Revised September 27, 2000

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-31357

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

PHILLIP K. SIAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

September 8, 2000

Before DUHÉ, EMILIO M. GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Phillip K. Sias seek s to vacate his sentence. Having

concluded a complete review of the record and for the reasons set

forth below, we find no error and, therefore, affirm.

I. BACKGROUND

While committing the armed robbery of a United States Post

Office, Sias brandished a .38 caliber revolver, threatened to kill

a postal employee, and took approximately $140 in ca sh, several1 We note that in the criminal complaint originally filed

against Sias, in the plea agreement, and in the stipulated factual

basis for the guilty plea, reference is made to Sias’s brandishing

of a firearm sufficient to make applicable the seven-year minimum

mandatory sentence for brandishing a firearm during the commission

of a crime of violence found in § 924(c)(1)(A)(ii).

2 postal money orders, and a money order imprinting device. He was

arrested and indicted on one count of robbery of a postal facility

in violation of 18 U.S.C. § 2114(a), and on one count of using and

carrying a firearm during the commission of a violent crime in

violation of 18 U.S.C. § 924(c)(1)(A)(ii). Thereafter, Sias

entered into a plea and cooperation agreement with the government

pursuant to which he entered a guilty plea to Count II of the

indictment charging him with the use and carrying of a firearm

during the commission of a violent cr ime. 1 Sias agreed to

cooperate with the government in exchange for a recommendation that

he be sentenced at the lower end of any Guidelines sentencing

range. The robbery count was dismissed upon Sias’s entry of his

guilty plea on the firearms count.

As part of his plea agreement, Sias executed an “Affidavit of

Understanding of Maximum Penalty and Constitutional Rights.” This

agreement, as well as the underlying plea and cooperation

agreement, and the district cou rt’s questioning of Sias prior to

a cceptance of his guilty plea, all indicated that the maximum

penalty applicable under § 924(c)(1)(A)(ii) was life imprisonment.

Additio nally, the Presentence Report (“PSR”) indicated that the

base of fense level specified by the applicable statute carried a3

sentence of seven years to life imprisonment. Sias did not object

to the PSR, and at sentencing, the district court adopted the PSR

as its finding of facts.

At the sentencing hear ing, the government recommended a

sentence at the low end of the Guidelines range, subjec t to any

applicable mandatory minimum sentence. Sias made a statement

expressing his remorse for his crime and requesting leniency from

the court. The postal employee robbery victim was permitted to

make a statement at the sentencing hearing, and she described the

robbery, Sias’s threats to her life made during the robbery, and

the impact the robbery had on her life.

The district court held that U.S.S.G. § 2K2.4A applied to

Sias’s conviction and that section provides that th e term of

imprisonment applicable to his conviction is that required by the

statute of conviction, that is, 18 U.S.C. § 924(c)(1)(A)(ii).

Using a c riminal history category of one, and the applicable

Guidelines range under the statute of seven years to life

imprisonment, the district court sentenced Sias to a ten-year term

of imprisonment, to be followed by a five-year term of supervised

release. Sias was also ordered to pay $1,348.58 in restitution and

was ass essed the mandatory $100 special monetary assessment. In

sentencing Sias, the district court stated that it found “no reason

to depart from the sentence called for by the application of the

Guidelines . . . .”

Sias has now timely appealed the sentence enter ed by the4

district court, arguing that the district court erred in

interpreting 18 U.S.C. § 924(c)(1)(A)(ii) as providing for a

sentence of not less than seven years and up to life imprisonment.

Sias argues that any sentence in excess of seven years is not

authorized by the statute.

II. DISCUSSION

Ordinarily, we review a district cou rt's application of the

Sentencing Guidelines de novo. S ee United States v. Phillips

, 210

F.3d 345, 351 (5th Cir. 2000); see also United States v. Lankford

,

196 F.3d 563, 578 (5th Cir. 1999) (court of appeals reviews

district court’s construction of a statute de novo), cert. denied

,

120 S. Ct. 1984 (2000). However, since this issue was not

presented to the trial court, it must be deemed waived unless the

lower court's action constituted plain error. S ee United States v.

Mann

, 161 F.3d 840, 867 n.91 (5th Cir. 1998), c ert. denied

, 119

S. Ct. 1766 (1999); see also Fed. R. Crim. P. 52(b) (allowing for

notice of plain errors affecting substantial rights which were not

presented to the trial court). If the error complained of for the

first time on appeal is plain and affected substantial rights, this

Court may provide relief. S ee United States v. Gaudin

, 115 S. Ct.

