12-631-cr

United States v. Robles 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2012

(Submitted: February 20, 2013 Decided: March 1, 2013)

Docket No. 12-631-cr

 

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE ROBLES,

Defendant-Appellant.

 Before:

WINTER, CHIN, and DRONEY, Circuit Judges. 

Appeal from a judgment of conviction of the United

States District Court for the Southern District of New York

(Sweet, J.), imposing a sentence principally of thirty-five

years' imprisonment, which included consecutive mandatory

minimum terms of imprisonment of seven and twenty-five years

for brandishing a firearm during two robberies. 

AFFIRMED. 

 

Katherine Polk Failla, Michael D. Maimin,

Assistant United States Attorneys,

for Preet Bharara, United States

Attorney for the Southern District of

New York, New York, New York, for

Appellee.

Scott B. Tulman, Law Offices of Scott B.

Tulman, New York, New York, for

Defendant-Appellant. 
PER CURIAM:

Defendant-appellant Jose Robles appeals from a

judgment of the United States District Court for the Southern

District of New York (Sweet, J.) entered March 29, 2012,

convicting him of conspiring to commit and committing three

Hobbs Act robberies and of brandishing a firearm during two

of the robberies. The district court sentenced Robles

principally to thirty-five years' imprisonment. On appeal,

Robles challenges the district court's determination that it

was required to impose consecutive mandatory minimum terms of

imprisonment of seven and twenty-five years on the gun

counts. We affirm.

BACKGROUND

Robles was convicted of conspiring to commit and

committing three armed robberies in 2005 and 2006 at two

Radio Shack stores in the Bronx, New York, and a gasoline

station in Yonkers, New York. Robles was indicted on six

counts: one count of conspiring to commit a Hobbs Act

robbery in violation of 18 U.S.C. § 1951 (Count One), three

substantive counts of Hobbs Act robbery in violation of 18

U.S.C. §§ 1951-52 (Counts Two to Four), and two counts of

brandishing a firearm during a crime of violence in violation

of 18 U.S.C. § 924(c) (Counts Five and Six). A jury found

him guilty on all counts.

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On February 3, 2012, the district court issued a

sentencing opinion in which it held, inter alia, that it was

required to impose mandatory consecutive minimum sentences of

seven and twenty-five years' imprisonment on Counts Five and

Six, respectively. Opinion at 16, United States v. Robles,

No. 08 Cr. 1114 (S.D.N.Y. Feb. 3, 2012), ECF No. 61. 

Accordingly, the district court sentenced Robles on February

7, 2012 to thirty-five years' imprisonment: three years for

each of the conspiratorial and substantive Hobbs Act robbery

counts, to run concurrently; a mandatory minimum seven-year

term for his first conviction under § 924(c); and a mandatory

minimum twenty-five-year term for his second conviction under

§ 924(c)(1)(C)(i). Pursuant to § 924(c)(1)(D)(ii) -- which

provides that no sentence imposed under § 924(c) shall run

concurrently with any other term of imprisonment -- the

district court ordered the two terms for Counts Five and Six

to run consecutively to each other and to the terms imposed

on Counts One through Four. An amended judgment of

conviction and sentence was entered March 29, 2012. 

This appeal followed. 

DISCUSSION

A. Applicable Law

We review de novo a district court's decision

resolving a question of statutory interpretation. United

States v. Cassesse, 685 F.3d 186, 188 (2d Cir. 2012).

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Section 924(c)(1) of Title 18 of the United States

Code provides in relevant part:

(A) Except 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 . . . 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; . . . 

. . .

(C) In the case of a second or subsequent

conviction under this subsection, the person

shall -- 

(i) be sentenced to a term of imprisonment

of not less than 25 years . . .

(D) Notwithstanding any other provision of law

. . .

(ii) no term of imprisonment imposed on a

person under this subsection shall run

concurrently with any other term of

imprisonment imposed on the person . . . .

(emphasis added). Robles argues that the "except" clause in

subsection (A) applies in this case, and because the twentyfive-year mandatory minimum sentence imposed on Count Six was

"a greater minimum sentence . . . otherwise provided by this

subsection," the district court was not required to impose a

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consecutive mandatory minimum sentence of seven years for

Count Five. 

In Deal v. United States, the defendant committed

six armed bank robberies. 508 U.S. 129, 130 (1993). He was

convicted on six counts of bank robbery and six corresponding

counts of carrying and using a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c). Id. Relying

on an earlier version of § 924(c), the district court

sentenced the defendant to five years on the first § 924(c)

count and to twenty years on each of the five § 924(c)

counts, the terms to run consecutively. Id. at 131. The

Supreme Court held that each of the defendant's "second

through sixth convictions under § 924(c)(1) in this single

proceeding" subjected him to a twenty-year mandatory term

under § 924(c). Id. at 130-33. The Court thus rejected the

defendant's argument that the mandatory consecutive term for

a "second or subsequent conviction" only applied to counts

charged in subsequent proceedings. Id. at 131-32. 

