                               NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                               FOR THE NINTH CIRCUIT                        FEB 25 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                         No. 10-10112

       Plaintiff - Appellee,                      D.C. No. 3:02-cr-00081-EHC-1-
                                                  PHX
 v.

ELVIRA CHARLEY,                                   MEMORANDUM *

       Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Arizona
                    Earl H. Carroll, Senior District Judge, Presiding

                       Argued and Submitted February 14, 2011
                              San Francisco, California

      Before: SCHROEDER, THOMAS, Circuit Judges, and BENNETT, District
                              Judge.**




        Defendant Elvira Charley appeals her final sentence of three concurrent life

terms for first-degree murder in violation of 18 U.S.C. §§ 1111 and 1153(a) and

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
              The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
three consecutive life terms for possession or use of a firearm in connection with a

crime of violence in violation of 18 U.S.C. § 924(c) and (j). On October 9, 2003,

she had received the same sentence provisionally, owing to mental disease or

defect, and was committed to Federal Medical Center Carswell for care and

treatment, pursuant to 18 U.S.C. § 4244(d). On January 29, 2009, the Warden at

FMC Carswell certified that Charley’s condition had substantially improved and

that she no longer needed “continued custody for care and treatment in a suitable

facility.” The district court imposed final sentence accordingly on March 3, 2010.

Charley is currently serving her final sentence at FMC Carswell.

      Charley appeals her final sentence on the following grounds: (1) the district

court erred by not holding a further § 4244 hearing and by not continuing her

provisional sentence; (2) the district court erred by concluding that it had to impose

three consecutive sentences on her for the firearms counts; (3) the consecutive

sentencing provision of section 924(c) did not apply when she faced greater

mandatory minimum sentences for her second and third firearms counts; (4) the

district court erred by “stacking” the sentences on the firearms counts; (5) the

district court erred by considering the mandatory sentences outlined in 18 U.S.C.

§ 3559(f) when that statute had not been enacted at the time that she committed the




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charged offenses; and (6) the district court failed to consider a downward departure

based on her decreased mental capacity. We affirm.

      1.     The district court did not err by not continuing Charley’s provisional

sentence or by imposing a final sentence without a further § 4244 hearing to

determine her present mental condition. There was simply no authority, under the

governing statute, to hold a hearing or to continue the provisional sentence once

the Warden at FMC Carswell certified that Charley no longer required care or

treatment in such a facility. Section 4244(e) of Title 18 of the United States Code

plainly and unambiguously provides that, when the director of the facility in which

a defendant is hospitalized pursuant to § 4244(d) certifies that the defendant has

recovered from his or her mental disease or defect to such an extent that he or she

is no longer in need of custody for care or treatment in such facility, and the

provisional sentence imposed pursuant to § 4244(d) has not expired, “the court

shall proceed finally to sentencing and may modify the provisional sentence.”

(emphasis added); accord Weber v. U.S. Dist. Ct. for Cent. Dist. of Calif., 9 F.3d

76, 79 (9th Cir. 1993) (holding that once a warden issues a certificate of recovery,

the court must proceed to final sentencing and lacks the authority to hold a

heaering as to whether the provisional sentence should be continued).




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      2.     Charley’s second, third, and fourth claims of error are untenable in

light of the plain language of § 924(c) and (j), our precedent, and the Supreme

Court’s decision in Abbott v. United States, 131 S. Ct. 18 (2010), handed down

after this appeal was briefed. Section 924(j)(1) provides for punishment of death, a

term of years, or life for murder (as defined in 18 U.S.C. § 1111) “in the course of

a violation of subsection (c).” Thus, a life sentence was permissible on each of

Charley’s three convictions for murder in the course of a § 924(c) violation.

Section 924(c)(1)(D)(ii) provides that, “[n]otwithstanding any other provision of

law . . . no term of imprisonment imposed on a person under [§ 924(c)] shall run

concurrently with any other term of imprisonment imposed on that person. . . .” In

United States v. Beltran-Moreno, 556 F.3d 913, 915 (9th Cir. 2009), we held that

§ 924(c)(1)(D)(ii) means that “each independent § 924(c) count in the indictment

imposes a consecutive sentence in addition to any other sentence imposed, either

under § 924(c) or under any other counts for which the defendant has been

convicted.” (emphasis in the original). In Abbott, the Supreme Court held 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.” 131 S. Ct. at 23. Thus,

Charley’s life sentences on her three § 924(c) convictions had to be consecutive to


                                          4
each other and to her sentence on her § 1111 convictions. The district court did not

improperly “stack” the life sentences for Charley’s three § 924(c) convictions,

because Charley was not convicted of violating § 924(c) once in three different

ways, but of violating § 924(c) three times. See id. (explaining that the “except”

clause of § 924(c) means that the defendant is subject to one mandatory minimum

if he possessed, brandished, and discharged a gun, not to “stacked” sentences for

that violation of § 924(c)); see also id. at 30.

      3.     Charley also contends that the district court erred by considering 18

U.S.C. § 3559(f) because that statute was not enacted at the time that she

committed the charged offenses. Section 3559(f), which provides for mandatory

minimum terms of imprisonment for violent crimes against children, including

murder, was not effective until July 27, 2006, well after Charley committed the

charged offenses. Even if it was error for the district court to consider that

provision at Charley’s sentencing, however, the error could not have had any effect

on Charley’s sentence, because we had already held that a conviction for first-

degree murder in violation of 18 U.S.C. § 1111 mandates a minimum sentence of

life imprisonment without possibility of release. United States v. LaFleur, 971

F.2d 200, 209 (9th Cir. 1991).




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      4.     Finally, Charley contends that the district court erred by failing to

consider a downward departure based on her decreased mental capacity. This

contention is also defeated by LaFleur. 971 F.2d at 208 (“[A] defendant convicted

of first degree murder under § 1111(a) must be sentenced to life in prison.”); see

also United States v. Miguel, 338 F.3d 995, 1006 (9th Cir. 2003) (relying on

LaFleur in rejecting contention that a district court should be allowed to depart

downward to a less than life sentence on a § 1111 conviction). Also, Charley’s

reliance on U.S.S.G. § 5K2.13 as authority for a downward departure for

diminished capacity is misplaced. Charley was subject to a statutory mandatory

minimum. Under U.S.S.G. § 5G1.1(b), that mandatory minimum sentence

precluded departure below the statutorily required sentence. LaFleur, 971 F.2d at

208; United States v. Williams, 939 F.2d 721, 726 (9th Cir. 1991).

      AFFIRMED.




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