United States v. Vargas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 31, 2009
No. 08-20793
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHRISTOPHER JAMES VARGAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-491-ALL
Before REAVLEY, GARZA, and HAYNES, Circuit Judges.
PER CURIAM:*
Christopher James Vargas appeals the sentence imposed following his
guilty plea conviction for possession with intent to distribute 50 grams or more
of a mixture and substance containing a detectable amount of cocaine base in
violation of 21 U.S.C. § 841(a)(1) (Count One) and possession of a firearm during
and in relation to or in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A)(i) (Count Two). The district court sentenced Vargas to
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-20793
consecutive terms of 120 months of imprisonment on Count One and 60 months
of imprisonment on Count Two, for a total of 180 months of imprisonment.
Vargas contends that the district court committed reversible error when
it sentenced him to a consecutive five-year term of imprisonment for his
conviction under § 924(c)(1)(A)(i). Because his argument turns on statutory
interpretation, de novo review applies. See United States v. Salazar, 542 F.3d
139, 144 (5th Cir. 2008), cert. denied, 129 S. Ct. 1669 (2009).
Section 924(c)(1)(A)(i) provides that, “[e]xcept to the extent that a greater
minimum sentence is otherwise provided by this subsection or by any other
provision of law” any person who uses or carries a firearm during and in relation
to or in furtherance of a crime of violence or a drug trafficking crime “shall, in
addition to the punishment provided for such crime of violence or drug
trafficking crime[,] . . . be sentenced to a term of imprisonment of not less than
5 years.” § 924(c)(1)(A)(i). Vargas’s argument turns on the first phrase of this
provision, the so-called “exception” clause. See United States v. Collins, 205 F.
App’x 196, 197 (5th Cir. 2006).
In Collins, this court rejected the reading of § 924(c) urged by Vargas.
Collins, 205 F. App’x at 197-98. Although Collins is unpublished, this court
recently adopted the reasoning and holding of Collins in a published opinion.
See United States v. London, 568 F.3d 553, 564 (5th Cir. 2009). Therefore, the
district court did not err when it sentenced Vargas to a consecutive five-year
term of imprisonment for his conviction under § 924(c)(1)(A)(i).
AFFIRMED.
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