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Revised September 27, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-31357
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PHILLIP K. SIAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
September 8, 2000
Before DUHÉ, EMILIO M. GARZA and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Phillip K. Sias seeks to vacate his sentence. Having
concluded a complete review of the record and for the reasons set
forth below, we find no error and, therefore, affirm.
I. BACKGROUND
While committing the armed robbery of a United States Post
Office, Sias brandished a .38 caliber revolver, threatened to kill
a postal employee, and took approximately $140 in cash, several

postal money orders, and a money order imprinting device. He was
arrested and indicted on one count of robbery of a postal facility
in violation of 18 U.S.C. § 2114(a), and on one count of using and
carrying a firearm during the commission of a violent crime in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Thereafter, Sias
entered into a plea and cooperation agreement with the government
pursuant to which he entered a guilty plea to Count II of the
indictment charging him with the use and carrying of a firearm
during the commission of a violent crime.1 Sias agreed to
cooperate with the government in exchange for a recommendation that
he be sentenced at the lower end of any Guidelines sentencing
range. The robbery count was dismissed upon Sias's entry of his
guilty plea on the firearms count.
As part of his plea agreement, Sias executed an "Affidavit of
Understanding of Maximum Penalty and Constitutional Rights." This
agreement, as well as the underlying plea and cooperation
agreement, and the district court's questioning of Sias prior to
acceptance of his guilty plea, all indicated that the maximum
penalty applicable under § 924(c)(1)(A)(ii) was life imprisonment.
Additionally, the Presentence Report ("PSR") indicated that the
base offense level specified by the applicable statute carried a
1
We note that in the criminal complaint originally filed
against Sias, in the plea agreement, and in the stipulated factual
basis for the guilty plea, reference is made to Sias's brandishing
of a firearm sufficient to make applicable the seven-year minimum
mandatory sentence for brandishing a firearm during the commission
of a crime of violence found in § 924(c)(1)(A)(ii).
2

sentence of seven years to life imprisonment. Sias did not object
to the PSR, and at sentencing, the district court adopted the PSR
as its finding of facts.
At the sentencing hearing, the government recommended a
sentence at the low end of the Guidelines range, subject to any
applicable mandatory minimum sentence. Sias made a statement
expressing his remorse for his crime and requesting leniency from
the court. The postal employee robbery victim was permitted to
make a statement at the sentencing hearing, and she described the
robbery, Sias's threats to her life made during the robbery, and
the impact the robbery had on her life.
The district court held that U.S.S.G. § 2K2.4A applied to
Sias's conviction and that section provides that the term of
imprisonment applicable to his conviction is that required by the
statute of conviction, that is, 18 U.S.C. § 924(c)(1)(A)(ii).
Using a criminal history category of one, and the applicable
Guidelines range under the statute of seven years to life
imprisonment, the district court sentenced Sias to a ten-year term
of imprisonment, to be followed by a five-year term of supervised
release. Sias was also ordered to pay $1,348.58 in restitution and
was assessed the mandatory $100 special monetary assessment. In
sentencing Sias, the district court stated that it found "no reason
to depart from the sentence called for by the application of the
Guidelines . . . ."
Sias has now timely appealed the sentence entered by the
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district court, arguing that the district court erred in
interpreting 18 U.S.C. § 924(c)(1)(A)(ii) as providing for a
sentence of not less than seven years and up to life imprisonment.
Sias argues that any sentence in excess of seven years is not
authorized by the statute.
II. DISCUSSION
Ordinarily, we review a district court's application of the
Sentencing Guidelines de novo. See United States v. Phillips, 210
F.3d 345, 351 (5th Cir. 2000); see also United States v. Lankford,
196 F.3d 563, 578 (5th Cir. 1999) (court of appeals reviews
district court's construction of a statute de novo), cert. denied,
120 S. Ct. 1984 (2000). However, since this issue was not
presented to the trial court, it must be deemed waived unless the
lower court's action constituted plain error. See United States v.
Mann, 161 F.3d 840, 867 n.91 (5th Cir. 1998), cert. denied, 119
S. Ct. 1766 (1999); see also Fed. R. Crim. P. 52(b) (allowing for
notice of plain errors affecting substantial rights which were not
presented to the trial court). If the error complained of for the
first time on appeal is plain and affected substantial rights, this
Court may provide relief. See United States v. Gaudin, 115 S. Ct.
2310, 2322 (1995) (stating that if there is a forfeited error,
which is plain, and which affects substantial rights, the decision
to correct that forfeited error is in the sound discretion of the
4

