United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2006
Charles R. Fulbruge III
Clerk
No. 06-30009
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL WAYNE COLLINS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:04-CR-50170-4
--------------------
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Daniel Wayne Collins pleaded guilty to a bill of information
charging him with conspiracy to possess with intent to distribute
50 grams or more of methamphetamine or 500 grams or more of a
mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 846, and possession
of a firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i). The district court
sentenced Collins to consecutive prison terms of 168 months and
*
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this opinion should not be published and is not precedent except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.
No. 06-30009
-2-
60 months and to concurrent supervised-release terms of three
years.
Collins contends that the district court erred in concluding
that § 924(c)(1)(A), the sentencing provision for his firearm
offense, required the imposition of a five-year mandatory minimum
prison term when he was subject to a greater mandatory minimum
prison term for the predicate drug-trafficking offense. This
argument is based on the initial “exception” clause of
§ 924(c)(1)(A), which states that, “[e]xcept to the extent that a
greater minimum sentence is otherwise provided by this subsection
or by any other provision of law,” a person who uses or carries a
firearm, or possesses a firearm in furtherance of, a drug-
trafficking offense or crime of violence, is subject to various
mandatory minimum prison terms.
“The appropriate starting point when interpreting any
statute is its plain meaning,” which may be ascertained by both
the “particular statutory language at issue, as well as the
language and design of the statute as a whole.” United States v.
Elrawy, 448 F.3d 309, 315 (5th Cir. 2006) (citations and internal
quotation marks omitted). Three sister circuits have held that
the “exception” clause of § 924(c)(1)(A) does not permit a
district court to consider a sentence below the mandatory minimum
simply because a defendant’s predicate conviction carries a
mandatory minimum sentence greater than the mandatory minimum
sentence that applies under § 924(c). See United States v.
No. 06-30009
-3-
Alaniz, 235 F.3d 386, 387-89 (8th Cir. 2000); see also United
States v. Studifin, 240 F.3d 415, 421-23 (4th Cir. 2001)
(adopting analysis of Alaniz); United States v. Jolivette, 257
F.3d 581, 586-87 (6th Cir. 2001) (same). With respect to §
924(c)(1)(A)’s exception for a “greater minimum sentence”
prescribed by “any other provision of law,” the Fourth Circuit
reasoned that such 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).” Studifin, 240 F.3d at 423. The
language was interpreted 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”
circumstances in which a defendant faces a greater mandatory
minimum sentence for a predicate drug-trafficking or crime-of-
violence offense. Id. The court in Alaniz also pointed out that
an interpretation like Collins’s would be “illogical” because it
“would punish those guilty of severe [predicate] offenses more
leniently, and those guilty of less severe sentences more
stringently.” Alaniz, 235 F.3d at 389.
We find the rationale of these decisions convincing.
Although the exception for a “greater minimum sentence . . .
otherwise provided . . . by any other provision of law” is not a
model of clarity, the rest of the sentence in which it appears
No. 06-30009
-4-
refers to a person who has either used or carried a firearm
during and in relation to, or possessed a firearm in furtherance
of, a crime of violence or drug-trafficking crime. In construing
the “exception” clause in the context of the “language and design
of the statute as whole,” see Elrawy, 448 F.3d at 315, it is
reasonable to read the phrase “any other provision of law” as
referring to legal provisions outside the confines of § 924(c)
that concern firearm possession in furtherance of a crime of
violence or drug-trafficking crime. Accordingly, we adopt the
analysis of Alaniz, Studifin, and Jolivette and hold that
§ 924(c)(1)(A) does not permit a sentence below five years for
that offense in the circumstances of Collins’s case.
Collins contends that the district court abused its
discretion in denying his request for funds to hire mitigation
investigators for sentencing purposes, pursuant to 18 U.S.C.
§ 3006A(e)(1). He maintains that further investigation would
likely to have led to mitigating evidence that would have
warranted a sentence below the guideline range, especially with
respect to head trauma he had suffered as a child. We review the
denial of a request for appointment of an expert or specialist
under § 3006A(e)(1) for abuse of discretion. United States v.
Hardin, 437 F.3d 463, 468 (5th Cir. 2006). Because most of the
personal factors cited by Collins were discussed in his
Presentence Report, and because Collins has not demonstrated that
the failure to grant funds for an investigator prejudiced him,
No. 06-30009
-5-
see, e.g., United States v. Bertling, 370 F.3d 818, 820 (8th Cir.
2004), Collins has not shown that the district court abused its
discretion.
Collins has not shown clear error with respect to the
district court’s refusal to grant a two-level reduction based on
Collins’s alleged “minor” offense role under U.S.S.G. § 3B1.2(b).
See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir.),
cert. denied, 126 S. Ct. 268 (2005). Although Collins’s
coconspirators may have been involved with greater quantities of
methamphetamine than he was, his possession of four ounces of
methamphetamine, as well as of a firearm and other drugs,
reflected that he was not “peripheral” to the advancement of the
conspiracy. See id. at 204.
Collins contends that the sentence was “unreasonable”
because the district court should have considered a prison term
of less than five years for the § 924(c)(1)(A)(i) offense
(because of the “exception” clause in § 924(c)(1)(A)) and because
the denial of funds for a mitigation investigator prevented the
district court from giving due consideration to mitigating
evidence that would have warranted a sentence outside the
guideline range. Because those two contentions are meritless,
Collins has not rebutted the presumption that the sentence, which
was within the guideline range, was reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
For the foregoing reasons, the convictions and sentences are
AFFIRMED.