United States v. Jorge Baez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14874 ELEVENTH CIRCUIT
MARCH 9, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-60052-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE BAEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 9, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Jorge Baez appeals his sentences for: (1) conspiracy to possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846; (2) conspiracy to interfere with
commerce by robbery, in violation of 18 U.S.C. § 1951(a); (3) carrying and using a
firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A); and (4) possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). On appeal, Baez argues that the district court erred in
concluding that it had to impose a five-year consecutive sentence for his conviction
under § 924(c)(1)(A). He maintains that the mandatory minimum in § 924(c) did
not apply to his case because he faced a greater mandatory minimum sentence for
his drug conspiracy conviction. Baez acknowledges, however, that his argument is
foreclosed by United States v. Segarra, 582 F.3d 1269 (11th Cir. 2009). For the
reasons stated below, we affirm.
“We review questions of statutory interpretation de novo.” Segarra, 582
F.3d at 1271. Under the prior panel precedent rule, “a prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or undermined to
the point of abrogation by the Supreme Court or by this court sitting en banc.”
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
In relevant part, § 924(c) provides:
Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any
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person who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking
crime that provides for an enhanced punishment if committed by the
use of a deadly or dangerous weapon or device) . . . 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). Section 924(c) further states that the sentence imposed
under § 924(c) must run consecutively to any other term of imprisonment imposed
on the defendant. 18 U.S.C. § 924(c)(1)(D)(ii).
In Segarra, we concluded that the plain language of § 924(c)(1)(A) requires
a consecutive sentence where the defendant is subject to mandatory minimum
sentences for both a § 924(c) offense and an underlying drug offense. Segarra,
582 F.3d at 1272-73. Recently, in Abbot v. United States, the Supreme Court
affirmed our interpretation of § 924(c)(1)(A). Abbott, 562 U.S. ___, ___, 131 S.Ct.
18, 23, 178 L.Ed.2d 348 (2010). The Supreme Court held that the statute’s
“except” clause only applies where “another provision of law directed to conduct
proscribed by § 924(c) imposes an even greater mandatory minimum.” Id. at ___,
131 S.Ct. at 23. Thus, the “except” clause does not prohibit consecutive sentences
when a defendant is subject to a mandatory minimum under both § 924(c) and a
drug statute.
Baez’s argument that he should not have received a consecutive sentence
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under § 924(c) is squarely foreclosed by Segarra and Abbott. Accordingly, after
review of the record and the parties’ briefs, we affirm Baez’s sentences.
AFFIRMED.
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