United States of America v. Arthur Hudson

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3680
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTHUR HUDSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 1010—Wayne R. Andersen, Judge.
ARGUED MAY 27, 2010—DECIDED DECEMBER 6, 2010
Before BAUER, WOOD, and TINDER, Circuit Judges.
TINDER, Circuit Judge. In late September or early
October of 2005, Arthur Hudson received approximately
20 kilograms of cocaine on consignment from a
person identified in the record below as “Individual A”
at a Culver’s restaurant in Romeoville, Illinois. After
this deal, “A” started cooperating with the Drug Enforce-
ment Administration. On October 17, 2005, “A” and an
undercover DEA agent met Hudson in a Walgreens

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2 No. 09-3680
parking lot in Romeoville to get the money Hudson
owed for the previously fronted drugs. Hudson gave
the informant the keys to his Chevy Impala and told
him how to find the money inside the car’s “trap,” a
hidden compartment. “A” and the agent found about
$240,225 in cash and about 600 grams of powder
cocaine and 80 grams of cocaine base in the form of crack
cocaine inside the trap. The trio met again on October 18,
2005, this time with a payment of $92,495 being
made through the use of the Chevy’s trap.
A federal magistrate judge signed a sealed criminal
complaint on December 14, 2005, charging Hudson with
knowingly and intentionally possessing cocaine and
crack cocaine with intent to distribute it. Federal agents
arrested Hudson the next day in his Chicago home.
His wife consented to a search of the home, during
which agents found guns and drug-related para-
phernalia, including a Ruger 9mm semi-automatic
pistol (next to a kilogram of cocaine) in a filing cabinet
drawer.
Hudson pled guilty on June 19, 2008, to possessing
five kilograms of cocaine or more with intent to dis-
tribute it in violation of 21 U.S.C. § 841(a)(1) and pos-
sessing a firearm (the Ruger) in furtherance of his drug
trafficking in violation of 18 U.S.C. § 924(c)(1)(A).
Hudson admitted the drug crime and that he possessed
and stored the Ruger to protect himself and his drug
stash. The district court sentenced Hudson to the
statutory mandatory minimum 120 months’ incarcera-
tion for the drug charge and to 60 months’ incarceration
for gun possession in furtherance of drug dealing, to be

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No. 09-3680 3
served consecutively to the period of incarceration on
the drug charge.
Hudson appeals only his sentence, contending that we
should vacate the 60-month consecutive portion of the
sentence because the district court mistakenly believed
§ 924(c)(1)(A) required a mandatory minimum term of
consecutive confinement. Hudson makes a single but
pointed argument: he contends that § 924(c)(1)(A) only
imposes a mandatory consecutive sentence if the under-
lying crime does not impose a greater mandatory mini-
mum sentence. And, of course, Hudson’s § 841(a) con-
viction required a greater mandatory minimum sen-
tence (120 months) than his § 924(c)(1)(A) conviction
(60 months). Hudson bases his argument on what is
known as the “except” clause of that firearm statute.
The “except” clause upon which Hudson relies 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 traf-
ficking crime (including a crime of violence or
drug trafficking crime that provides for an en-
hanced 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 traf-
ficking crime—

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4 No. 09-3680
(i) be sentenced to a term of imprisonment of not
less than 5 years . . . .
18 U.S.C. § 924(c)(1)(A)(i) (emphasis supplied).
Hudson argues that the only way to read § 924(c)(1)(A)(i)
as mandating a five-year sentence for possessing a fire-
arm in furtherance of drug trafficking on top of his ten-
year sentence for the drug trafficking is to ignore
§ 924(c)(1)(A)’s exception for “any other provision of law.”
Hudson’s appellate counsel concedes that Hudson
faces an uphill battle in pursuing this argument: his
brief acknowledges that we held in United States v. Easter,
553 F.3d 519, 524-27 (7th Cir. 2009) (per curiam), cert.
denied sub nom., McKay v. United States, 139 S. Ct. 1281, and
McSwain v. United States, No. 08-9560, ___ S. Ct. ___, 2010
WL 4811788 (Nov. 29, 2010), that § 924(c)(1)(A)’s lan-
guage “any other provision of law” did not include under-
lying crimes such as Hudson’s conviction for posses-
sion with intent to distribute. Easter rested on the pub-
lished opinions from four other circuits, which all held
that the “any other provision of law” clause did not refer
to the underlying drug trafficking crime or crime of
violence. Id. at 525 (citing United States v. Alaniz, 235
F.3d 386, 389 (8th Cir. 2000)); see also United States v.
Parker, 549 F.3d 5, 10-12 (1st Cir. 2008), cert. denied, 129
S. Ct. 1688 (2009); United States v. Jolivette, 257 F.3d 581,
587 (6th Cir. 2001); United States v. Studifin, 240 F.3d 415,
423 (4th Cir. 2001). Rather, “any other provision of law”
refers only to “another penalty provision elsewhere in
the United States Code [that] requires a higher minimum
sentence for that § 924(c)(1) offense.” Easter, 553 F.3d at 526.

