06-0131-cr
U.S. v. Whitley



                        UNITED STATES COURT OF APPEALS

                            FOR THE SECOND CIRCUIT

                               August Term 2007

Heard: April 14, 2008                                Decided: June 16, 2008

                            Docket No. 06-0131-cr

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UNITED STATES OF AMERICA,
          Appellee,

                   v.

LATIE WHITLEY,
          Defendant-Appellant.
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Before: NEWMAN, SACK, and B.D. PARKER, Circuit Judges.

         Appeal from the December 30, 2005, judgment of conviction of the

United States District Court for the Southern District of New York

(Richard Conway Casey, District Judge), sentencing the Defendant to

concurrent terms of 282 months for a Hobbs Act robbery and a career

criminal firearms possession violation, plus a consecutive mandatory

minimum term of 120 months for discharging a firearm.            Defendant

contends that the “except” clause of 18 U.S.C. § 924(c)(1)(A) exempts

him from the ten-year minimum consecutive sentence provided by 18

U.S.C. § 924(c)(1)(A)(iii).

         Remanded for resentencing.
                                 Kim P. Bonstrom, Bonstrom & Murphy,
                                   Shelter Island, N.Y., for Defendant-
                                   Appellant.

                                 Anjan Sahni, Asst. U.S. Atty., New York,
                                   N.Y. (Michael J. Garcia, U.S. Atty.,
                                   Justin S. Weddle, Asst. U.S. Atty., New
                                   York,   N.Y.,   on  the   brief),   for
                                   Appellee.

JON O. NEWMAN, Circuit Judge.

     This criminal appeal presents the unusual situation in which the

literal meaning of a sentencing statute has been disregarded to the

detriment of a defendant. Latie Whitley appeals from the December 30,

2005, judgment of the United States District Court for the Southern

District of New York (Richard Conway Casey, District Judge), following

a four-day trial. He was sentenced principally to concurrent terms of

282 months for a Hobbs Act robbery and a career criminal firearms

possession violation, plus a consecutive mandatory minimum term of 120

months   for   discharging   a   firearm.    His   appeal    challenges   the

imposition     of   the   consecutive   ten-year   minimum    sentence    for

discharging a firearm, see 18 U.S.C. § 924(c)(1)(A)(iii), both because

the “except” clause of subsection 924(c)(1)(A) exempts him from the

minimum sentence, and because he lacked the mens rea that he asserts

is required for a valid firearms discharge conviction.

     We agree that the consecutive minimum ten-year sentence is

inapplicable to Whitley because he was subject to a higher fifteen-

year minimum sentence as an armed career criminal.           As a result, we

                                     -2-
need not consider whether the ten-year consecutive sentence provision

requires mens rea.    We therefore remand for resentencing.

                               Background

     Whitley participated in an armed robbery of a delicatessen in the

Bronx in November 2004, during which he emptied the store’s cash

register, pointed a gun at employees, and inadvertently discharged the

firearm, injuring himself in the face.      The indictment charged three

counts.   Count One charged a Hobbs Act robbery, in violation of 18

U.S.C. § 1951.   Count Two charged using, carrying, and possessing a

firearm that was discharged during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Count Three,

the armed career criminal offense, charged possessing a firearm after

having been convicted of at least three violent felonies or serious

drug offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

Count Three was bifurcated for separate trial to avoid any prejudice

from evidence of the prior offenses relevant to that count. The jury

returned guilty verdicts on all three counts.

     As to Count Two, the Court, over Whitley’s objection, instructed

the jury to make a finding on whether the firearm was discharged and

stated the “discharge need not be intentional.” The jury specifically

found that the firearm was discharged.      As to Count Three, the jury

found that Whitley had at least three prior convictions for robbery or

narcotics offenses.

