     07-5289-cr
     U.S.A. v. Valentin (Mejia)

 1                                UNITED STATES COURT OF APPEALS
 2                                    FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 8   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 9   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
10   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
11   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
13   COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 9th
17   day of February, two thousand ten.
18
19   Present:
20              Pierre N. Leval,
21              Reena Raggi,
22                            Circuit Judges,
23              John Gleeson,*
24                            District Judge.
25
26   ________________________________________________
27
28   United States of America,
29
30              Appellee,
31
32                     v.                                            No. 07-3419-cr (L)
33                                                                   No. 07-5289-cr (CON)
34   Jose Tejada, Jose Luis Mejia, Jose Avile,                       No. 08-2665-cr (CON)
35
36              Defendants-Appellants.
37
38   ________________________________________________
39

            *
            The Honorable John Gleeson of the United States District Court for the Eastern District
     of New York, sitting by designation.
 1   For Defendant-Appellant:           MARSHA R. TAUBENHAUS, New York, NY
 2
 3   For Appellee:              REED M. BRODSKY , Assistant United States Attorney (Daniel
 4                              A. Braun, Assistant United States Attorney, on the brief), for
 5                              Lev L. Dassin, Acting United States Attorney for the Southern
 6                              District of New York, New York, NY
 7   ________________________________________________
 8
 9          Appeal from the United States District Court for the Southern District of New York
10
11   (Berman, J.).
12
13          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

14   DECREED that the matter is REMANDED to the district court for response to this court’s

15   inquiry.

16          Jose Luis Mejia appeals from a judgment of conviction entered by the United States

17   District Court for the Southern District of New York (Berman, J.), following Mejia’s guilty plea

18   to one count of conspiring to distribute, and possess with intent to distribute, at least one

19   kilogram of heroin, in violation of 21 U.S.C. § 846; one count of distributing, and possessing

20   with intent to distribute, at least one kilogram of heroin, in violation of 21 U.S.C. §§ 812, 841;

21   and one count of using or possessing a firearm in furtherance of a drug trafficking crime, in

22   violation of 18 U.S.C. § 924(c)(1)(A)(i). Mejia was sentenced to concurrent terms of 120

23   months’ imprisonment on each of the narcotics counts, and a consecutive term of sixty months’

24   imprisonment on the firearm count. We assume the parties’ familiarity with the underlying facts,

25   the procedural history of the case, and the issues on appeal.

26          Mejia argues that his case should be remanded for resentencing pursuant to United States

27   v. Williams, 558 F.3d 166 (2d Cir. 2009), which was decided after he was sentenced. In

28   Williams, this court held that the mandatory five-year consecutive sentence provided by 18

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 1   U.S.C. § 924(c) does not apply when the defendant is subject to a longer mandatory minimum for

 2   the predicate drug trafficking offense. Id. at 167-68.**

 3             Mejia argues that the district judge would have sentenced him to a shorter term of

 4   imprisonment, had the judge foreseen this court’s subsequent ruling in Williams and realized that

 5   he was not required to impose a consecutive five-year sentence under section 924(c). Mejia

 6   contends this inference is supported by the fact that the court sentenced him to the minimum

 7   permissible term under the court’s understanding of the law prior to Williams, and to a term

 8   which was below the Guidelines range calculated in the Probation Office’s presentence report.

 9             Pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.

10   1994), we hereby remand the case for the district judge to clarify whether he would have

11   sentenced Mejia to a shorter term of imprisonment had he understood that he was permitted to do

12   so. Within ten days of the district court’s filing of its written response to this inquiry, either party

13   to the proceedings may restore the case to this panel by giving notice to the Clerk of the Court.

14   See id.

15             The matter is hereby REMANDED to the district court for response to this court’s

16   inquiry.

17
18                                                       FOR THE COURT:
19                                                       CATHERINE O’HAGAN WOLFE, CLERK
20

21




               **
              We note that the Supreme Court recently granted certiorari in a Third Circuit case
     addressing this issue. See United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, 78
     U.S.L.W. 3437 (U.S. Jan. 25, 2010) (No. 09-479) (holding that section 924(c) requires
     imposition of a consecutive five-year sentence, even when the defendant is subject to a higher
     mandatory minimum for the predicate drug trafficking offense).

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