07-5289-cr (Con)
United States v. Valentin (Mejia)




                                    UNITED STATES COURT OF APPEALS

                                            FOR THE SECOND CIRCUIT


                                               August Term, 2009

                   (Argued: September 24, 2009               Decided: February 9, 2011)

                  Docket Nos. 07-3419-cr (L), 07-5289-cr (CON), 08-2665-cr (CON)


                                          UNITED STATES OF AMERICA,

                                                                                  Appellee,
                                                     —v.—

                                    JOSE TEJADA, JOSE LUIS MEJIA, JOSE AVILE,

                                                                        Defendants-Appellants.*

                                              _________________

Before:
                      LEVAL, RAGGI, Circuit Judges, and GLEESON, District Judge.**
                                                             ______




           *
        In this opinion, the court addresses only the appeal filed by defendant Jose Luis
Mejia. The appeals of defendants Jose Tejada and Jose Avile have been addressed in
previously entered orders. See United States v. Tejada, 347 F. App’x 660 (2d Cir. 2009)
(Summary Order) (Avile); Order, United States v. Tejada, No. 07-3419-cr (2d Cir. Sept. 30,
2009) (Tejada).
           **
          District Judge John Gleeson of the United States District Court for the Eastern
District of New York, sitting by designation.

                                                       1
       Appeal from a judgment of conviction entered on November 20, 2007, in the United

States District Court for the Southern District of New York (Richard M. Berman, Judge),

sentencing defendant Jose Luis Mejia to concurrent mandatory minimum prison terms of 120

months for conspiratorial and substantive drug trafficking and a consecutive 60-month prison

term pursuant to 18 U.S.C. § 924(c)(1)(A)(i) for possessing a firearm in relation to these drug

crimes. 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.

       AFFIRMED.

                                 _____________________

              MARSHA R. TAUBENHAUS, New York, New York, for Jose Luis Mejia.

              REED M. BRODSKY, Assistant United States Attorney (Daniel A. Braun,
              Assistant United States Attorney, on the brief), on behalf of Lev L. Dassin,
              Acting United States Attorney for the Southern District of New York, New
              York, New York, for Appellee.
                               _____________________

REENA RAGGI, Circuit Judge:

       Defendant Jose Luis Mejia appeals from a judgment of conviction entered on

November 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

                                              2
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). To the extent our

construction of § 924(c)(1)(A) in Williams and Whitley supports Mejia’s argument, that

construction was rejected by the Supreme Court in Abbott v. United States, 131 S. Ct. 18

(2010). Following Abbott, we reject Mejia’s appeal on the merits and affirm the judgment

of conviction.

I.     Background

       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.

                                              3
       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). To ascertain whether Mejia complained of more than

harmless error, we remanded his case to the district court to allow it to clarify whether it

would have imposed a lesser or non-consecutive sentence on the firearm count if it had

understood that it was permitted to do so under Williams. See United States v. Tejada, 364

F. App’x 714 (2d Cir. 2010) (Summary Order) (citing United States v. Jacobson, 15 F.3d 19,

22 (2d Cir. 1994)). On August 26, 2010, the district court indicated that it would have

imposed a non-consecutive sentence if free to do so under the statute. See Order, United

States v. Mejia, No. 05 Cr. 953 (RMB), ECF No. 371 (S.D.N.Y. Aug. 26, 2010).

       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. We now review Mejia’s

sentencing challenge with the benefit of the Supreme Court’s November 15, 2010 resolution

of the issue in Abbott v. United States, 131 S. Ct. 18.

II.    Discussion

       Title 18 U.S.C. § 924(c)(1)(A) states as follows:

                                              4
       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 id. § 924(c)(1)(D)(ii).1

       Construing § 924(c)(1)(A) in United States v. Whitley, 529 F.3d 150, this court

concluded that the statute’s “except” clause “means what it literally says,” i.e., that a



       1
           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.

                                                5
mandatory minimum consecutive sentence under that statute does not apply where “a greater

minimum sentence is otherwise provided by . . . any other provision of law.” Id. at 153

(quoting 18 U.S.C. § 924(c)(1)(A)).       In Whitley, the defendant had been sentenced

principally to concurrent terms of 282 months’ imprisonment for Hobbs Act robbery, see 18

U.S.C. § 1951, and Armed Career Criminal Act (“ACCA”) firearm possession, see id.

§§ 922(g)(1), 924(e), plus a consecutive mandatory minimum term of 120 months’

imprisonment for discharge of a firearm in relation to a crime of violence, see id.

§ 924(c)(1)(A)(iii). The court held that the plain meaning of the § 924(c)(1)(A) “except”

clause exempted the defendant from a mandatory consecutive sentence of ten years for

discharging a firearm because he was already subject to a higher fifteen-year mandatory

minimum sentence on the ACCA firearm count. See United States v. Whitley, 529 F.3d at

158 (vacating and remanding for resentencing).

       The following year, this court concluded that Whitley compelled the identification of

plain error in the imposition of a mandatory minimum consecutive five-year sentence

pursuant to § 924(c)(1)(A)(i) where the predicate drug trafficking crime carried a higher ten-

year mandatory minimum pursuant to 21 U.S.C. § 841(b)(1)(A). See United States v.

Williams, 558 F.3d at 170. Rejecting the government’s argument that Whitley should be

limited to its facts, i.e., to cases where the predicate crime was also a firearms offense,

Williams reasoned that if Congress had intended the “except” clause to reference only

mandatory minimum terms for firearms offenses, it would have been unnecessary to include

the “by any other provision of law” phrase in the “except” clause. See id. at 171. Williams

                                              6
concluded that the “except” clause applied to any statute imposing a higher mandatory

minimum sentence for an offense “arising from the same criminal transaction or operative

set of facts” as the § 924(c) crime. Id.