                                  -3-
       The pre-sentence report (“PSR”) calculated an adjusted offense

level of 34, based on a grouping of Counts One and Two, which, in

Criminal History Category VI, yielded a sentencing range of 262 to 327

months. The PSR recommended a consecutive 120-month sentence on Count

Two.       Judge Casey sentenced Whitley to concurrent terms of 262 months

on Counts One and Three, plus 120 months consecutively on Count II.

                                      Discussion

       The validity of Whitley’s ten-year consecutive term depends on

the proper construction of the language contained in subsection (c) of

18 U.S.C. § 924, particularly the introductory “except” clause of

subdivision (1)(A) of subsection 924(c).1              That subsection specifies

three levels of minimum sentences for firearms activity in connection



       1
           In   the   District   Court,    Whitley     challenged     the     ten-year

consecutive sentence imposed under section 924(c)(1)(A)(iii) on double

jeopardy        grounds,   related   to,   but   not   precisely    relying    on,   an

interpretation of the “except” clause.             The Government concedes, see

Br. for Appellee at 19, however, that if Whitley’s reading of the

clause is correct, the plain error standard of review would be met.

See United States v. Simmons, 343 F.3d 72, 80 (2d Cir. 2003) (relaxed

plain error review for some sentencing errors); United States v.

Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002) (same); United States

v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (same).

                                           -4-
with a crime of violence, depending on whether the firearm was

possessed, brandished, or discharged.         The subsection provides:

    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 (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) for which the person may be
    prosecuted in a court of the United States, 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;

                (ii) if the firearm is brandished, be sentenced to a
              term of imprisonment of not less than 7 years; and

                (iii) if the firearm is discharged, be sentenced to
              a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added).               Where applicable, the

five-, seven-, or ten-year sentences (for possession, brandishing, or

discharge, respectively) must run consecutively to any other term of

imprisonment, including the term imposed for the underlying crime of

violence. See id. § 924(c)(1)(D)(ii).

       Subsection (e) of 18 U.S.C. § 924, the armed career criminal

provision, requires a minimum term of fifteen years for any defendant

who,   like     Whitley,   has   been   convicted   of   violating   18   U.S.C.

§   922(g)(1)    (prohibiting    felons   from   possessing   firearms    in   or

affecting commerce), and has three previous convictions for a violent

                                        -5-
felony or a serious drug offense. See 18 U.S.C. § 924(e).

     Thus, if the “except” clause of subsection 924(c)(1)(A) means

what it literally says, the ten-year minimum sentence required by

subdivision (iii) of that subsection for discharge of a firearm, which

must run consecutively by virtue of subsection 924(c)(1)(D)(ii), does

not apply to Whitley because, in the words of that clause, “a greater

minimum sentence is otherwise provided by . . . any other provision of

law,” namely, subsection 924(e), which subjects him to a fifteen-year

minimum sentence.

     The Government urges us to reject the literal meaning of the

“except” clause because it is “unsupported by the text, design, or the

purpose of the statute,” Br. for Appellee at 25, “would produce

illogical    and   distorted   outcomes    that   Congress    clearly   did   not

intend,” id., and has been rejected by other circuits, id. at 30.              We

consider these arguments in turn.

     (a) Text.      The Government’s “text” argument curiously departs

from the wording of the “except” clause.               Its brief reads, “The

prefatory exception clause in Section 924(c)(1)(A) states that unless

some other statutory provision requires a higher minimum consecutive

sentence for a firearm offense, one of the sentences specified in

Sections    924(c)(1)(A)(i)    through    (iii)--for   use,   brandishing,     or

discharge of a firearm--should be imposed.” Id. at 25 (emphases

added).    However, the emphasized words, “consecutive” and “firearm,”

                                     -6-
do not appear in the “except” clause.               Proceeding from its rewritten

version       of   the   clause,    the    Government    then   illustrates        what   it

contends is the limited meaning of the clause.                        Possession of an

ordinary handgun in furtherance of a crime of violence would require

only      a        five-year       consecutive      sentence      under       subsection

924(c)(1)(A)(i); possession of an assault rifle would require a higher

ten-year consecutive sentence under subsection 924(c)(1)(B)(i); and

possession of a machine gun would require the still higher thirty-year

consecutive sentence under subsection 924(c)(1)(B)(ii). See id. at 26.