courts of Appeals). And under this standard, we should not
exercise our discretion to correct a forfeited error unless the
error "seriously affects the fairness, integrity or public
reputation of judicial proceedings." Id. (internal quotations
omitted). However, because a sentence which exceeds the statutory
maximum is an illegal sentence and therefore constitutes plain
error, our review of the issue presented in this appeal will be de
novo. See Lankford, 196 F.3d at 563.
The issue presented in this appeal, that is, whether a
sentence imposed pursuant to 18 U.S.C. § 924(c) carries a maximum
term of life imprisonment or whether a sentence imposed thereunder
must be limited to a seven-year term of imprisonment has not yet
been directly addressed by any of our prior decisions.
We begin our analysis by noting that the prior version of 18
U.S.C. § 924(c) explicitly called for defendants convicted
thereunder to be sentenced to a specifically stated mandatory term
of imprisonment. The version of this statute applicable to Sias's
conviction was amended to provide for mandatory minimum sentences,
thus implying that the only term of imprisonment "mandated" by
§ 924(c) was the minimum or the floor, not the floor and ceiling as
the prior version of the statute provided. By implication,
Congress left open the ceiling of sentences imposed under § 924(c).
Sias argues that § 924(c)(1)(A)(ii) provides for a sentence of
seven years in addition to the sentence imposed for the underlying
5

crime, and since his underlying offense was dismissed, he should
only have been sentenced to the seven-year term of imprisonment in
§924(c)(1)(A)(ii). He contends that only seven years is
"required." We agree with Sias to the extent that
§ 924(c)(1)(A)(ii) "requires" that a defendant be sentenced to
seven years, but we disagree with him that the sentencing judge is
not "permitted" to impose a sentence greater than seven years. The
language selected by Congress when it stated "no less than" seven
years would be superfluous if Congress intended for district courts
not to impose sentences greater than the mandatory minimum seven-
year term. If the language of the now-applicable version of
§ 924(c) had remained "shall be sentenced to a term of seven
years," without the "no less than" minimum qualifier, we would be
more inclined to agree with Sias that the district court was not
authorized to impose a sentence greater than seven years. But as
the statute currently reads, Congress has implicitly authorized
district courts to impose sentences under § 924(c)(1)(A)(ii) in
excess of seven years and up to a maximum of life imprisonment.
Our conclusion today is supported by our prior holdings with
respect to the identical language found in 18 U.S.C. § 924(e),
which provides for the imposition of a mandatory term of
imprisonment of "not less than fifteen years" if a defendant was
convicted of a violation of 18 U.S.C. § 922(g) and had three prior
convictions for violent felonies or serious drug offenses. With
respect to § 924(e), we have held that in the absence of a
6

statutory maximum penalty, the maximum penalty when a term of not
less than a certain number of years is provided, means that the
maximum is life imprisonment. See United States v. Guerrero, 5
F.3d 868, 873-74 & n.12 (5th Cir. 1993); United States v.
Carpenter, 963 F.2d 736, 742 (5th Cir. 1992); see also United
States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993)(collecting
cases from Second, Third, Fourth, Fifth, Seventh, and Tenth
Circuits).
Sias has failed to provide us with any authority or
justifications for announcing a different rule with respect to the
"not less than seven years" minimum mandatory provisions of
§ 924(c)(1)(A)(ii) than we have previously announced with respect
to the "not less than fifteen years" minimum mandatory provisions
of § 924(e). Additionally, Sias has failed to present any argument
that the ten-year term of imprisonment imposed by the district
court was unreasonable, and we, therefore, need not address the
reasonableness of such a sentence. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). In our view, Congress specifically
intended to leave open the maximum penalty to be imposed for
violations of § 924(c)(1)(A)(ii), and the "no less than seven
years" reference in that statute is designed to serve as the floor,
not the ceiling, for sentences imposed thereunder.
III. CONCLUSION
7