* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20250

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MICHELLE KYLES

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CR-457-1

Before KING, DENNIS, and OWEN, Circuit Judges. 

PER CURIAM:*

Michelle Kyles pleaded guilty to possession of a firearm by a felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); possession with intent

to distribute 50 grams or more of a substance containing cocaine base, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count 2); possession with intent

to distribute less than 50 kilograms of marijuana, in violation of § 841(a)(1) and

(b)(1)(D) (Count 3); and possession of a firearm in furtherance of a drug

trafficking crime, in violation of § 924(c)(1)(A) (Count 4). The district court

United States Court of Appeals

Fifth Circuit

F I L E D

December 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-20250

2

sentenced Kyles to concurrent imprisonment terms of 120 months on Count 1,

240 months on Count 2, and 120 months on Count 3. The district court

sentenced Kyles to a consecutive imprisonment term of 60 months for her

conviction on Count 4, possession of a firearm in furtherance of a drug

trafficking crime. The sentences on Counts 2 and 4 were imposed pursuant to

the statutorily mandated minimum sentences on those counts. 

Kyles argues that the district court committed plain error in imposing a

consecutive five-year sentence pursuant to § 924(c)(1)(A)(i), which sets forth a

five-year statutory minimum sentence for possession of a firearm in furtherance

of a drug trafficking crime. Her argument relies on the exception provided in the

opening clause of § 924(c)(1)(A). Section 924(c)(1)(A) provides: “Except to the

extentthat a greater minimum sentence is otherwise provided by this subsection

or by any other provision of law,” any person who possesses a firearm in

furtherance of a drug trafficking crime “shall, in addition to the punishment

provided for such . . . drug trafficking crime” be subject to one of the mandatory

minimum prison terms provided in § 924(c)(1)(A)(i)-(iii). According to Kyles, the

opening clause means that, if a “greater minimum sentence” is required for

another conviction,then the mandatory minimum sentence under § 924(c)(1)(A)

does not apply. Kyles argues that the five-year minimum sentence under

§ 924(c)(1)(A)(i) is inapplicable to her because § 841(b)(1)(A)(iii) subjects her to

a 20-year minimum sentence on her cocaine base offense, Count 2.

Because Kyles did not object in the district court to the imposition of the

five-year consecutive sentence, plain error review applies. See United States v.

Guidry, 456 F.3d 493, 505 (5th Cir. 2006). To show plain error, Kyles must show

an error that is clear or obvious and that affects her substantial rights. See

United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). If Kyles makes such

a showing, this court has the discretion to correct the error but only if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See id.
No. 07-20250

1We only assume arguendo that the district court erred and do not consider the

appropriate interpretation of § 924(c)(1)(A). 

3

In support of her argument, Kyles directs our attention to the Second

Circuit’s decision in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), in

which the court generally agreed with the interpretation of § 924(c)(1)(A) that

Kyles advances here. But, as Kyles concedes, at least three circuits have

reached decisions that are contrary to Whitley’s interpretation ofthe statute and

her argument on appeal. See United States v. Jolivette, 257 F.3d 581, 586-87

(6th Cir. 2001); United States v. Studifin, 240 F.3d 415, 423-24 (4th Cir. 2001);

and United States v. Alaniz, 235 F.3d 386, 387-89 (8th Cir. 2000). Moreover, this

circuit has agreed with the Fourth, Sixth, and Eighth Circuits’ interpretation,

although only in an unpublished decision. See United States v. Collins, 205 F.

App’x 196, 198 (5th Cir. 2006) (per curiam). 

In light of the disagreement among circuits and the weight of authority

opposing Kyles’ argument (including an unpublished decision from this court),

we conclude that the district court’s error, if any, was not clear or obvious.1 See

United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007). Accordingly, the

sentence imposed by the district court is affirmed. 

AFFIRMED.