2310, 2322 (1995) (stating that if there is a forfeited error,

which is plain, and which affects substantial rights, the decision

to correct that forfeited error is in the sound discretion of the5

courts of Appeals). And under this standard, we should not

exercise our discretion to correct a forfeited error unless the

error “seriously affects the fairness, integrity or public

reputation of judicial proceed ings.” I d. (internal quotations

omitted). However, because a sentence which exceeds the statutory

m aximum is an illegal sentence and therefore constitutes plai n

error, our review of the issue presented in this appeal will be de

novo. See Lankford , 196 F.3d at 563.

The issue presented in this appeal, that is, whether a

sentence imposed pursuant to 18 U.S.C. § 924(c) carries a maximum

term of life imprisonment or whether a sentence imposed thereunder

must be limited to a seven-ye ar term of imprisonment has not yet

been directly addressed by any of our prior decisions.

We begin our analysis by noting that the prior version of 18

U.S.C. § 924(c) explicitly called for defendants convicted

thereunder to be sentenced to a specifically stated mandatory term

of imprisonment. The version of this statute applicable to Sias’s

conviction was amended to provide for mandatory minimum sentences,

thus implying that the only term of imprisonment “mandated” by

§ 924(c) was the minimum or the floor, not the floor and ceiling as

the prior version of the statute provided. By implication,

Congress left open the ceiling of sentences imposed under § 924(c).

Sias argues that § 924(c)(1)(A)(ii) provides for a sentence of

seven years in addition to the sentence imposed for the underlying6

crime, and since his underlying offense was dismissed, he should

only have been sentenced to the seven-year term of imprisonment in

§924(c)(1)( A)(ii). He contends that only seven years is

“required.” We agree with Sias to the extent that

§ 924(c)( 1)(A)(ii) “requires” that a defendant be sentenced to

seven years, but we disagree with him that the sentencing judge is

not “permitted” to impose a sentence greater than seven years. The

language selected by Congress when it stated “no less than” seven

years would be superfluous if Congress intended for district courts

not to impose sentences greater than the mandatory minimum sevenyear term. If the language of the now-applicable version of

§ 924 (c) had remained “shall be sentenced to a term of seven

years,” without the “no less than” minimum qualifier, we would be

more inclined to agree with Sias that the district court was not

authorized to impose a sentence greater than seven years. But as

the statute currently re ads, Congress has implicitly authorized

dist rict courts to impose sentences under § 924(c)(1)(A)(ii) in

excess of seven years and up to a maximum of life imprisonment.

Our conclusion today is supported by our prior holdings with

respect to the identical language found in 18 U.S.C. § 924(e),

which provides for the imposition of a mandatory term of

imprisonment of “not less than fifteen years” if a defendant was

convicted of a violation of 18 U.S.C. § 922(g) and had three prior

convi ctions for violent felonies or serious drug offenses. With

respect to § 924(e), we have held that in the absen ce of a7

statutory maximum penalty, the maximum penalty when a term of not

less than a certain number of years is provided, mea ns that the

maximum is life imprisonment. S ee United States v. Guerrero

, 5

F.3d 868, 873-74 & n.12 (5th Cir. 1993); United States v.

Carpenter

, 963 F.2d 736, 742 (5th Cir. 1992); see also United

States v. Brame

, 997 F.2d 1426, 1428 (11th C ir. 1993)(collecting

cases fro m Second, Third, Fourth, Fifth, Seventh, and Tenth

Circuits).

Sias has failed to provide us with any authority or

justifications for announcing a different rule with respect to the

“not less than seven years” minimum mandatory provisions of

§ 924(c)(1)(A)(ii) than we have previously announced with respect

to the “not less than fifteen years” minimum mandatory provisions

of § 924(e). Additionally, Sias has failed to present any argument

that the ten-year term of imprisonment imposed by the district

court was unreasonable, and we, therefore, need not addr ess the

reasonableness of such a sentence. S ee Yohey v. Collins

, 985 F.2d

222, 224-25 (5th Cir. 1993). In our view, Congress specifically

intended to leave open the maximum penalty to be imposed for

violation s of § 924(c)(1)(A)(ii), and the “no less than seven

years” reference in that statute is designed to serve as the floor,

not the ceiling, for sentences imposed thereunder.

III. CONCLUSION8

We AFFIRM the sentence of Phillip K. Sias.

AFFIRMED

.