But, in the Government’s view, the “except” clause does not exempt

Whitley       from    the    consecutive      ten-year    sentence      prescribed         by

subsection 924(c)(1)(A)(iii) for discharging a firearm because his

conviction on Count Three, although requiring a higher fifteen-year

minimum sentence, does not require a higher consecutive sentence. The

flaw in the Government’s argument, of course, is that the word

“consecutive” does not appear in the text of the “except” clause.                         The

clause at the start of subsection 924(c) exempts Whitley from the

minimum ten-year sentence for discharging a firearm, contained in

subsection         924(c),   because      another   provision    of    law,   18    U.S.C.

§ 924(e), provides for a higher fifteen-year minimum sentence for his

conviction on Count Three.

       (b) Design. The Government’s “design” argument, advanced at oral

argument, is drawn from United States v. Alaniz, 235 F.3d 386 (8th

                                             -7-
Cir. 2000). Alaniz declined to read the “except” clause literally out

of concern that, in the absence of the clause, “the self-standing

provisions in [subdivisions] (c)(1)(B) and (c)(1)(C) [of section 924]

are grammatically and conceptually incomplete.” Id. at 389.                            The

Eighth Circuit noted that in the previous version of section 924(c),

the enhanced penalties for types of weapons and for prior convictions

were set forth in what the Court called “an undivided subsection” (set

forth in the margin2), id. at 388, meaning that there were no numbered



     2
         Before 1998, section 924(c) provided:



             Whoever,    during      and   in    relation   to    any   crime     of

     violence or drug trafficking crime (including a crime of

     violence or drug trafficking crime which provides for an

     enhanced punishment if committed by the use of a deadly or

     dangerous weapon or device) for which he may be prosecuted

     in a court of the United States, uses or carries a firearm,

     shall, in addition to the punishment provided for such crime

     of violence or drug trafficking crime, be sentenced to

     imprisonment       for   five     years,    and   if   the   firearm    is    a

     short-barreled           rifle,       short-barreled         shotgun,        or

     semiautomatic assault weapon, to imprisonment for ten years,

     and if the firearm is a machinegun, or a destructive device,

                                           -8-
or lettered subdivisions within section 924(c).             The Court thought

that the “except” clause was needed “to link the remaining prefatory

language   in   (c)(1)(A)   to   each     sentence    length     set   forth   in




     or is equipped with a firearm silencer or firearm muffler,

     to imprisonment for thirty years.



           In the case of his second or subsequent conviction

     under this subsection, such person shall be sentenced to

     imprisonment for twenty years, and if the firearm is a

     machinegun, or a destructive device, or is equipped with a

     firearm silencer or firearm muffler, to life imprisonment

     without release. Notwithstanding any other provision of law,

     the court shall not place on probation or suspend the

     sentence of any person convicted of a violation of this

     subsection, nor shall the term of imprisonment imposed under

     this subsection run concurrently with any other term of

     imprisonment   including    that     imposed    for   the   crime   of

     violence or drug trafficking crime in which the firearm was

     used or carried.



18 U.S.C. § 924(c)(1) (1994), amended by Pub. L. No. 105-386, 18

U.S.C. § 924 (c)(1) (Supp. IV 1998).

                                    -9-
subdivisions (c)(1)(B) and (c)(1)(C).” Id. at 389.               We disagree.

