United States v. Matthew Acosta

333 F. App'x 159

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 29, 2009
• Docket: 08-3260
• Status: Unpublished

Opinion

PER CURIAM.

Matthew Acosta was convicted of trafficking in fifty grams or more of crack cocaine and possessing firearms in furtherance of drug trafficking. See 21 U.S.C. § 841(a)(1), (b)(1)(A); 18 U.S.C. § 924(c). The drug offense carried a minimum sentence of ten years, see 21 U.S.C. § 841(b)(1)(A), and the firearms offense carried a minimum sentence of five years, see 18 U.S.C. § 924(c)(l)(A)(i); the district court 1 imposed the minimum sentence on both counts and ordered the sentences to run consecutively, see 18 U.S.C. § 924(c)(1)(D). Although 18 U.S.C. § 924(c)(1)(A) clearly requires that sentences imposed for acts that it proscribes be “in addition to” the sentence for the relevant predicate offense, Mr. Acosta nevertheless argues that this provision does not apply if the predicate offense carries a minimum sentence greater than the one to which his firearms offense subjected him. He bases his argument on the prefatory language in § 924(c)(1)(A) that makes the section inapplicable if “a greater minimum sentence is otherwise provided.” He maintains that since his predicate drug offense carried a greater mandatory minimum sentence than § 924(e)(1)(A) provides, the latter is inapplicable.

We have, as Mr. Acosta recognizes, already rejected the argument that he advances, on the ground that the prefatory language is referring only to minimum sentences for the firearms-related conduct that § 924(c)(1) or some other statute proscribes. See United States v. Alaniz, 235 F.3d 386, 388-89 (8th Cir.2000), cert. denied, 533 U.S. 911, 121 S.Ct. 2262, 150 L.Ed.2d 246 (2001). Our Alaniz case specifically held that § 924(c)(1)(A) “requires a consecutive firearms sentence for a criminal defendant already subject to a greater minimum sentence for his predicate drug crime or crime of violence.” Id. at 390.

The Alaniz case is carefully and convincingly reasoned and has in fact been followed in a number of circuits. See, e.g., United States v. Jolivette, 257 F.3d 581, 586-87 (6th Cir.2001). We are bound in any event by our previous holding since only the court en banc has the power to overrule it. See United States v. Caldwell, 339 F.3d 680, 681 (8th Cir.2003).

Affirmed.

1 . The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa.