New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Federal Sentencing: Firearms and 18 USC § 924(c) Concurrent vs. Consecutive Sentencing: Interpreting Abbott v. United States


UNITED STATES v. JOSE TEJADA, JOSE LUIS MEJIA, JOSE AVILE,

Decided February 9, 2011 SECOND CIRCUIT COURT OF APPEALS

Issue : Whether the district court correctly interpreted and applied §924(c) when it sentenced the defendant to consecutive sentences of 120 months and 60 months.

Holding : Following Abbott v. United States, 131 S. Ct. 18 (2010), which abrogates our earlier holdings in United States v. Williams, 558 F.3d 166 (2d Cir. 2009), and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), we reject Mejia”s challenge to the consecutive § 924(c)(1)(A) sentence as without merit.

Facts : Defendant Jose Luis Mejia appeals from a judgment of conviction entered onNovember 20, 2007, in the United States District Court for the Southern District of New York (Richard M. Berman, Judge), sentencing him to concurrent mandatory minimum prison terms of 120 months for conspiratorial and substantive drug trafficking, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and a consecutive 60-month prison term for possessing a firearm in relation to these drug crimes, see 18 U.S.C. § 924(c)(1)(A)(i).

Mejia contends that to the extent the district court thought a consecutive sentence was required by § 924(c)(1)(A), the judgment runs afoul of our decisions in United States v. Williams, 558 F.3d 166 (2d Cir. 2009), and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). On April 25, 2007, Mejia pleaded guilty to three counts of a nine-count superseding indictment: Count One, charging conspiracy to distribute one or more kilograms of heroin; Count Two, charging distribution and possession with intent to distribute the same amount of heroin; and Count Seven, charging the use, carrying, and possession of a firearm during and in furtherance of the two drug crimes. Pursuant to a plea agreement, the prosecution predicted that Mejia”s Sentencing Guidelines range for the drug trafficking counts would be 135 to 168 months” imprisonment, with a consecutive 60-month prison term mandated by 18 U.S.C. § 924(c)(1)(A)(i) for the firearm count.

Mejia agreed that he would not appeal or collaterally challenge any sentence within or below this prediction. On November 19, 2007, the district court imposed a below-Guidelines, concurrent prison sentence of 120 months – the mandated statutory minimum, see 21 U.S.C. § 841(b)(1)(A) – for each of the drug trafficking counts and a consecutive prison sentence of 60 months for the firearm count.

Notwithstanding the waiver contained in his plea agreement, Mejia timely appealed,arguing that the imposition of a mandatory consecutive sentence pursuant to 18 U.S.C. § 924(c)(1)(A)(i) in his case ran afoul of this court”s holding in United States v.Williams, 558 F.3d 166 (holding that mandatory consecutive 60-month sentence under §924(c)(1)(A)(i) does not apply when defendant is subject to longer mandatory minimum for predicate drug trafficking offense).

Legal Analysis : While Mejia”s appeal was pending, the Supreme Court granted a writ of certiorari in the consolidated cases of Abbott v. United States, 130 S. Ct. 1284 (2010), and Gould v. United States, 130 S. Ct. 1283 (2010), to resolve a circuit split over the proper construction of § 924(c)(1)(A), specifically, its introductory “except” clause.

Title 18 U.S.C. § 924(c)(1)(D) states in relevant part:

Notwithstanding any other provision of law –

(ii) no term of imprisonment imposed on a person under this subsection

shall run concurrently with any other term of imprisonment imposed on the

person, including any term of imprisonment imposed for the crime of

violence or drug trafficking crime during which the firearm was used,

carried, or possessed.

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.

18 U.S.C. § 924(c)(1)(A) (emphasis added). Where applicable, the prescribed five-, seven-, or ten-year minimum sentences (for possession, brandishing, or discharge, respectively) must run consecutively to any other term of imprisonment, including the term imposed for the predicate crime of violence or drug trafficking. See §924(c)(1)(D)(ii).

In Abbott v. United States, 131 S. Ct. 18, the Supreme Court declined to construe the § 924(c)(1)(A) “except” clause in the same way as this court in Whitley and Williams. Focusing on the phrase “otherwise provided by . . . any other provision of law,” the Court identified the “key question” in interpreting the clause as “otherwise provided for what?” The answer, the Court decided, is “for the conduct § 924(c) itself proscribes, i.e., possessing a firearm in connection with a predicate crime.”

In short, the Court interpreted the “except” clause to mean that a defendant is “subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum.

Thus, in marked contrast to our holdings in Whitley and Williams, the Supreme Court construed the “any other provision of law” segment of the “except” clause to apply only to statutes that provide a greater mandatory minimum sentence for an offense that embodies all the elements of a § 924(c) crime.

The Court reasoned that this more cabined interpretation (1) gives effect to the clear statutory command that § 924(c) offenders receive additional punishment; (2) makes sense as a matter of syntax because the “except” clause, as a proviso to § 924(c), is most naturally understood to reference the conduct proscribed by that subsection; and (3) finds strong contextual support in that the “any other provision of law” phrase furnishes the same “no-stacking” of sentences instruction for cases where another statute punishes conduct proscribed by § 924(c) as the “by this section” phrase does for the tiered punishments specified under § 924(c) itself.

Accordingly, relying on Abbott, we identify no error in the challenged sentence. The district court was correct in its original conclusion that it was required by law to impose a five-year term of imprisonment on the § 924(c) count of conviction to run consecutive to the concurrent tenyear mandatory minimum sentences imposed for the predicate drug trafficking crimes.