     Passing the objection that even a grammatical imperfection would

be a dubious basis for adding a ten-year consecutive sentence contrary

to the plain wording of a statute, we fail to see any grammatical

problem at all, and neither the Eighth Circuit or the Government has

identified any problem that would result in the absence of the

“except” clause.      Furthermore, the structural argument encounters the

objection     that    the   need    to     link   subdivision     (c)(1)(A)     with

subdivisions (c)(1)(B) and (c)(1)(C) does not explain the broad phrase

“or by any other provision of law; if linking the various provisions

of subsection (c)(1) together was the sole purpose of the “except”

clause, the clause would have ended with the phrase “provided by this

subsection,” and the phrase “or by any other provision of law” would

have been unnecessary. Finally, we note that, after the Department of

Justice had an opportunity to see a Senate version of what became the

1998 amendment of section 924(c), which included the “except” clause,

the Department resubmitted to Congress its preferred version of an

amended     section   924(c),      which    included   lettered     and   numbered

subdivisions but did not include the “except” clause.3             Apparently the



     3
         The Senate version was introduced by Senator Helms on January 22,

1997. See S. 191, 105th Cong. (Jan. 22, 1997).                  The Department of

Justice presented its proposal a month later. See Letter from Andrew

                                         -10-
Department did not then think the “except” clause was needed to avoid

a grammatical problem.

     (c) Purpose. Of arguably greater force is the Government’s claim

that a literal reading of the “except” clause would be inconsistent

with the congressional purpose in amending section 924(c).                The

amended   version   was   Congress’s   response   to   the   Supreme   Court’s

decision in Bailey v. United States, 516 U.S. 137 (1995).          The Court

there ruled that the then-existing version of section 924(c), which

provided a five-year minimum consecutive sentence for any person who

”uses or carries a firearm” during a drug trafficking or violence

crime, required “active employment of the firearm by the defendant, a

use that makes the firearm an operative factor in relation to the

predicate offense.” Id. at 143 (emphasis in original).

     Amended section 924(c) overcame the Bailey interpretation by

extending the provision’s coverage to any person who, “in furtherance

of [a drug trafficking or violence] crime, possesses a firearm.” 18

U.S.C. § 924(c)(1)(A).      The amended section also provided graduated

penalties of five, seven, and ten years for possession, brandishing,

and discharge of an ordinary firearm, and increased the subsequent

offender penalty from twenty to twenty-five years.




Fois, Ass’t Attorney General, Office of Legislative Affairs, to Albert

Gore, Feb. 25, 1997.

                                   -11-
     The Government argues that it would be inconsistent with the

evident congressional purpose to expand the coverage of section 924(c)

and increase penalties if the “except” clause were read literally to

exempt Whitley from the ten-year minimum consecutive penalty for

discharging a firearm, pursuant to subsection 924(c)(1)(A)(iii), just

because he was subjected to the higher fifteen-year minimum penalty of

subsection 924(e).

     Although we have no doubt that a congressional purpose was to

enhance firearms penalties,4 we do not regard it as inconsistent with

that purpose for Congress to have provided a series of increased

minimum sentences and also to have made a reasoned judgment that where

a defendant is exposed to two minimum sentences, some of which were

increased by the 1998 amended version, only the higher minimum should

apply.     Indeed, such a sentencing pattern seems eminently sound.

     (d) Illogical results.    The Government contends that reading the

“except” clause literally can lead to illogical results.         As an

example, the Government points out that a defendant who brandished a



     4
         See, e.g., 143 Cong. Rec. S405 (Jan. 21, 1997) (statements of

Senator Helms and Abraham); see generally Paul J. Hofer, Federal

Sentencing for Violent and Drug Trafficking Crimes Involving Firearms:

Recent Changes and Prospects for Improvement, 37 Am. Crim. L. Rev. 41,

65 (2000).

