                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0066p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       No. 08-6027
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 LEE ALMANY,
                                                  -
                                                 N
                    Appeal from the United States District Court
               for the Eastern District of Tennessee at Chattanooga.
             No. 08-00001-001—Curtis L. Collier, Chief District Judge.
                              Submitted: December 18, 2009
                           Decided and Filed: March 10, 2010
               Before: MERRITT, MARTIN, and COLE, Circuit Judges.

                                   _________________

                                        COUNSEL
ON BRIEF: Gary W. Lanker, LAW OFFICE OF GARY W. LANKER, Memphis,
Tennessee, for Appellant. M. Neil Smith, ASSISTANT UNITED STATES ATTORNEY,
Greeneville, Tennessee, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        MERRITT, Circuit Judge. On March 13, 2008, pursuant to a plea agreement, Lee
Almany entered guilty pleas to the following charges: conspiracy to distribute and possession
with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 841(b)(1)(A) (“drug statute”); possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“firearm statute”); and having assets that
were subject to forfeiture. The District Court accepted his plea and sentenced Almany to
mandatory minimums of ten years under the drug statute and five years under the firearm



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No. 08-6027              United States v. Almany                                              Page 2


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statute, with the terms of imprisonment to run consecutively.              The question before this
panel is whether the plain language of the firearm statute forbids the imposition of its
mandatory minimum sentence when a defendant is already subject to another, greater
mandatory minimum sentence under any other provision of law.

                                  I. PROCEDURAL HISTORY

           Following his plea and sentencing, Almany timely filed a pro se notice of appeal.
On appeal, Almany’s counsel filed a motion to withdraw as appellate counsel in
accordance with Anders v. California, 386 U.S. 738 (1967). In his motion and
accompanying Anders brief, Almany’s counsel claimed there are no apparent grounds
for challenging Almany’s conviction and sentence. The government agreed with
counsel’s finding by letter, but asked if this Court found a non-frivolous issue in its
independent review to have the opportunity to brief the issue. On June 3, 2009, Almany
himself submitted a pro se brief citing one issue for appeal. Almany raises the Second
Circuit case, United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), and claims that his
sentence violates the plain language of the firearm statute as explained in the Whitley
case. Both the government and Almany’s counsel have now filed further letter briefs.
Both disagree with Almany’s position and the Whitley case that the consecutive
mandatory minimum sentences violate the clear language of § 924(c)(1)(A).

                                           II. ANALYSIS

                                    A. Waiver of Right to Appeal

           Almany’s plea agreement provided that he waive his right to a direct appeal, but
the waiver was not discussed in open court when the District Court accepted Almany’s
guilty plea. Although a defendant in a criminal case may waive the right to appeal, the
waiver must be knowing and voluntary. United States v. Fleming, 239 F.3d 491, 496
(6th Cir. 2005). We review de novo the question of whether a defendant waived his
right to appeal his sentence in a valid plea agreement. United States v. Murdock, 398


           1
               In addition to his term of imprisonment, Almany was sentenced to five years’ supervised
release.
No. 08-6027         United States v. Almany                                          Page 3


F.3d 491, 496 (6th Cir. 2005). Rule 11 of the Federal Rules of Criminal Procedure
requires that the district court determine that the defendant understands the terms of the
plea agreement when waiving the right to appeal. Violations of Rule 11 are reviewed
for plain error if the defendant did not object before the District Court. Id. This Court
has held that it is plain error for the District Court to fail to inquire into a defendant’s
understanding of the appellate waiver provision of his plea agreement, as required by
Rule 11(b)(1)(N). Id. at 499.

         Here, the District Court asked Almany at his rearraignment hearing, “[d]o you
also understand that under some circumstances you or the government may have the
right to appeal any sentence that I impose?” Almany indicated that he understood. This
question does not alert Almany that the plea agreement requires him to waive his right
to appeal, nor does it ascertain that Almany understood the appellate waiver provision
of the plea agreement. In fact, the Court’s comments inform Almany that he has the
right to appeal. Further, at the sentencing hearing, the Court explicitly informed Almany
that he had a right to appeal his sentence. Therefore, the District Court committed plain
error by failing to probe Almany’s understanding of the appellate waiver provision of
his plea agreement, and therefore, the waiver provision is unenforceable against Almany.

