                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4309


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GERALD ADRIAN WHEELER, a/k/a Bay-Bay,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.     Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00363-RJC-3)


Submitted:    April 29, 2009                  Decided:   May 21, 2009


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Reggie E. McKnight, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Gerald Adrian Wheeler pled guilty, pursuant to a plea

agreement,      to    conspiracy       to       possess    with   the    intent    to

distribute cocaine, cocaine base, and marijuana, in violation of

21 U.S.C. § 846 (2006) (Count 1); possession of a firearm during

and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c) (2006) (Count 6); and possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006)

(Count   7).         He   received     a    total    sentence     of    180   months’

imprisonment, comprised of 120 months’ imprisonment for Count 1,

sixty months’ imprisonment for Count 6, to be served consecutive

to Count 1, and 120 months’ imprisonment for Count 7, to be

served concurrently with Count 1.                   Wheeler’s appellate counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal

but   arguing    that     the   district        court     incorrectly    applied   18

U.S.C. § 924(c)(1)(A) to sentence Wheeler to a consecutive sixty

month sentence on Count 6, because Wheeler was already subject

to the higher 120 month mandatory minimum sentence pursuant to

21 U.S.C. § 841(a)(1), (b)(1)(B) for Count 1.                     Wheeler filed a

pro se supplemental brief, reiterating the contention raised in

the Anders brief.         We affirm.




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             Because Wheeler did not object during sentencing, our

review is for plain error. *           United States v. Olano, 507 U.S.

725, 732 (1993); United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005).     Under the plain error standard, Wheeler must show:

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights.           Olano, 507 U.S. at 732-34.

             18 U.S.C. § 924(c)(1)(A) reads, in pertinent part:

     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[,] . . . possesses a firearm, 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 five years.

             Wheeler’s argument is foreclosed by United States v.

Studifin,    240   F.3d   415   (4th    Cir.    2001).    In    Studifin,   we

determined     that   the   “except        to   the   extent”   language    in

§ 924(c)(1)(A) merely serves “to link the remaining prefatory

language” with other subdivisions of the chapter.                Id. at 423.




     *
       Though Wheeler’s plea agreement contained an appeal waiver
in which Wheeler agreed to waive all rights to contest his
conviction or sentence, except for claims of prosecutorial
misconduct or ineffective assistance of counsel, the Government
has failed to assert this waiver.        Accordingly, we address
Wheeler’s claims on the merits.           See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (where Anders
brief is filed, “the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review”).



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Moreover,

       [T]he “any other provision of law” language provides a
       safety valve that would preserve the applicability of
       any other provisions that could impose an even greater
       mandatory minimum consecutive sentence for a violation
       of § 924(c). In other words, we read this language as
       simply reserving the possibility that another statute
       or   provision    might   impose   a  greater  minimum
       consecutive    sentencing   scheme   for   a  § 924(c)
       violation, and not as negating the possibility of
       consecutive sentencing in the circumstances of the
       present case.

Id.     Thus, as held in Studifin, the introductory language of

§ 924(c)(1)(A) merely allows the provision to work together with

other applicable statutory provisions; it does not, as Wheeler

suggests, render the other statutory provisions the exclusive

minimum sentences to be applied to a given defendant.                                 While

Wheeler     tries     to    distinguish           Studifin   by    noting      that     the

defendant in that case was an armed career criminal, that fact

had    no   bearing    upon       our   ruling.       Accordingly,        as   Wheeler’s

argument is foreclosed by Studifin, the district court did not

err    in    sentencing           Wheeler     to     sixty      months’     consecutive

imprisonment        under     § 924(c)(1)(A)          even      though     Wheeler     was

already subject to the ten year mandatory minimum of 18 U.S.C.

§ 841(b)(1)(B).

             Counsel       also    argues     that    sentencing     Wheeler     to     two

statutory     minimums        for       two   offenses       violates      the    Eighth

Amendment’s     prohibition         against       cruel   and    unusual     punishment.

This    argument      fails,       however.         Though      “[s]evere,     mandatory

                                              4
penalties    may    be    cruel,         . . . they    are    not    unusual     in   the

constitutional sense.”            Harmelin v. Michigan, 501 U.S. 957, 994

(1991).

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

review.      Finding      no     error,     we     affirm    the    district     court’s

judgment.        This court requires counsel to inform Wheeler, in

writing,    of    the    right      to    petition    the    Supreme    Court    of   the

United States for further review.                    If Wheeler requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, counsel may move in this court for leave to

withdraw from representation.                Counsel’s motion must state that

a copy of the motion was served on Wheeler.                         We dispense with

oral   argument      because        the    facts     and    legal    contentions      are

adequately       presented     in    the    materials       before     the   court    and

argument would not aid the decisional process.

                                                                                AFFIRMED




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