                                   -12-
firearm, resulting in a seven-year minimum consecutive sentence, see

18 U.S.C. § 924(c)(1)(A)(ii), would be subject to a twelve-year

minimum sentence if he also possessed 500 grams of cocaine, resulting

in a five-year minimum sentence, see 21 U.S.C. § 841(b)(1)(B), but

would be subject to only a ten-year minimum sentence if he possessed

five kilograms of cocaine, resulting in a ten-year minimum sentence,

see 21 U.S.C. § 841(b)(1)(A), because that sentence is a higher

minimum than the brandishing minimum.

     Even this apparent anomaly, which disappears upon close scrutiny,

does not persuade us to reject the literal wording of the “except”

clause.   The reason is that no court would be required to sentence the

five-kilogram defendant to only the ten-year minimum.   That defendant

would face a maximum sentence of life, see id., and a sentencing

judge, acting consistent with 18 U.S.C. § 3553(a), could increase the

sentence above the minimum in view of the brandishing.          If the

“except” clause subjected more serious drug offenders to a lower

maximum sentence than less serious drug offenders, the Government’s

anomaly argument would have some force.

     Moreover, even the apparent anomaly advanced by the Government

could be overcome if the “except” clause were limited to higher

minimums contained only in firearms offenses, rather than, as it

reads, to higher minimums provided “by any other provision of law.”

We note that the Fifth and Eighth Circuits have interpreted the

                                 -13-
“except” clause to have a firearms limitation. See United States v.

Collins, 205 Fed. Appx. 196, 198 (5th Cir. 2006) (“[I]t is reasonable

to read the phrase ‘any other provision of law’           as referring to legal

provisions outside the confines of § 924(c) that concern firearm

possession . . . .”) (emphasis added); Alaniz, 235 F.3d at 389

(“Subdivision (c)(1)(A)’s greater minimum sentence clause refers only

to the firearm-related conduct proscribed either by § 924(c)(1) or ‘by

any other provision of law.’”) (emphasis added); see also United

States v. Jolivette, 257 F.3d 581, 587 (6th Cir. 2001) (citing with

approval the “firearm-related conduct” language from Alaniz).

     (e)   Case   law.   Finally,    the    Government    points   out   that   the

Fourth, Sixth, and Eighth Circuits have declined to read the “except”

clause literally, see United States v. Studifin, 240 F.3d 415, 423

(4th Cir. 2001); Jolivette, 257 F.3d at 587 (Sixth Circuit); Alaniz,

235 F.3d at 389 (Eighth Circuit), as have the Fifth and Sixth Circuits

in non-precedential decisions, see Collins, 205 Fed. Appx. at 198

(Fifth Circuit); United States v. Baldwin, 41 Fed. Appx. 713, 715 (6th

Cir. 2002).

     Although we hesitate to precipitate a circuit split, we conclude

that there are substantial grounds for doing so with respect to the

interpretation of the “except” clause. First, we have repeatedly been

instructed to give statutes a literal reading and apply the plain

meaning    of   the   words   Congress    has   used.   See,   e.g.,   Connecticut

                                         -14-
National Bank v. Germain, 503 U.S. 249, 253-54 (1992); Central Trust

Co. v. Official Creditors’ Committee of Geiger Enterprises, Inc., 454

U.S. 354, 359-60 (1982); Rubin v. United States, 449 U.S. 424, 430

(1981); Caminetti v. United States, 242 U.S. 470, 485 (1917). Indeed,

the Supreme Court has reversed a court of appeals for not giving a

literal reading to another provision of section 924(c). See United

States v. Gonzales, 520 U.S. 1, 8 (1997) (observing, with respect to

what is now subsection 924(c)(1)(D)(ii), that “‘where there is no

ambiguity in the words, there is no room for construction.    The case

must be a strong one indeed, which would justify a court in departing

from the plain meaning of words . . . .’”) (quoting United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 (1820) (Banks Law Publishing

Co.) (1904) (Marshall, C. J.)).     And last month, the Supreme Court

reversed a court of appeals for “contort[ing]” the “plain terms” of

section 924(e) by reading the phrase “maximum term of imprisonment

prescribed by law” to mean the maximum without regard to recidivist

enhancements. See United States v. Rodriquez, 128 S. Ct. 1783, 1788

(2008).