                  B. Proper Interpretation of 18 U.S.C. § 924(c)(1)(A)

         This Court, in its independent review of this case pursuant to Penson v. Ohio, 488
U.S. 75 (1988), must determine whether Almany’s counsel is incorrect when asserting
that there are no legitimate issues for appeal. In his pro se filing, Almany claims that his
sentence violates the language of the firearm statute and points to a recent Second
Circuit opinion for support. See Whitley, 529 F.3d 150. The plain language of the
firearm statute forbids a court from sentencing a criminal defendant under both the
mandatory minimum sentence found in the firearm statute and another, greater
mandatory minimum sentence in any other provision of law. The statute in question
reads:

         Except to the extent that a greater minimum sentence is otherwise
         provided by this subsection or by any other provision of law, any person
No. 08-6027        United States v. Almany                                          Page 4


       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).

       Two Sixth Circuit cases have previously mentioned the impact of this statutory
language. See United States v. Baldwin, 41 F. App’x 713 (6th Cir. 2002); United States
v. Jolivette, 257 F.3d 581 (6th Cir. 2001). But Jolivette and Baldwin are not in point or
instructive. Both of those cases involved the imposition of a five-year mandatory
minimum sentence under the firearm statute in conjunction with another sentence
imposed under the Sentencing Guidelines. Hence, neither of the defendants were subject
to two mandatory minimum sentences. See Whitley, 529 F.3d at 157. (“The defendants
in Jolivette and Baldwin were convicted of violating bank robbery statutes that did not
provide any minimum sentences.”); see also 18 U.S.C. § 2113(a) (providing no
mandatory minimum sentence for the crime of armed bank robbery) and 18 U.S.C.
§ 2113(d) (same). Here, Almany was sentenced to both a mandatory minimum of five
years for possession of a firearm in furtherance of a drug trafficking crime and a
mandatory minimum of ten years for conspiracy to distribute and possession with intent
to distribute. Because a guidelines sentence is obviously not the same as a mandatory
minimum sentence, any discussion in Jolivette and Baldwin about the use of a greater
mandatory minimum did not apply to those cases and was obiter dicta.

       As mentioned above, Almany argues that this Court should evaluate his
sentencing in light of the Second Circuit’s holding that the “except” clause of the firearm
statute exempts a criminal defendant from the mandatory minimum if the defendant is
subject to another, greater mandatory minimum sentence. See Whitley, 529 F.3d 150.
No. 08-6027         United States v. Almany                                         Page 5


The decision and reasoning of the Second Circuit are persuasive. That Court addressed
the text, design and purpose of the statute in reaching its decision. Id. at 153. The most
compelling argument made by the Second Circuit is the literal interpretation of the
language of the statute. As that Court noted, “we have repeatedly been instructed to give
statutes a literal reading and apply the plain meaning of the words that Congress used.”
Whitley, 529 F.3d at 156 (collecting cases). Reading the firearm statute literally, the
Second Circuit held that the statutory language plainly forbade the imposition of the
mandatory minimum contained in the firearm statute in conjunction with another, greater
mandatory minimum sentence. The Second Circuit’s opinion in Whitley is the correct
interpretation of the firearm statute.

       Other Circuits have narrowed the “except” clause to apply only to other firearms
statutes. See United States v. Collins, 205 F. App’x 196, 198 (5th Cir. 2006); United
States v. Alaniz, 235 F.3d 386, 389 (8th Cir. 2000). But this interpretation disregards the
“by any other provision of law” language in the statute. The language of the firearm
statute does not qualify its prohibition against greater mandatory minimums. Instead,
the “except” clause encompasses greater mandatory minimum sentences from both the
firearm statute and “any other provision of law.”

       In sum, the District Court erred by sentencing Almany to both a five-year
mandatory minimum sentence under the firearm statute and a ten-year mandatory
minimum sentence under the drug statute. This case must be remanded for resentencing,
and Almany remains subject to the mandatory minimum under the drug statute.

       Accordingly, it is so ordered.
