                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                DEC 14, 2010
                                No. 10-10669                     JOHN LEY
                            Non-Argument Calendar                  CLERK
                          ________________________

                       D.C. Docket No. 5:09-cr-00033-RS-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

JOHN LEO DE MARCO,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                               (December 14, 2010)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      John De Marco appeals his sentence of 438 months of imprisonment for two

counts of possessing with intent to distribute marijuana, 21 U.S.C. § 841(b)(1)(D),
two counts of possessing firearms during and in relation to a drug trafficking

crime, 18 U.S.C. § 924(c), two counts of possessing a firearm as a convicted felon,

id. § 922(g), and one count of possessing an unregistered silencer, 26 U.S.C. §§

5845(a), 5861(d), 5871. De Marco makes two challenges to the enhancement of

his sentences for possessing firearms in relation to his drug crimes under section

924(c)(1). De Marco also challenges, for the first time on appeal, the

constitutionality of his sentence. We affirm.

      De Marco argues that the “except” clause in section 924(c)(1)(A) precluded

the district court from imposing consecutive mandatory minimum sentences for his

two violations of section 924(c), but this argument is foreclosed by the recent

decision of the Supreme Court in Abbott v. United States, ___ U.S. ___, 131 S. Ct.

18, 23 (2010), “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.” De

Marco was convicted of possessing 35 firearms in April 2009 and six other

firearms in July 2009. The district court did not err by sentencing De Marco to

consecutive terms of 60 months and 300 months of imprisonment for his firearms

offenses.

      De Marco next argues that the district court erred by sentencing him under

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the recidivist provision of section 924(c)(1)(C)(i) because “all of his convictions”

under section 924(c) “were simultaneous,” but De Marco’s argument is foreclosed

by the decision in Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993 (1993),

that “findings of guilt on several counts are necessarily arrived at successively in

time.” Id. at 133 n.1, 113 S. Ct. at 1997 n.1. De Marco contends that Deal is

distinguishable because his convictions were obtained by pleas of guilt and the

defendant in Deal was convicted by a jury, but the Court held in Deal that a

“conviction” under section 924(c)(1) “refers to the finding of guilt by a judge or

jury,” id. at 132, 113 S. Ct. at 1996. De Marco also contends, for the first time,

that he is entitled to relief under the rule of lenity, but “[t]here is utterly no

ambiguity” in the language of section 924(c)(1) that “requires . . . a conviction

after the first conviction,” id. at 135, 113 S. Ct. at 1998. De Marco was convicted

of twice violating section 924(c), and “[s]ection 924 requires a minimum sentence

of 25 years for all subsequent convictions under the statute.” United States v.

Phaknikone, 605 F.3d 1099, 1112 (11th Cir. 2010). The district court did not err

by sentencing De Marco to 300 months of imprisonment for his second violation

of section 924(c).

       De Marco also argues for the first time on appeal that his sentence

constitutes cruel and unusual punishment in violation of the Eighth Amendment to

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the United States Constitution, but we disagree. De Marco’s sentences of 60

months and 300 months of imprisonment for violating section 924(c) were

mandatory, and we previously have upheld a mandatory minimum sentence

against an Eighth Amendment challenge, United States v. Reynolds, 215 F.3d

1210, 1214 (11th Cir. 2000). Although De Marco’s crimes involved 20 pounds of

marijuana and 41 firearms and he had prior convictions for possessing with intent

to distribute marijuana, possession of marijuana, and possessing a firearm in

commission of a felony, the district court sentenced De Marco within the guideline

range to concurrent terms of 78 months of imprisonment for his five other drug

and firearm offenses. “In general, a sentence within the limits imposed by statute

is neither excessive nor cruel and unusual under the Eighth Amendment.” United

States v. Moriarty, 429 F.3d 1012, 1014 (11th Cir. 2005) (internal quotation marks

omitted). The district court did not plainly err in sentencing De Marco.

      We AFFIRM De Marco’s sentence.




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