(D.C. No. 6:12-CR-10071-EFM-1) (D. Kan.)
Before LUCERO, EBEL, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT[*]
JEROME A. HOLMES, Circuit Judge.
Lessie B. Cooper, Jr., pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 924(c). At sentencing, the district court found that Mr. Cooper was subject to a statutory ten-year mandatory minimum because the firearm was a short-barreled rifle. See 18 U.S.C. § 924(c)(1)(B)(i). Mr. Cooper objected that § 924(c)(1)(B)(i) provided a specific sentence of ten years instead of a range of ten years to life, as interpreted by the court and the government, and that this section was not appropriately applied to him because he had not admitted to knowing that the rifle had a shortened barrel. Overruling these objections, the district court sentenced Mr. Cooper to a term of 160 months' imprisonment. On appeal, Mr. Cooper raises the same arguments he made before the district court. For the reasons set forth below, we affirm in part and reverse and remand in part.
In March 2012, Mr. Cooper and another individual robbed a branch of Commerce Bank in Wichita, Kansas. In carrying out the robbery, Mr. Cooper brandished a 9mm semi-automatic rifle with a shortened barrel. He was arrested shortly after leaving the bank and was subsequently charged with three counts, all related to the robbery. As relevant here, Count Two charged Mr. Cooper with brandishing a semi-automatic rifle during and in relation to a crime of violence. Notably, the indictment did not charge Mr. Cooper with using a short-barreled rifle, nor did it mention that the rifle used had a shortened barrel.
Mr. Cooper pleaded guilty to Count Two. In his plea agreement, Mr. Cooper admitted that he had brandished the rifle, and that the rifle "was measured to have a barrel length of 16.5 inches and a[n] overall length of 20.75 inches." R., Vol. I, at 18 (Plea Agreement, . Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report. The Probation Office determined that Mr. Cooper was subject to a ten-year mandatory minimum, under 18 U.S.C. § 924(c)(1)(B)(i). Section 924(c)(1) punishes "any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). The subsection at issue provides that such person "shall be sentenced to a term of imprisonment of not less than 10 years" if the firearm "is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon." Id. § 924(c)(1)(B)(i) (emphasis added).
Mr. Cooper objected to the PSR's characterization of § 924(c)(1)(B)(i) as providing a mandatory minimum as opposed to a specific statutory sentence. Additionally, he objected to the application of this subsection because he had not specifically admitted to knowing that the rifle had a shortened barrel. The district court overruled both objections. The district court found that the correct Guidelines range was ten years to life imprisonment. The district court then sentenced Mr. Cooper to 160 months' imprisonment. On the government's motion, made pursuant to the plea agreement, the district court dismissed the two remaining counts. Mr. Cooper raises the same two issues on appeal.
We review a defendant's sentence "under an abuse of discretion standard for procedural . . . reasonableness." United States v. Gordon, 710 F.3d 1124, 1160 (10th Cir. 2013) (quoting United States v. Snow, 663 F.3d 1156, 1160 (10th Cir. 2011)) (internal quotation marks omitted). "Procedural review asks whether the sentencing court committed any error in calculating or explaining the sentence." United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). "A sentence is procedurally unreasonable if the district court incorrectly calculates . . . the Guidelines sentence . . . ." Gordon, 710 F.3d at 1160 (quoting United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008)) (internal quotation marks omitted). Finally, we "review the court's legal conclusions de novo and its factual findings for clear error." United States v. Ramos, 695 F.3d 1035, 1039 (10th Cir. 2012) (quoting United States v. Burgess, 576 F.3d 1078, 1101 (10th Cir. 2009)) (internal quotation marks omitted).
Mr. Cooper first asserts that the district court's interpretation of 18 U.S.C. § 924(c) as setting a sentencing range instead of a specific, fixed term of years was in error. We may, however, easily dispose of this argument. Indeed, as Mr. Cooper admits, it is foreclosed by our precedent. See Aplt. Opening Br. At 4 ("This Circuit, along with every other Circuit Court to address the issue, has rejected th[is] argument and held that the maximum sentencing provision under § 924(c) is implicitly life, even though the statute does not say so."). As we have previously explained, § 924(c) "sets a maximum penalty . . . of life imprisonment and specifies that a defendant found to possess a particular type of weapon will receive a specific mandatory minimum prison sentence." United States v. Avery, 295 F.3d 1158, 1170 (10th Cir. 2002); see United States v. Bowen, 527 F.3d 1065, 1074 n.7 (10th Cir. 2008) ("[T]he 'maximum penalty' for a violation of § 924(c)(1) is 'life imprisonment.'" (quoting Avery, 295 F.3d at 1170)); see also Alleyne v. United States, 570 U.S. ----, 133 S.Ct. 2151, 2160 (2013) (noting that the base penalty under § 924(c) "is five years to life in prison" and explaining that "the maximum of life marks the outer boundary of the range" (emphasis added)).
"We cannot, of course, 'overturn the decision of another panel of this court barring en banc reconsideration, a superseding contrary Supreme Court decision, or authorization of all currently active judges on the court.'" United States v. De Vaughn, 694 F.3d 1141, 1149 n.4 (10th Cir. 2012) (quoting United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000)). Because none of these events has ensued, we hold that the district ...