Opinion
No. 10-12845 Non-Argument Calendar.
December 8, 2010.
Laura Thomas Rivero, Evelyn Baltodano-Sheehan, Dawn Bowen, Assistant U.S. Attorney, Wifredo A. Ferrer, U.S. Attorney, Sean Thomas McLaughlin, Christopher Parente, Anne R. Schultz, U.S. Attorney's Office, Miami, FL, for Plaintiff-Appellee.
Deric Zacca, Cabrera and Zacca, L.L.P., Miramar, FL, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:09-cr-20964-PAS-2.
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
Jesus Barrera-Avila appeals the 322-month total sentence he received following his conviction for conspiracy to interfere with commerce by threats or violence by robbery, 18 U.S.C. § 1951(a), conspiracy to possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 846, and possession of a firearm in furtherance of a crime of violence or a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). On appeal, Barrera-Avila argues that the district court erred by applying the five-year consecutive mandatory minimum sentence under § 924(c) in addition to the ten-year mandatory minimum sentence he received for the § 846 offense.
We review questions of statutory interpretation de novo. United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009), cert. denied, ___ U.S. ____, 131 S.Ct. 633, 178 L.Ed.2d 509 (2010). Section 924(c) provides that
[e]xcept 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 . . ., 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 be sentenced to a term of imprisonment of not less than 5 years.
18 U.S.C. § 924(c)(1)(A). In Segarra, we rejected the argument that the five-year consecutive mandatory minimum could not be applied when the defendant faced a greater mandatory sentence for a drug offense. 582 F.3d at 1273.
The Supreme Court recently affirmed our interpretation of the "except" clause. See Abbott v. United States, 562 U.S. ___, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010).
Because Segarra forecloses Barrera-Avila's argument, the district court properly applied § 924(c)'s five-year consecutive mandatory minimum sentence.