United States v. Derek Lucas
542 F. App'x 510
6th Cir.
2013
Check Treatment
Docket

UNITED STATES of America, Plaintiff-Appellee, v. Derek LUCAS, Defendant-Appellant.

No. 12-6413.

United States Court of Appeals, Sixth Circuit.

Nov. 20, 2013.

510

BEFORE: SILER, McKEAGUE, and WHITE, Circuit Judges.

unless the omission “directly contradict[s] an applicant‘s subsequent testimony.” The creation of this rule overstates the holding of Sinani and, more importantly, of

, on which Sinani purportedly relies.

is directed to improper credibility determinations based on testimony that is more specific than the brief statements typically contained in an asylum application. The result of
turns on the substantiality of the omissions.
.
says nothing about whether testimony directly contracts an omission. In fact, common sense tells us that an omission cannot be in direct contraction with a later affirmative statement. And
recognizes that of course, “omissions may form the basis of an adverse credibility determination.”

Although Sinani does contain the language cited by the majority and purports to draw this conclusion from

, what was at issue in Sinani was Sinani‘s use of the more specific word “rape” in subsequent statements while the first version of her asylum application referred to “physical abuse.” As the Sinani panel correctly observed, there was no basis for an inconsistency finding because “physical abuse” does not exclude “rape.”
.

In short, the language from Sinani on which the majority relies is not found in

, is not the basis for decision in Sinani, and is inconsistent with the reality that omissions do not “directly contradict” affirmative statements. As we have noted in a published opinion,
is appropriately characterized as a warning to “exercise[] extra care in evaluating omissions from asylum applications” given the “difficulties asylum seekers face in providing exhaustive accounts in asylum applications.”
.

PER CURIAM.

Derek Lucas appeals his sentence.

A jury found Lucas guilty of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court determined that Lucas was subject to a mandatory term of life in prison under 18 U.S.C. § 3559(c)(1) based on his firearm offense and the fact that he had been convicted in state court of two or more serious violent felonies on separate prior occasions. The district court sentenced Lucas to a life term on each count.

On appeal, Lucas argues that the district court erred by imposing the mandatory life term under § 3559 without submitting to a jury the issue whether he had the requisite prior convictions. Because Lucas failed to raise this argument in the district court, we review it for plain error. See

.

The district court did not plainly err in imposing the mandatory life term under § 3559. In

, the Supreme Court held that the fact of a prior conviction does not need to be proven to a jury beyond a reasonable doubt. See
. Further, notwithstanding Lucas‘s argument to the contrary, the Court‘s decision in
, did not undermine the holding of
. See
.

Accordingly, we affirm Lucas‘s sentence.