     We acknowledge that where the literal meaning of a statute yields

an illogical result or one manifestly not intended by the legislature,

departure from strict adherence to statutory text may be warranted.

See, e.g., Lamie v. United States Trustee, 540 U.S. 526, 534 (2004);

United States v. Bryan, 339 U.S. 323, 338 (1950).   Even in the absence

                                  -15-
of such circumstances, the Supreme Court many years ago made an

exception to the plain meaning of a criminal statute to benefit a

minister by exempting him from coverage of the statute. See Holy

Trinity Church v. United States, 143 U.S. 457, 459 (1892).       But, other

than the decisions cited above that have rewritten the “except” clause

in different ways to escape its plain meaning, we are aware of no

decision rejecting the literal meaning of statutory language to the

detriment of a criminal defendant.

     Second, the case law rejecting a literal reading of the “except”

clause was initiated by the Eighth Circuit’s reliance in Alaniz on the

questionable and unexplained argument, which we rejected above, that

a literal reading would render section 924(c) “grammatically and

conceptually    incomplete.”   235   F.3d   at   389.   Alaniz   was   cited

approvingly by Studifin, 240 F.3d at 422-23, and later by Jolivette,

257 F.3d at 587, Collins, 205 Fed. Appx. at 715, and Baldwin, 41 Fed.

Appx. at 198.

     Third, four of the five decisions rejecting a literal reading of

the “except” clause did not involve a defendant, like Whitley, subject

to a minimum fifteen-year sentence required by 18 U.S.C. § 924(e).

The defendants in Alaniz and Collins were convicted of narcotics

offenses, and the Eighth and Fifth Circuits rejected a literal reading

of the “except” clause by limiting it to statutes imposing higher

minimum sentences for firearms offenses, see Alaniz, 235 F.3d at 389;

                                     -16-
Collins, 205 Fed. Appx. at 198, a reading that would still exempt

Whitley.     The defendants in Jolivette and Baldwin were convicted of

violating bank robbery statutes that did not provide any minimum

sentences, see Jolivette, 257 F.3d at 585; Baldwin, 41 Fed. Appx. at

714; so the Sixth Circuit’s rejection of a literal reading of the

“except” clause is dictum.

      Only the Fourth Circuit has declined to read the “except” clause

literally as applied to a defendant, like Whitley, who has been

convicted of violating section 922(g)(1) and punished as an armed

career criminal under section 924(e). In Studifin, the Court approved

a consecutive seven-year sentence under subsection 924(c)(1)(A)(ii),

see 240 F.3d at 421 n.4, in addition to concurrent fifteen-year

sentences for a Hobbs Act robbery and an armed career criminal

conviction under section 922(g)(1), for which the minimum sentence was

required by section 924(e), see 240 F.3d at 420-24.                    The Court

accomplished this result by reading the “except” clause to exempt

minimum sentence requirements only where another provision provides

“an   even   greater   mandatory      minimum    consecutive   sentence      for   a

violation of § 924(c).” Id. at 423 (emphasis added).                 In cases not

involving the minimum sentence of section 924(e), the Sixth and Eighth

Circuits     have   also   inserted    the    word   “consecutive”    into   their

understanding of the “except” clause. See Baldwin, 41 Fed. Appx. at




                                       -17-
715; Alaniz, 235 F.3d at 389.5

     The     judicial   insertion    of   the   word   “consecutive”    into    the

legislative language that covers “a greater minimum sentence . . .

