UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4309
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD ADRIAN WHEELER, a/k/a Bay-Bay,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00363-RJC-3)
Submitted: April 29, 2009 Decided: May 21, 2009
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reggie E. McKnight, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Adrian Wheeler pled guilty, pursuant to a plea
agreement, to conspiracy to possess with the intent to
distribute cocaine, cocaine base, and marijuana, in violation of
21 U.S.C. § 846 (2006) (Count 1); possession of a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2006) (Count 6); and possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006)
(Count 7). He received a total sentence of 180 months’
imprisonment, comprised of 120 months’ imprisonment for Count 1,
sixty months’ imprisonment for Count 6, to be served consecutive
to Count 1, and 120 months’ imprisonment for Count 7, to be
served concurrently with Count 1. Wheeler’s appellate counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal
but arguing that the district court incorrectly applied 18
U.S.C. § 924(c)(1)(A) to sentence Wheeler to a consecutive sixty
month sentence on Count 6, because Wheeler was already subject
to the higher 120 month mandatory minimum sentence pursuant to
21 U.S.C. § 841(a)(1), (b)(1)(B) for Count 1. Wheeler filed a
pro se supplemental brief, reiterating the contention raised in
the Anders brief. We affirm.
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Because Wheeler did not object during sentencing, our
review is for plain error. * United States v. Olano, 507 U.S.
725, 732 (1993); United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). Under the plain error standard, Wheeler must show:
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. Olano, 507 U.S. at 732-34.
18 U.S.C. § 924(c)(1)(A) reads, in pertinent part:
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[,] . . . 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 five years.
Wheeler’s argument is foreclosed by United States v.
Studifin, 240 F.3d 415 (4th Cir. 2001). In Studifin, we
determined that the “except to the extent” language in
§ 924(c)(1)(A) merely serves “to link the remaining prefatory
language” with other subdivisions of the chapter. Id. at 423.
*
Though Wheeler’s plea agreement contained an appeal waiver
in which Wheeler agreed to waive all rights to contest his
conviction or sentence, except for claims of prosecutorial
misconduct or ineffective assistance of counsel, the Government
has failed to assert this waiver. Accordingly, we address
Wheeler’s claims on the merits. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (where Anders
brief is filed, “the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review”).
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Moreover,
[T]he “any other provision of law” language provides a
safety valve that would preserve the applicability of
any other provisions that could impose an even greater
mandatory minimum consecutive sentence for a violation
of § 924(c). In other words, we read this language as
simply reserving the possibility that another statute
or provision might impose a greater minimum
consecutive sentencing scheme for a § 924(c)
violation, and not as negating the possibility of
consecutive sentencing in the circumstances of the
present case.
Id. Thus, as held in Studifin, the introductory language of
§ 924(c)(1)(A) merely allows the provision to work together with
other applicable statutory provisions; it does not, as Wheeler
suggests, render the other statutory provisions the exclusive
minimum sentences to be applied to a given defendant. While
Wheeler tries to distinguish Studifin by noting that the
defendant in that case was an armed career criminal, that fact
had no bearing upon our ruling. Accordingly, as Wheeler’s
argument is foreclosed by Studifin, the district court did not
err in sentencing Wheeler to sixty months’ consecutive
imprisonment under § 924(c)(1)(A) even though Wheeler was
already subject to the ten year mandatory minimum of 18 U.S.C.
§ 841(b)(1)(B).
Counsel also argues that sentencing Wheeler to two
statutory minimums for two offenses violates the Eighth
Amendment’s prohibition against cruel and unusual punishment.
This argument fails, however. Though “[s]evere, mandatory
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penalties may be cruel, . . . they are not unusual in the
constitutional sense.” Harmelin v. Michigan, 501 U.S. 957, 994
(1991).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. Finding no error, we affirm the district court’s
judgment. This court requires counsel to inform Wheeler, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Wheeler requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy of the motion was served on Wheeler. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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