       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?”

Id. at 26 (emphasis in original). The answer, the Court decided, is “for the conduct § 924(c)

itself proscribes, i.e., possessing a firearm in connection with a predicate crime.” Id. 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.” Id. at 23 (emphasis added).

       In reaching this conclusion, the Supreme Court expressly rejected what it deemed the

“transactional approach” to § 924(c)(1)(A)’s “except” clause exemplified by our decision in

Williams. See id. at 26 (citing United States v. Williams, 558 F.3d at 171).2 Further,

although the Court did not reference explicitly Whitley, it effectively abrogated that decision

by declining Abbott’s invitation alternatively to construe the “except” clause to reach at least




       2
        After deciding Abbott, the Supreme Court granted certiorari in Williams, vacated
the judgment, and remanded the case to this court, see United States v. Williams, 131 S. Ct.
632 (2010), where it remains pending.

                                               7
other firearm offenses involving the same firearm at issue in the § 924(c) crime.3 See id.

The Court dismissed as “implausible” the premise it found implicit in the alternative

interpretations urged by Abbott (and endorsed by Williams and Whitley), i.e., that in adding

the “except” clause as part of a 1998 amendment entitled “An Act to throttle criminal use of

guns,” 112 Stat. 3469, Congress intended to “adopt[] a less aggressive mode of applying §

924(c), one that significantly reduced the severity of the provision’s impact on defendants.”

Abbott v. United States, 131 S. Ct. at 26-27. The Court observed that the proposed

constructions resulted in “sentencing anomalies,” and it was not convinced – as our court had

been in Whitley, 529 F.3d at 155 – that Congress contemplated that these anomalies could

be “cure[d]” through the exercise of district court sentencing discretion under 18 U.S.C.

§ 3553(a) or a Guidelines firearm sentencing enhancement. See Abbott v. United States, 131

S. Ct. at 27-29.4




       3
        Like the defendant in Whitley, Abbott was convicted, inter alia, of a § 924(c) count
and ACCA firearm possession under 18 U.S.C. §§ 922(g), 924(e). The district court
sentenced Abbott to the mandatory fifteen-year term of imprisonment under ACCA and to
a consecutive five-year term under § 924(c). See Abbott v. United States, 131 S. Ct. at 23.
In upholding Abbott’s sentence, the Supreme Court necessarily rejected our construction of
the “except” clause in Whitley.
       4
         The Supreme Court observed, for example, that under the expansive interpretations
of the “except” clause urged by Abbott, a defendant facing a five-year mandatory sentence
for distributing a small quantity of drugs would face an additional mandatory seven-year
sentence under § 924(c)(1)(A)(ii) if he brandished a firearm (for a combined twelve-year
term of imprisonment), whereas a defendant who brandished a firearm in the course of
distributing a larger quantity of drugs triggering a ten-year mandatory sentence would be
saved from the consecutive seven-year sentence by the “except” clause. See Abbott v.
United States, 131 S. Ct. at 27.

                                             8
       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. See id. at 29. 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. Id. at 29-30. With respect to this

latter point, the Court acknowledged that only one statute would presently fall within the

ambit of the § 924(c) “except” clause, i.e., 18 U.S.C. § 3559(c) (providing for life sentence

for certain repeat violent felons convicted, inter alia, of “firearms possession (as described

in section 924(c))”). See Abbott v. United States, 131 S. Ct. at 30. Nevertheless, the Court

observed that the “any other provision of law” phrase serves as a “safety valve” in the event

that Congress should enact other statutes, akin to § 3559(c), mandating higher minimum

sentences when conduct already proscribed by § 924(c) is engaged in under aggravating

circumstances. Id. at 30-31.

       Because neither Whitley nor Williams interpreted the “any other provision of law”

segment of the “except” clause as limited to statutes that impose a higher mandatory


                                              9
minimum for conduct proscribed by § 924(c), i.e., possession, brandishing, or discharge of

a firearm in connection with a drug trafficking crime or a crime of violence, we now

conclude that these decisions are abrogated by Abbott. Mejia relies exclusively on Williams

to challenge his consecutive § 924(c)(1)(A) sentence. He does not – and cannot – assert that

he stands convicted under “another provision of law directed to conduct proscribed by

§ 924(c) [that] imposes an even greater mandatory minimum.” Id. at 23. 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 ten-

year mandatory minimum sentences imposed for the predicate drug trafficking crimes.




III.   Conclusion

       To summarize, we conclude as follows:

       1. This court’s decisions in United States v.Whitley, 529 F.3d 150, and United States

v. Williams, 558 F.3d 166, construing the “except” clause of 18 U.S.C. § 924(c)(1)(A), are

abrogated by the Supreme Court’s decision in Abbott v. United States, 131 S. Ct. 18.

       2. Because defendant does not stand convicted under both § 924(c) and another

provision of law directed to conduct proscribed by § 924(c), he cannot claim the benefit of


                                            10
that statute’s exception to its otherwise mandatory minimum consecutive sentence. The

district court was statutorily obliged to impose a sentence of 60 months’ imprisonment

pursuant to § 924(c)(1)(A)(i) consecutive to the mandatory minimum sentence of 120

months’ imprisonment for drug trafficking.

      The judgment of conviction is AFFIRMED.




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