United States v. Robles , 709 F.3d 98 ( 2013 )

12-631-cr
United States v. Robles
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
(Submitted: February 20, 2013 Decided: March 1, 2013)
Docket No. 12-631-cr
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE ROBLES,
Defendant-Appellant.
Before:
WINTER, CHIN, and DRONEY, Circuit Judges.
Appeal from a judgment of conviction of the United
States District Court for the Southern District of New York
(Sweet, J.), imposing a sentence principally of thirty-five
years' imprisonment, which included consecutive mandatory
minimum terms of imprisonment of seven and twenty-five years
for brandishing a firearm during two robberies.
AFFIRMED.
Katherine Polk Failla, Michael D. Maimin,
Assistant United States Attorneys,
for Preet Bharara, United States
Attorney for the Southern District of
New York, New York, New York, for
Appellee.
Scott B. Tulman, Law Offices of Scott B.
Tulman, New York, New York, for
Defendant-Appellant.
PER CURIAM:
Defendant-appellant Jose Robles appeals from a
judgment of the United States District Court for the Southern
District of New York (Sweet, J.) entered March 29, 2012,
convicting him of conspiring to commit and committing three
Hobbs Act robberies and of brandishing a firearm during two
of the robberies. The district court sentenced Robles
principally to thirty-five years' imprisonment. On appeal,
Robles challenges the district court's determination that it
was required to impose consecutive mandatory minimum terms of
imprisonment of seven and twenty-five years on the gun
counts. We affirm.
BACKGROUND
Robles was convicted of conspiring to commit and
committing three armed robberies in 2005 and 2006 at two
Radio Shack stores in the Bronx, New York, and a gasoline
station in Yonkers, New York. Robles was indicted on six
counts: one count of conspiring to commit a Hobbs Act
robbery in violation of 18 U.S.C. § 1951 (Count One), three
substantive counts of Hobbs Act robbery in violation of 18
U.S.C. §§ 1951-52 (Counts Two to Four), and two counts of
brandishing a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c) (Counts Five and Six). A jury found
him guilty on all counts.
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On February 3, 2012, the district court issued a
sentencing opinion in which it held, inter alia, that it was
required to impose mandatory consecutive minimum sentences of
seven and twenty-five years' imprisonment on Counts Five and
Six, respectively. Opinion at 16, United States v. Robles,
No. 08 Cr. 1114 (S.D.N.Y. Feb. 3, 2012), ECF No. 61.
Accordingly, the district court sentenced Robles on February
7, 2012 to thirty-five years' imprisonment: three years for
each of the conspiratorial and substantive Hobbs Act robbery
counts, to run concurrently; a mandatory minimum seven-year
term for his first conviction under § 924(c); and a mandatory
minimum twenty-five-year term for his second conviction under
§ 924(c)(1)(C)(i). Pursuant to § 924(c)(1)(D)(ii) -- which
provides that no sentence imposed under § 924(c) shall run
concurrently with any other term of imprisonment -- the
district court ordered the two terms for Counts Five and Six
to run consecutively to each other and to the terms imposed
on Counts One through Four. An amended judgment of
conviction and sentence was entered March 29, 2012.
This appeal followed.
DISCUSSION
A. Applicable Law
We review de novo a district court's decision
resolving a question of statutory interpretation. United
States v. Cassesse, 685 F.3d 186, 188 (2d Cir. 2012).
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Section 924(c)(1) of Title 18 of the United States
Code provides in relevant part:
(A) 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 . . . 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;
(ii) if the firearm is brandished, be
sentenced to a term of imprisonment of not
less than 7 years; . . .
. . .
(C) In the case of a second or subsequent
conviction under this subsection, the person
shall --
(i) be sentenced to a term of imprisonment
of not less than 25 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 . . . .
(emphasis added). Robles argues that the "except" clause in
subsection (A) applies in this case, and because the twenty-
five-year mandatory minimum sentence imposed on Count Six was
"a greater minimum sentence . . . otherwise provided by this
subsection," the district court was not required to impose a
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consecutive mandatory minimum sentence of seven years for
Count Five.
In Deal v. United States, the defendant committed
six armed bank robberies. 508 U.S. 129, 130 (1993). He was
convicted on six counts of bank robbery and six corresponding
counts of carrying and using a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c). Id. Relying
on an earlier version of § 924(c), the district court
sentenced the defendant to five years on the first § 924(c)
count and to twenty years on each of the five § 924(c)
counts, the terms to run consecutively. Id. at 131. The
Supreme Court held that each of the defendant's "second
through sixth convictions under § 924(c)(1) in this single
proceeding" subjected him to a twenty-year mandatory term
under § 924(c). Id. at 130-33. The Court thus rejected the
defendant's argument that the mandatory consecutive term for
a "second or subsequent conviction" only applied to counts
charged in subsequent proceedings. Id. at 131-32.