In 1998, Congress amended § 924(c) to add, inter

alia, the "except" clause that now prefaces the mandatory

minimum terms of imprisonment imposed by the statute. See

Abbott v. United States, 131 S. Ct. 18, 24-25 (2010).1

 In

Abbott, the Supreme Court construed the "except" clause as

1 The 1998 amendment also increased the penalty for

repeat § 924(c) convictions from a mandatory term of twenty years

to a mandatory minimum term of twenty-five years. See Abbott v.

United States, 131 S. Ct. 18, 25-26 (2010).

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"instruct[ing] judges to pick the single highest sentence

stipulated for a § 924(c) violation within § 924(c) itself,

and not to stack ten years for discharging a gun on top of

seven for brandishing the same weapon, whenever a defendant

does both." Id. at 30. The Court held, however, that "a

defendant is subject to a mandatory, consecutive sentence for

a § 924(c) conviction, and is not spared from that sentence

by virtue of receiving a higher mandatory minimum on a

different count of conviction." Id. at 23. 

B. Application

While we have previously construed the "except"

clause in different contexts, see, e.g., United States v.

Tejada, 631 F.3d 614, 619 (2d Cir. 2011), we have yet to

address whether the "except" clause exempts a defendant from

consecutive mandatory minimum sentences where he is convicted

of multiple § 924(c) counts in a single judgment.2

 For

reasons to follow, we now hold that the "except" clause does

not exempt a defendant, sentenced on multiple § 924(c)

convictions in a single judgment, from receiving a

consecutive mandatory minimum sentence for each of his 

§ 924(c) convictions. 

First, Deal remains good law despite the fact that

it was decided prior to the 1998 amendment adding the

2 In a footnote in United States v. Cain, 671 F.3d 271,

278 n.2 (2d Cir. 2012), we impliedly endorsed the continued

application of Deal, albeit in a different context. We write to

explicitly affirm that view.

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"except" clause to § 924(c). Robles has not identified, and

we have not found, any authority suggesting that the "except"

clause somehow undermines the holding in Deal that a

defendant sentenced on multiple § 924(c) convictions in a

single judgment faces a mandatory penalty for each of his

convictions under § 924(c). To the contrary, the 1998

amendment expanded the reach of § 924(c) and strengthened its

penalties, see Abbott, 131 S. Ct. at 25, and we, like the

Supreme Court, are "disinclined to say that what Congress

imposed with one hand . . . it withdrew with the other," id.

at 27 (citation and internal quotation marks omitted). 

Furthermore, both the Supreme Court and this Court have

continued to rely on Deal after 1998, albeit for different

grounds. See, e.g., Dorsey v. United States, 132 S. Ct.

2321, 2343 (2012); DePierre v. United States, 131 S. Ct.

2225, 2234 (2011); United States v. Cain, 671 F.3d 271, 278

n.2 (2d Cir. 2012). 

Second, Abbott did not abrogate Deal, but rather,

reinforced its holding. The Abbott Court expressly held that

a defendant subject to a mandatory minimum sentence under 

§ 924(c) "is not spared from that sentence by virtue of

receiving a higher mandatory minimum on a different count of

conviction." 131 S. Ct. at 23 (emphasis added). Rather, the

"except" clause only proscribes multiple penalties under 

§ 924(c) where, for example, a defendant both discharges and

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brandishes the same firearm while committing an offense. Id.

at 30.

Third, although we have not explicitly reached this

question previously, our sister circuits have consistently

upheld sentences imposing consecutive mandatory minimum terms

for multiple § 924(c) convictions in the same proceeding. 

Accord United States v. Major, 676 F.3d 803, 812 (9th Cir.

2012); United States v. Bowers, 638 F.3d 616, 620 (8th Cir.

2011); United States v. Mamalis, No. 11 Cr. 4687, 2012 WL

5975271, at *8 (4th Cir. Nov. 30, 2012) (unpublished

opinion); United States v. Bonner, 469 F. App'x 119, 136 (3d

Cir. 2012) (unpublished opinion); Haynes v. Sherrod, 476 F.

App'x 27, 27-28 (5th Cir. 2012) (unpublished opinion); United

States v. Hughes, 410 F. App'x 285, 287 (11th Cir. 2011)

(unpublished opinion). We agree with our sister circuits. 

Accordingly, we hold that Robles was properly

sentenced to a mandatory consecutive seven-year term for his

first § 924(c) conviction on Count Five and a mandatory

consecutive twenty-five-year term for his second § 924(c)

conviction on Count Six.3

3 Robles also challenges the sufficiency of the evidence

for his conviction on Count Five, arguing that the government

failed to establish beyond a reasonable doubt that the weapon he

used was a "firearm" within the meaning of 18 U.S.C. § 921(a)(3).

This argument has no merit. The government presented three

witnesses who testified to the jury about Robles showing them a

gun in his waistband during the robbery. As the jury credited

their testimony and resolved any purported inconsistency among

them, "we must defer to the jury's resolution of the weight of

the evidence and the credibility of the witnesses." United

States v. O'Connor, 650 F.3d 839, 855 (2d Cir. 2011) (citation

and internal quotation marks omitted).

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CONCLUSION

For the foregoing reasons, the judgment of the

district court is AFFIRMED.

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