Summary Calendar UNITED STATES OF AMERICA v. Michelle Kyles

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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No. 07-20250
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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
extent that 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.

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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 of the 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.

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