory minimum. For the reasons set forth
below, we affirm.
I.
Edgecomb was charged with possession with intent to distribute 50 grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii)
(“Count 1”); possession of a firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A) (“Count 2”); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count 3”). Edgecomb pled
guilty to all three counts without the benefit of a plea agreement.
According to the presentence investigation report (“PSI”), on September 19,
2008, a confidential informant (“CI”), called Edgecomb and told Edgecomb that he
wished to purchase four ounces of crack cocaine. Edgecomb agreed to meet the CI
at an apartment complex to sell him the crack cocaine. Law enforcement officers
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accompanied the CI to the apartment complex and observed Edgecomb standing at
the entrance of the apartment complex. As Edgecomb approached a vehicle,
officers confronted him, and he attempted to flee. While attempting to handcuff
Edgecomb, officers noticed that a handgun had fallen from Edgecomb’s waist area.
Officers searched the car and found approximately 206 grams of crack cocaine,
which Edgecomb later admitted belonged to him. Laboratory analysis revealed
that the net weight of the crack cocaine was 179.8 grams.
The PSI grouped Counts 1 and 3 together, pursuant to U.S.S.G. § 3D1.2(c),
and set Edgecomb’s base offense level at 32, pursuant to U.S.S.G. § 2D1.1(a)(3),
because his offense involved at least 150, but less than 500, grams of crack
cocaine. Edgecomb received a 3-level reduction under § 3E1.1(a) and (b) for
acceptance of responsibility, resulting in a total offense level of 29. Based on his
prior offenses, Edgecomb had a total of ten criminal-history points, which placed
him in criminal history category V. Edgecomb’s total offense level of 29, when
combined with criminal history category V, yielded a guideline imprisonment
range of 140 to 175 months. However, the PSI noted that Edgecomb was subject
to a statutory minimum of ten years’ imprisonment for the 21 U.S.C.
§ 841(b)(1)(A)(iii) offense (Count 1), and a statutory minimum of five years’
imprisonment on the 18 U.S.C. § 924(c)(1)(A)(i) offense (Count 2). It also noted
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that § 924(c)(1)(A)(i) required the five-year minimum to run consecutive to any
other term of imprisonment. Edgecomb objected to the PSI’s statement that the
five-year statutory minimum sentence was required to run consecutive to any other
sentence.
At the sentencing hearing, Edgecomb stated his objection to the probation
officer’s conclusion that the five-year mandatory minimum under § 924(c)(1)(A)(i)
was required to run consecutive to any other sentence. He asserted that, under the
plain language of § 924(c), if a defendant was otherwise subject to a greater
statutory minimum, the five-year consecutive sentence did not apply. Edgecomb
argued that he qualified for the exception, because he was subject to a ten-year
mandatory minimum for the § 841(a)(1) offense.
The district court overruled Edgecomb’s objection to the imposition of
consecutive sentences. However, it determined that criminal history category V
overrepresented Edgecomb’s prior criminal history because he had only two prior
felony convictions. The court reduced Edgecomb’s criminal history category to
IV, resulting in a guideline range of 121 to 151 months’ imprisonment. The court
then sentenced Edgecomb to 121 months’ imprisonment on Count 1, 120 months’
imprisonment on Count 3, to run concurrently with the sentence for Count 1, and
60 months’ imprisonment on Count 2, to run consecutively with the sentences for
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Counts 1 and 3, for a total of 181 months’ imprisonment.
II.
We review questions of statutory interpretation de novo. United States v.
Krawczak, 331 F.3d 1302, 1305 (11th Cir. 2003). Section 924(c)(1)(A) of Title 18
of the United States Code states:
Except to the extent 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 or drug trafficking
crime . . . 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 or
drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less
than 5 years . . . .
18 U.S.C. § 924(c)(1)(A) (emphasis added). We recently held that the plain
language of § 924(c)(1)(A) requires courts to impose consecutive sentences for
§ 924(c) offenses and underlying drug offenses. United States v. Segarra, 582
F.3d 1269, 1271-73 (11th Cir. 2009). Segarra, like Edgecomb, was sentenced for
possession with intent to distribute 50 grams or more of crack cocaine, in violation
of § 841, as well as for a violation of § 924(c). Id. at 1271. We noted that circuits
had split on the issue, but held that the district court properly imposed both the
§ 841 mandatory minimum and the consecutive § 924(c) mandatory minimum. Id.
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at 1272-73.
III.
Based on our decision in Segarra, we hold that the district court committed
no error in imposing the consecutive five-year mandatory minimum under
§ 924(c)(1)(A)(i), as well as the ten-year mandatory minimum under
§ 841(b)(1)(A)(iii). See id. Accordingly, based on our review of the record and
consideration of the parties’ briefs, we affirm Edgecomb’s 181-month sentence.
AFFIRMED.
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