provided . . . by any other provision of law” was deemed warranted by

the Fourth Circuit in Studefin to avoid the perceived anomaly of not

imposing consecutive sentences under section 924(c)(1)(A) for armed

career criminals sentenced under section 924(e) while imposing such

sentences on “less serious offenders who have committed fewer prior

serious felonies.” 240 F.3d at 423 (footnote omitted).                  It is not

readily apparent why such a result would be an anomaly.            The firearms

offender with fewer than three prior serious felonies would receive a

minimum     five-,   seven-,    or   ten-year    consecutive     minimum    under

subdivisions 924(c)(1)(A)(i)-(iii), or, if sentenced as an armed

career criminal, would be subject to the higher fifteen-year minimum

sentence     provided   by   subsection   924(e).      The   minimums   would   be



     5
         Condemning the insertion of words into a statute as “not faithful

to the statutory text,” the Supreme Court in Rodriquez rejected the

defendant’s argument that “reads [section 924(e)] as referring to ‘the

maximum term of imprisonment prescribed by law’ for a defendant with

no prior convictions that trigger a recidivist enhancement,” because

“that is not what [section 924(e)] says.” Rodriquez, 128 S. Ct. at

1788-89 (emphasis in original).

                                      -18-
appropriately graded, and the sentencing judge, although not required

to impose a consecutive firearms sentence on top of the fifteen-year

sentence,    would        retain   the     authority    to   do      so   if     appropriate,

consistent with 18 U.S.C. § 3553(a), thereby avoiding the perceived

anomaly.

       The Fourth Circuit was also concerned that a literal reading of

the “except” clause would displace the prohibition of section 924(c)

that   “no   term       of    imprisonment     imposed    on     a    person      under   this

subsection shall run concurrently with any other term of imprisonment

. . . .” 18 U.S.C. § 924(c)(1)(D)(ii). See Studefin,                       240 F.3d at 423

& n.8.     This argument assumes that if the “except” clause is read

literally,        the    five-,    seven-,    and     ten-year       minimum     punishments

provided     by    subdivisions      924(c)(1)(A)(i)-(iii)             would      be   imposed

concurrently.           That is incorrect.          If the “except” clause is read

literally, those less-than-fifteen-year minimum punishments would not

be imposed at all on a defendant punished under section 924(e).                             A

defendant subject to the higher minimum of section 924(e) would be

exempt from the lower minimum penalties of subsection 924(c)(1)(A).

Of course, the sentencing judge would retain the authority to reflect

the offender’s use of a firearm by increasing the minimum fifteen-year

sentence     to     any      appropriate     level,    consistent         with    18   U.S.C.

§ 3553(a), even as high as life. See Custis v. United States, 511 U.S.

485, 487 (1994) (noting that maximum sentence under 18 U.S.C. § 924(e)

is life without parole); United States v. Washington, 462 F.3d 1124,

                                             -19-
1139 n.8 (9th Cir. 2006) (“When a statute fails to state a maximum

sentence, the maximum available sentence under the statute is life.”).

     Read literally, as we believe the “except” clause of subsection

924(c)(1)(A)       should     be,   the     clause       exempts   Whitley   from    the

consecutive       ten-year    minimum      sentence      for   discharging   a   firearm

because he is subject to the higher fifteen-year minimum sentence

provided by section 924(e).              The case must therefore be remanded for

resentencing.        Upon resentencing, Whitley remains subject to the

minimum fifteen-year sentence provided by section 924(e), and the

sentencing judge retains authority to select any appropriate sentence,

consistent with 18 U.S.C. § 3553(a), whether or not pursuant to the

Guidelines,6 above that minimum.

                                         Conclusion

     The case is remanded for resentencing.




     6
         The Government contends that the Guidelines range used by the

District Court, 382 to 447 months, was incorrect and should have been

360 months to life.          Both the Guidelines range used by the Court and

the different range (with a lower bottom) now urged by the Government

assume that the 120 months provided by the firearm discharge provision

of subsection 924(c)(1)(A)(iii) is applicable to Whitley.                    Because we

reject     that   assumption,       we    leave    the    calculation   of   a   correct

Guidelines range to the District Court on remand.

                                            -20-
