                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 11 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-50207

              Plaintiff - Appellee,              D.C. No. 8:10-cr-00145-DOC-1

  v.

KARON DOMINIQUE BOWSER,                          MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                             Submitted June 4, 2014**
                               Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.***

       Karon Dominque Bowser (“Bowser) was charged in a three count indictment

with: (1) conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371;


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
(2) armed bank robbery with forced accompaniment in violation of 18 U.S.C. §

2113(a), (d), (e); and (3) using or carrying, and brandishing a firearm during a crime

of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). There was evidence presented

at trial showing that in the course of a bank robbery, Bowser forced individuals to

remain in the bank, gather in a bathroom, and be bound with handcuffs, duct tape, and

string. There was also evidence presented that he pointed a gun at those individuals.

After a jury convicted Bowser on all three counts, the district judge imposed a

sentence of 204 months imprisonment. The prison term consisted of 60 months on

Count One and 120 months on Count Two to be served concurrently, and 84 months

(seven years) on Count Three, to be served consecutively to the terms imposed on

Counts One and Two.

      The district judge imposed the sentence on Count Three pursuant to 18 §

924(c)(1)(A)(ii), which provides that:

             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 . . . (including a crime of violence .
             . . that provides for enhanced punishment if committed by
             the use of a deadly weapon or dangerous 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 . . . if the
             firearm is brandished, be sentenced to a term of
             imprisonment of not less than 7 years[.]


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18 U.S.C. § 924(c)(1)(A)(ii) (emphasis added). The seven year term of imprisonment

must run consecutively to any other term of imprisonment.               18 U.S.C. §

924(c)(1)(D)(ii).

      On this appeal, Bowser argues that, because the sentence on Count 2—for

forced accompaniment in the course of committing a bank robbery—subjected him

to a mandatory minimum sentence of ten years, which was greater than the seven year

mandatory minimum sentence on Count Three, the seven year sentence did not apply

to him. More specifically, Bowser argues that the seven year mandatory minimum

sentence imposed on Count Three, based on brandishing a firearm during and in

relation to a crime of violence, could not be imposed because his conviction under that

section was based on the same conduct establishing his guilt for forced

accompaniment under § 2113(e).

      In Abbott v. United States, 131 S. Ct. 18, 26 (2010), however, the Supreme

Court rejected such a “transactional approach” to § 924(c)(1)(A)’s “except” clause.

Instead, the relevant inquiry is whether another statute provides a greater minimum

sentence for “the conduct § 924(c) proscribes, i.e., possessing [or brandishing] a

firearm in connection with a predicate crime.” Abbott, 131 S. Ct. at 26, 30 n.8.

Section 2113(e), the other statute on which Bowser relies, and which makes it an

offense to, “force[] any person to accompany him without the consent of such person”


                                          3
in the course of committing a robbery, is not dependent on a showing that the forced

accompaniment involved a firearm.

         Nor is there any merit to Bowser’s claim that “[r]eview of the case law shows

that the conduct that establishes the offense of forced accompaniment during a bank

robbery is always through the use of a firearm.” Notwithstanding the facts in the

cases Bowser cites, they do not hold that a person must be shown to have possessed

or used a firearm to be convicted of forced accompaniment. Indeed, the Supreme

Court has held that the only statute that presently satisfies the § 924(c) “except” clause

is 18 U.S.C. § 3559(c), which “command[s] a life sentence when certain repeat felons

are convicted of ‘firearms possession (as described in § 924(c)).’” Abbott, 131 S. Ct.

at 30.

         AFFIRMED.




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