                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 12, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-30009
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DANIEL WAYNE COLLINS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 5:04-CR-50170-4
                       --------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Daniel Wayne Collins pleaded guilty to a bill of information

charging him with conspiracy to possess with intent to distribute

50 grams or more of methamphetamine or 500 grams or more of a

mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 846, and possession

of a firearm in furtherance of a drug-trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A)(i).   The district court

sentenced Collins to consecutive prison terms of 168 months and


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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                                 -2-

60 months and to concurrent supervised-release terms of three

years.

     Collins contends that the district court erred in concluding

that § 924(c)(1)(A), the sentencing provision for his firearm

offense, required the imposition of a five-year mandatory minimum

prison term when he was subject to a greater mandatory minimum

prison term for the predicate drug-trafficking offense.     This

argument is based on the initial “exception” clause of

§ 924(c)(1)(A), which states that, “[e]xcept to the extent that a

greater minimum sentence is otherwise provided by this subsection

or by any other provision of law,” a person who uses or carries a

firearm, or possesses a firearm in furtherance of, a drug-

trafficking offense or crime of violence, is subject to various

mandatory minimum prison terms.

     “The appropriate starting point when interpreting any

statute is its plain meaning,” which may be ascertained by both

the “particular statutory language at issue, as well as the

language and design of the statute as a whole.”      United States v.

Elrawy, 448 F.3d 309, 315 (5th Cir. 2006) (citations and internal

quotation marks omitted).   Three sister circuits have held that

the “exception” clause of § 924(c)(1)(A) does not permit a

district court to consider a sentence below the mandatory minimum

simply because a defendant’s predicate conviction carries a

mandatory minimum sentence greater than the mandatory minimum

sentence that applies under § 924(c).      See United States v.
                            No. 06-30009
                                 -3-

Alaniz, 235 F.3d 386, 387-89 (8th Cir. 2000); see also United

States v. Studifin, 240 F.3d 415, 421-23 (4th Cir. 2001)

(adopting analysis of Alaniz); United States v. Jolivette, 257

F.3d 581, 586-87 (6th Cir. 2001) (same).   With respect to §

924(c)(1)(A)’s exception for a “greater minimum sentence”

prescribed by “any other provision of law,” the Fourth Circuit

reasoned that such language “provides a safety valve that would

preserve the applicability of any other provisions that could

impose an even greater mandatory minimum consecutive sentence for

a violation of § 924(c).”   Studifin, 240 F.3d at 423.   The

language was interpreted as “simply reserving the possibility

that another statute or provision might impose a greater minimum

consecutive sentencing scheme for a § 924(c) violation, and not

as negating the possibility of consecutive sentencing in”

circumstances in which a defendant faces a greater mandatory

minimum sentence for a predicate drug-trafficking or crime-of-

violence offense.   Id.   The court in Alaniz also pointed out that

an interpretation like Collins’s would be “illogical” because it

“would punish those guilty of severe [predicate] offenses more

leniently, and those guilty of less severe sentences more

stringently.”   Alaniz, 235 F.3d at 389.

     We find the rationale of these decisions convincing.

Although the exception for a “greater minimum sentence . . .

otherwise provided . . . by any other provision of law” is not a

model of clarity, the rest of the sentence in which it appears
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                                -4-

refers to a person who has either used or carried a firearm

during and in relation to, or possessed a firearm in furtherance

of, a crime of violence or drug-trafficking crime.   In construing

the “exception” clause in the context of the “language and design

of the statute as whole,” see Elrawy, 448 F.3d at 315, it 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 in furtherance of a crime of

violence or drug-trafficking crime.   Accordingly, we adopt the

analysis of Alaniz, Studifin, and Jolivette and hold that

§ 924(c)(1)(A) does not permit a sentence below five years for

that offense in the circumstances of Collins’s case.

     Collins contends that the district court abused its

discretion in denying his request for funds to hire mitigation

investigators for sentencing purposes, pursuant to 18 U.S.C.

§ 3006A(e)(1).   He maintains that further investigation would

likely to have led to mitigating evidence that would have

warranted a sentence below the guideline range, especially with

respect to head trauma he had suffered as a child.   We review the

denial of a request for appointment of an expert or specialist

under § 3006A(e)(1) for abuse of discretion.   United States v.

Hardin, 437 F.3d 463, 468 (5th Cir. 2006).   Because most of the

personal factors cited by Collins were discussed in his

Presentence Report, and because Collins has not demonstrated that

the failure to grant funds for an investigator prejudiced him,
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                                -5-

see, e.g., United States v. Bertling, 370 F.3d 818, 820 (8th Cir.

2004), Collins has not shown that the district court abused its

discretion.

     Collins has not shown clear error with respect to the

district court’s refusal to grant a two-level reduction based on

Collins’s alleged “minor” offense role under U.S.S.G. § 3B1.2(b).

See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir.),

cert. denied, 126 S. Ct. 268 (2005).   Although Collins’s

coconspirators may have been involved with greater quantities of

methamphetamine than he was, his possession of four ounces of

methamphetamine, as well as of a firearm and other drugs,

reflected that he was not “peripheral” to the advancement of the

conspiracy.   See id. at 204.

     Collins contends that the sentence was “unreasonable”

because the district court should have considered a prison term

of less than five years for the § 924(c)(1)(A)(i) offense

(because of the “exception” clause in § 924(c)(1)(A)) and because

the denial of funds for a mitigation investigator prevented the

district court from giving due consideration to mitigating

evidence that would have warranted a sentence outside the

guideline range.   Because those two contentions are meritless,

Collins has not rebutted the presumption that the sentence, which

was within the guideline range, was reasonable.   See United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

     For the foregoing reasons, the convictions and sentences are

AFFIRMED.
