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United States v. Boyd

June 11, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SHABAKA K. BOYD, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 08 CR 50019-Frederick J. Kapala, Judge.

The opinion of the court was delivered by: Hamilton, Circuit Judge.

ARGUED MARCH 2, 2010

Before WOOD, WILLIAMS, and HAMILTON, Circuit Judges.

Appellant Shabaka Boyd pled guilty to possessing powder and crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); possessing a firearm as a felon, 18 U.S.C. § 922(g)(1); and possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). The district court sentenced Boyd to 274 months in prison for the drug offense, 120 months for the section 922(g) firearm offense, and 60 months for the section 924(c) firearm offense. The first two terms run concurrently, but the 60-month term under section 924(c) runs consecutively to the others for a total sentence of 334 months in prison, followed by five years of supervised release. The court also ordered Boyd to pay a $500 fine and a special assessment of $300, with the instruction: "During the term of incarceration, the payment of the fine and special assessment shall be paid in accordance with the Bureau of Prisons Inmate Financial Responsibility Program." The written judgment includes the special instruction to make payments "through the Federal Bureau of Prisons' Inmate Financial Responsibility Program." Boyd voiced no objection at sentencing to the fine or assessment, or to the court's payment instructions.

Boyd appeals his sentence. We affirm the sentence, but we modify it to make clear that participation in the Bureau of Prisons' Inmate Financial Responsibility Program ("IFRP") is voluntary. The district court may not require participation as part of its sentence.

I. The Consecutive Sentences

Boyd first argues that the ten-year mandatory minimum term that he faced for his section 841(a)(1) drug violation barred the district court from imposing the 60-month consecutive sentence for his section 924(c) firearm offense. Subsection (1)(A) of section 924(c) 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, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Subsection (1)(D)(ii) further provides: "Notwithstanding any other provision of law, . . . no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment."

Boyd reads the first phrase of subsection (1)(A) to mean that a sentence cannot be imposed for a conviction under section 924(c) in any prosecution where the defendant also faces a higher mandatory minimum sentence on another count of conviction. We rejected this argument in United States v. Easter, 553 F.3d 519 (7th Cir. 2009), cert. denied sub nom. McKay v. United States, 130 S.Ct. 1281 (2010). We held in Easter that the "except" clause in section 924(c)(1)(A) applies only to minimum sentences for a section 924(c)(1) offense-not to minimum sentences for other counts of conviction. 553 F.3d at 526.

Eight circuits have rejected Boyd's position; only the Second and Sixth Circuits have endorsed it. See United States v. Whitley, 529 F.3d 150, 152-58 (2d Cir. 2008); United States v. Williams, 558 F.3d 166, 168-75 (2d Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3254 (U.S. Oct. 20, 2009) (No. 09-466); United States v. Almany, 598 F.3d 238, 241-42 (6th Cir. 2010). The Supreme Court has granted certiorari in two consolidated cases to settle the issue. See Abbott v. United States, 574 F.3d 203 (3d Cir. 2009), cert. granted, 130 S.Ct. 1284 (U.S. Jan. 25, 2010) (No. 09-479); Gould v. United States, 329 F. App'x 569 (5th Cir. 2009) (nonprecedential decision), cert. granted, 130 S.Ct. 1283 (U.S. Jan. 25, 2010) (No. 09-7073). Boyd asks us to overrule Easter, but we believe its reasoning remains sound. We have consistently declined to overrule the decision, and we decline again here. See United States v. Mitten, 592 F.3d 767, 779 (7th Cir. 2010); ...


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