United States v. Albert Legette, III ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13930 ELEVENTH CIRCUIT
MARCH 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00027-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT LEGETTE, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 26, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Albert Legette, III, appeals the sentence imposed after his convictions for
possession with intent to distribute cocaine, possession of a firearm in furtherance
of a drug-trafficking offense, and possession of a firearm by a convicted felon.
Because Legette cannot show plain error in the imposition of his sentences, we
affirm.
Legette pleaded guilty to possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841 (Count 1); possession of a firearm in furtherance of a
drug-trafficking offense, in violation of 18 U.S.C. § 924(c) (Count 2); and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(Count 3). The two firearm charges involved the same firearm, and the indictment
listed eight of Legette’s prior convictions. He faced enhanced penalties under 21
U.S.C. §§ 841 and 851 based on the prior convictions. The plea agreement advised
Legette that he faced a five-year mandatory minimum on Count 2 that would run
consecutively to the other sentences, and a fifteen-year mandatory minimum on
Count 3.
The probation officer prepared a presentence investigation report (“PSI”),
grouping Counts 1 and 3 together under U.S.S.G. § 3D1.2. The base offense level
was determined by the most serious of the group, the § 922(g) offense, and because
Legette had prior convictions, his base offense level was 24 under § 2K2.1(a)(2).
Legette’s criminal history qualified him as an armed career criminal, which raised
his offense level to 34 and set his criminal history category at VI. With a 3-level
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reduction for acceptance of responsibility, the total adjusted offense level was 31.
The resulting guidelines range for Counts 1 and 3 was 188 to 235 months’
imprisonment. Count 3 carried a mandatory minimum of 180 months’
imprisonment under 18 U.S.C. § 924(e).
Count 2, which was not part of the guidelines calculations, carried a
mandatory consecutive 60-month sentence under 18 U.S.C. § 924(c). When the
mandatory 60-month sentence was added to the guidelines range, the total range
became 248 to 295 months’ imprisonment. Under § 4B1.1(c)(2), (3), the
guidelines range became 262 to 327 months’ imprisonment.1 Legette filed factual
objections not relevant to the instant appeal, but he did not object to the sentencing
guidelines calculations.
Prior to sentencing, the government filed a motion for a reduction based on
Legette’s substantial assistance, which would permit the court to sentence Legette
below the mandatory minimum sentences. See U.S.S.G. § 5K1.1, comment. (n.1).
At sentencing, Legette conceded that the appropriate guidelines range was 262 to
327 months’ imprisonment. After considering the sentencing factors in 18 U.S.C.
§ 3553(a) and listening to the arguments, the court adopted the guidelines
1
Under § 4B1.1(c), a defendant who was convicted of a § 924(c) offense and who is a career
offender faces an increased guideline range. Because Legette fell into these categories, his guideline
range became 262 to 327 months’ imprisonment. See U.S.S.G. § 4B1.1(c)(3). Legette does not
dispute this calculation.
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calculations and sentenced Legette to two concurrent 176-month sentences for
Counts 1 and 3, and a 60-month consecutive sentence for Count 2. The court noted
that it had departed from the sentencing range based on the government’s motion
for a reduction based on substantial assistance, § 5K1.1. Legette raised no
objections to the sentence imposed.
Legette now appeals, arguing that the court plainly erred by imposed the 60-
month consecutive sentence on Count 2 because he faced a mandatory 180-month
sentence on Count 3, and the court was not permitted to apply both mandatory
minimums under the plain language of 18 U.S.C. § 924(c).2
Generally, we review pure questions of law de novo. See United States v.
McDaniel, 338 F.3d 1287, 1288 (11th Cir. 2003). But where a defendant fails to
raise a sentencing issue before the district court, we review for plain error. United
States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005). We will
2
This statute provides:
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 . . . 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. . . . (D) Notwithstanding any other provision
of law . . . (ii) no term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the crime of violence or drug
trafficking crime during which the firearm was used, carried, or possessed.
18 U.S.C. § 924(c)(1)(A), (D) (emphasis added).
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correct a plain error only if (1) an error occurred, (2) the error was plain, and
(3) the error affected substantial rights. United States v. Zinn, 321 F.3d 1084, 1087
(11th Cir. 2003). “If all three conditions are met, we may then exercise our
discretion to notice a forfeited error, but only if . . . the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
At issue in this case is whether § 924(c)’s prefatory “except” clause
prohibits the court from imposing the mandatory sentences on both the § 924(c)
count and the § 922(g) count.
This court has held that “[t]he plain language of the statute expressly states
that a term of imprisonment imposed under section 924(c) cannot run concurrently
with any other term of imprisonment, period.” United States v. Wright, 33 F.3d
1349, 1350 (11th Cir. 1994). “No exceptions are provided.” Id. Importantly, this
holding predates the statute’s “except” language.3
Even if the addition of the “except” clause called this court’s precedent into
question, Legette cannot show plain error. Legette contends that there is plain
error because, although this court had not addressed § 924(c)’s “except” clause at
the time he was sentenced, the other circuits to address it had consistently held that
3
Apparently, the “except” clause was added to the statute in 1998. See United States v.
Easter, 553 F.3d 519, 527 (7th Cir. 2009), cert. denied, 2010 WL 250549 (2010).
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the two mandatory minimums were impermissible.4 Contrary to Legette’s
understanding, however, the fact that other circuits were consistent at the time does
not establish plain error. “It is the law of this circuit that, at least where the explicit
language of a statute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court or this Court
directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
Cir. 2003). Thus, at the time of Legette’s sentencing, neither this court nor the
Supreme Court had addressed the “except” clause, and there was no plain error in
the court’s interpretation. Legette’s sentences are
AFFIRMED.
4
Since Legette’s sentencing, there has been a circuit split on the interpretation of § 924(c)’s
except clause. The Supreme Court has now granted cert. in two cases to address § 924(c)’s
mandatory consecutive sentence in conjunction with mandatory minimum sentences for other
offenses. See United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, 2010 WL 250514(Jan. 25, 2010) (No. 09-479), and United States v. Gould, 329 Fed. Appx. 569 (5th Cir. 2009)
(unpublished), cert. granted, 2010 WL 250523 (Jan. 25, 2010) (No. 09-7073).
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