In 1998, Congress amended § 924(c) to add, inter
alia, the "except" clause that now prefaces the mandatory
minimum terms of imprisonment imposed by the statute. See
Abbott v. United States, 131 S. Ct. 18, 24-25 (2010).1 In
Abbott, the Supreme Court construed the "except" clause as
1
The 1998 amendment also increased the penalty for
repeat § 924(c) convictions from a mandatory term of twenty years
to a mandatory minimum term of twenty-five years. See Abbott v.
United States, 131 S. Ct. 18, 25-26 (2010).
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"instruct[ing] judges to pick the single highest sentence
stipulated for a § 924(c) violation within § 924(c) itself,
and not to stack ten years for discharging a gun on top of
seven for brandishing the same weapon, whenever a defendant
does both." Id. at 30. The Court held, however, that "a
defendant is subject to a mandatory, consecutive sentence for
a § 924(c) conviction, and is not spared from that sentence
by virtue of receiving a higher mandatory minimum on a
different count of conviction." Id. at 23.
B. Application
While we have previously construed the "except"
clause in different contexts, see, e.g., United States v.
Tejada, 631 F.3d 614, 619 (2d Cir. 2011), we have yet to
address whether the "except" clause exempts a defendant from
consecutive mandatory minimum sentences where he is convicted
of multiple § 924(c) counts in a single judgment. 2 For
reasons to follow, we now hold that the "except" clause does
not exempt a defendant, sentenced on multiple § 924(c)
convictions in a single judgment, from receiving a
consecutive mandatory minimum sentence for each of his
§ 924(c) convictions.
First, Deal remains good law despite the fact that
it was decided prior to the 1998 amendment adding the
2
In a footnote in United States v. Cain, 671 F.3d 271,
278 n.2 (2d Cir. 2012), we impliedly endorsed the continued
application of Deal, albeit in a different context. We write to
explicitly affirm that view.
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"except" clause to § 924(c). Robles has not identified, and
we have not found, any authority suggesting that the "except"
clause somehow undermines the holding in Deal that a
defendant sentenced on multiple § 924(c) convictions in a
single judgment faces a mandatory penalty for each of his
convictions under § 924(c). To the contrary, the 1998
amendment expanded the reach of § 924(c) and strengthened its
penalties, see Abbott, 131 S. Ct. at 25, and we, like the
Supreme Court, are "disinclined to say that what Congress
imposed with one hand . . . it withdrew with the other," id.
at 27 (citation and internal quotation marks omitted).
Furthermore, both the Supreme Court and this Court have
continued to rely on Deal after 1998, albeit for different
grounds. See, e.g., Dorsey v. United States, 132 S. Ct.
2321, 2343 (2012); DePierre v. United States, 131 S. Ct.
2225, 2234 (2011); United States v. Cain, 671 F.3d 271, 278
n.2 (2d Cir. 2012).
Second, Abbott did not abrogate Deal, but rather,
reinforced its holding. The Abbott Court expressly held that
a defendant subject to a mandatory minimum sentence under
§ 924(c) "is not spared from that sentence by virtue of
receiving a higher mandatory minimum on a different count of
conviction." 131 S. Ct. at 23 (emphasis added). Rather, the
"except" clause only proscribes multiple penalties under
§ 924(c) where, for example, a defendant both discharges and
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brandishes the same firearm while committing an offense. Id.
at 30.
Third, although we have not explicitly reached this
question previously, our sister circuits have consistently
upheld sentences imposing consecutive mandatory minimum terms
for multiple § 924(c) convictions in the same proceeding.
Accord United States v. Major, 676 F.3d 803, 812 (9th Cir.
2012); United States v. Bowers, 638 F.3d 616, 620 (8th Cir.
2011); United States v. Mamalis, No. 11 Cr. 4687, 2012 WL
5975271, at *8 (4th Cir. Nov. 30, 2012) (unpublished
opinion); United States v. Bonner, 469 F. App'x 119, 136 (3d
Cir. 2012) (unpublished opinion); Haynes v. Sherrod, 476 F.
App'x 27, 27-28 (5th Cir. 2012) (unpublished opinion); United
States v. Hughes, 410 F. App'x 285, 287 (11th Cir. 2011)
(unpublished opinion). We agree with our sister circuits.
Accordingly, we hold that Robles was properly
sentenced to a mandatory consecutive seven-year term for his
first § 924(c) conviction on Count Five and a mandatory
consecutive twenty-five-year term for his second § 924(c)
conviction on Count Six.3
3
Robles also challenges the sufficiency of the evidence
for his conviction on Count Five, arguing that the government
failed to establish beyond a reasonable doubt that the weapon he
used was a "firearm" within the meaning of 18 U.S.C. § 921(a)(3).
This argument has no merit. The government presented three
witnesses who testified to the jury about Robles showing them a
gun in his waistband during the robbery. As the jury credited
their testimony and resolved any purported inconsistency among
them, "we must defer to the jury's resolution of the weight of
the evidence and the credibility of the witnesses." United
States v. O'Connor, 650 F.3d 839, 855 (2d Cir. 2011) (citation
and internal quotation marks omitted).
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CONCLUSION
For the foregoing reasons, the judgment of the
district court is AFFIRMED.
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