United States v. Tony Terrell Moses, Sr. , 380 F. App'x 844 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15032 ELEVENTH CIRCUIT
MAY 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00235-CR-T-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY TERRELL MOSES, SR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 26, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Tony Terrell Moses, Sr., appeals from his sentences imposed for robbery of
a bank and robbery of a credit union, in violation of 18 U.S.C. § 2113(a) (“Counts
1 and 3”), and brandishing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii) (“Counts 2 and 4”). On appeal, Moses
argues that his 25-year statutory mandatory consecutive sentence as to Count 4,
which was imposed pursuant to § 924(c)(1)(C)(i), is unreasonable and
unconstitutional. He argues that Congress did not intend that § 924(c)(1)(C)(i)’s
enhanced-penalty provision should apply where both of the relevant § 924(c)
offenses are charged in a single indictment. In addition, Moses asserts that,
because § 924(c)(1)(C)(i)’s language is ambiguous in this respect, the rule of lenity
requires that this provision should be interpreted in his favor. Moses further
contends that the 25-year sentence as to Count 4 violates the Fifth Amendment’s
Due Process Clause, although he fails to explain how his sentence offends due
process. For the reasons set forth below, we affirm.
I.
A federal grand jury charged Moses with the following: (1) robbery of a
credit union, in violation of 18 U.S.C. § 2113(a) (“Count 1”); (2) using, carrying,
and possessing a firearm in furtherance of the crime of violence set forth in Count
1, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (“Count 2”); (3) robbery of a bank,
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in violation of 18 U.S.C. § 2113(a) (“Count 3”); and (4) using, carrying, and
possessing a firearm in furtherance of the crime of violence set forth in Count 3, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). The indictment specified that the
offenses charged in Counts 1 and 2 occurred on August 13, 2008, and that the
offenses charged in Counts 3 and 4 occurred on September 30, 2008. Moses pled
guilty to all four counts of the indictment without the benefit of a written plea
agreement.
In preparing the presentence investigation report (“PSI”), the probation
officer determined that the total combined offense level for Counts 1 and 3 was 25.
Moses’s offense level of 25, when combined with his criminal history category of
VI, produced a guideline range of 120 to 137 months’ imprisonment. The
probation officer noted that, under § 924(c)(1)(A)(ii), Moses was subject to a
statutory mandatory minimum term of seven years’ imprisonment as to Count 2.
Under § 924(c)(1)(C)(i), Moses was subject to a statutory mandatory minimum
term of 25 years’ imprisonment as to Count 4, because this constituted Moses’s
second, or subsequent, conviction under § 924(c). The officer further noted that
§ 924(c)(1)(D)(ii) required that Moses’s sentences as to Counts 2 and 4 run
consecutively to any other terms of imprisonment imposed. This effectively
caused Moses’s guideline range to be 494 to 521 months’ imprisonment.
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At sentencing, the parties agreed that the PSI accurately set forth the
applicable guideline range and statutory mandatory sentences. In support of his
request for a downward variance for Counts 1 and 3, Moses emphasized that law
enforcement officers had learned that he committed the credit union robbery only
because he confessed to the crime and provided them with his full cooperation.
The district court sentenced Moses to a total term of 444 months’ imprisonment,
stating that it had arrived at this sentence after considering the advisory guideline
range, the statutory mandatory sentences, and the sentencing factors set forth in 18
U.S.C. § 3553(a). The court specified that it sentenced Moses to concurrent terms
of 60 months’ imprisonment as to Counts 1 and 3. The court explained that it had
granted this downward variance based on Moses’s cooperation with law
enforcement officials and the severity of his statutory mandatory sentences. In
addition, the court specified that, pursuant to the applicable statutes, it sentenced
Moses to a consecutive term of seven years’ imprisonment as to Count 2, and
another consecutive term of 25 years’ imprisonment as to Count 4.
After pronouncing the sentence, the court asked the parties if there were any
objections to its sentence or the manner in which it was imposed, and Moses
objected to the 25-year consecutive sentence as to Count 4. He asserted that this
sentence was unreasonable and unconstitutional, and further argued that Congress
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did not intend that a defendant should receive the 25-year mandatory sentence
where the relevant § 924(c) offenses were alleged in a single indictment. Moses
acknowledged that his argument was foreclosed by precedent. The court imposed
the sentence as announced, thus overruling Moses’s objection.
II.
We review de novo a constitutional challenge to a defendant’s sentence.
United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005). In addition, “[t]he
interpretation of a statute is a question of law subject to de novo review.” United
States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
Under § 924(c), any person who brandishes a firearm in furtherance of a
crime of violence is subject to a statutory mandatory minimum sentence of seven
years’ imprisonment, which must run consecutively to any other term of
imprisonment imposed. 18 U.S.C. § 924(c)(1)(A)(ii) and (D)(ii). Under § 924(c)’s
enhanced-penalty provision, an individual who sustains “ a second or subsequent
conviction under this subsection . . . shall be sentenced to a term of imprisonment
of not less than 25 years,” which also must run consecutively to any other term of
imprisonment imposed. 18 U.S.C. § 924(c)(1)(C)(i) and (D)(ii).
We have held that § 924(c)’s enhanced-penalty provision applies where the
relevant § 924(c) offenses are charged in a single indictment. United States v.
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Rawlings, 821 F.2d 1543. 1546-47 (11th Cir. 1987). In so holding, we also held
that § 924(c)’s “second or subsequent” language is not ambiguous, and rejected the
defendant’s argument that the enhanced-penalty clause does not apply unless a
previous § 924(c) conviction already has become final. Id. at 1546. Similarly, in
Deal v. United States, the Supreme Court affirmed the defendant’s sentence, which
included a five-year consecutive sentence and five 20-year consecutive sentences
for the defendant’s six § 924(c) convictions, all of which were charged in a single
indictment. 508 U.S. 129, 130-31, 134-37, 113 S.Ct. 1993, 1996-99, 124 L.Ed.2d
44 (1993). The Supreme Court expressly rejected the defendant’s argument that
§ 924(c)’s “second or subsequent” language signifies that the enhanced-penalty
provision applies only where a previous § 924(c) conviction has become final. Id.
at 134-35, 113 S.Ct. at 1997-98. In addition, the Supreme Court also held that
§ 924(c)’s enhanced-penalty clause is not ambiguous, and thus does not necessitate
the operation of the rule of lenity. Id. at 135-36, 113 S.Ct. at 1998.
We have also rejected a defendant’s argument that § 924(c)’s mandatory
sentencing provisions violate due process. United States v. Hamblin, 911 F.2d
551, 555-56 (11th Cir. 1990). Under our prior precedent rule, we are “bound to
follow a prior binding precedent unless and until it is overruled by this court en
banc or by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235,
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1236 (11th Cir. 2008).
For the reasons set forth above, Deal and Rawlings foreclose Moses’s
argument that the enhanced-penalty clause set forth in § 924(c)(1)(C)(i) does not
apply if both the initial and “subsequent” § 924(c) offenses were charged in a
single indictment. These decisions likewise preclude his argument that
§ 924(c)(1)(C)(i)’s language is ambiguous, thus requiring the operation of the rule
of lenity. We are bound to follow this precedent. Finally, to the extent that Moses
can be said to have adequately raised a due process argument, this argument lacks
merit in light of our previous holding that § 924(c)’s mandatory sentencing
provisions do not offend due process.
AFFIRMED.
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