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No. 09-3680 5
Hudson recognizes that Easter dooms his appeal but
in his brief he requests that we overturn Easter. Since
Easter, four other circuits have reached the same con-
clusion. See United States v. Villa, 589 F.3d 1334, 1343
(10th Cir. 2009), cert. denied, No. 09-1445, ___ S. Ct. ___,
2010 WL 2150717 (Nov. 29, 2010); United States v. Segarra,
582 F.3d 1269, 1272-73 (11th Cir. 2009), cert. denied, No. 09-
8536, ___ S. Ct. ___, 2010 WL 111551 (Nov. 29, 2010);
United States v. Abbott, 574 F.3d 203, 211 (3d Cir. 2009);
United States v. London, 568 F.3d 553, 564 (5th Cir. 2009),
cert. denied, No. 09-5844, ___ S. Ct. ___, 2010 WL 4811790
(Nov. 29, 2010). Hudson asserts that Easter ignored
§ 924(c)(1)(A)’s plain language and that we should
instead follow the Second Circuit’s opinion in United
States v. Williams, 558 F.3d 166 (2d Cir. 2009), decided
less than two months after Easter. Williams rested on
United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), an
opinion Easter expressly rejected.
Hudson also acknowledges that we review for plain
error because he forfeited the issue by failing to raise
it before the district court. As Hudson’s briefs and oral
argument make clear, his position in this appeal really
rests on the hope that the Supreme Court would rule
his way in a pair of then-pending cases directly
addressing this issue. Given the choice at oral argument
to wait to see if the Supreme Court would effectively
overrule our existing circuit precedent or to take the
chance that we would overrule Easter before the Court
acted on the pending cases, Hudson elected to wait and
see. We honored his request.

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6 No. 09-3680
Hudson’s wait ended November 15, 2010, when the
Supreme Court held that § 924(c)(1)(A)’s “except” clause
only applies when the minimum sentence “otherwise
provided” is “for the [§ 924(c)] offense in question.”
Abbott v. United States, 131 S. Ct. 18, 2010 WL 4569898, at
*12 (2010) (quoting Easter, 553 F.3d at 526). The Court
addressed the same argument Hudson advances, that
§ 924(c)(1)(A)’s terms plainly except mandating its mini-
mum sentence when another provision of law mandates
a longer minimum sentence. The Supreme Court unequiv-
ocally rejected that construction, holding that the “except”
clause—as a preceding and qualifying clause of the
main clause that punishes the possession of a firearm—
refers naturally to the conduct § 924(c) prohibits. The
“except” clause serves as a “no-stacking instruction
for cases in which § 924(c) and a different statute both
punish conduct offending § 924(c).” Id. The Court noted
that this reading gave effect to the provision’s language
requiring that all § 924(c) offenders receive an extra
punishment for using guns in crimes of violence or
drug trafficking. Id. at *8.
The Supreme Court’s emphatic (and unanimous) rejec-
tion of the Second Circuit’s approach to § 924(c) resolves
Hudson’s only argument on appeal. Because the
Supreme Court confirmed in Abbott that we read § 924(c)
correctly in Easter, we AFFIRM Hudson’s sentence.
12-6-10

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