         07-0841-cr
         USA v. Vasquez (Julio de la Cruz)

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14th day of February, two thousand eleven.
 5
 6       PRESENT: PIERRE N. LEVAL,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12       UNITED STATES OF AMERICA,
13
14                                     Appellee,
15
16                      -v.-                                                07-0841-cr
17
18       JULIO DE LA CRUZ,
19
20                                     Defendant-Appellant.
21
22
23       FOR APPELLANT:                JONATHAN I. EDELSTEIN (Robert M.
24                                     Grossman, of counsel), New York, NY.
25
26       FOR APPELLEE:                 PREET BHARARA, United States Attorney for
27                                     the Southern District of New York (Rachel
28                                     P. Kovner & Iris Lan, Assistant United
29                                     States Attorneys, of counsel), New York,
30                                     NY.
31
32            Appeal from the United States District Court for the
33       Southern District of New York (Jones, J.).
1        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

2    AND DECREED that the order of the district court be

3    AFFIRMED.

4        Appellant appeals from an order of the United States

5    District Court for the Southern District of New York (Jones,

6    J.), declining to resentence him on a Crosby remand from

7    this court.   We assume the parties’ familiarity with the

8    underlying facts, the procedural history, and the issues

9    presented for review.

10       Appellant was convicted in the Southern District of New

11   York in 2003 on four counts, including one count of

12   conspiracy to distribute five or more kilograms of cocaine

13   in violation of 21 U.S.C. § 846, one count of conspiracy to

14   commit money laundering in violation of 18 U.S.C. §

15   1956(a)(1)(B)(I), and one count of possession and use of a

16   firearm in furtherance of a narcotics conspiracy in

17   violation of 18 U.S.C. § 924(c)(1)(A)(I).   In drafting the

18   presentence report, the Probation Department interpreted

19   Section 924(c) as requiring a mandatory five year

20   consecutive sentence.   In March 2004, Judge Jones adopted

21   the Department’s calculation, sentencing Appellant to 188

22   months’ imprisonment on the other three counts, to be


                                   2
1    followed by 60 months’ imprisonment to be served

2    consecutively on the firearms count.

3        In November 2004, this Court rejected Appellant’s

4    challenge to his sentence, but withheld its mandate pending

5    decision of United States v. Booker, 543 U.S. 220 (2005).

6    After Booker was decided, this Court remanded the case to

7    the district court for possible resentencing.     In January

8    2007, Judge Jones issued an order declining to resentence

9    Appellant.   Appellant appeals from this order.    His only

10   potentially meritorious claim on appeal, based on the

11   “except” clause of 18 U.S.C. § 924(c)(1)(A), is foreclosed

12   by a recent Supreme Court case, as recognized by this Court.

13       The Supreme Court has abrogated the interpretation of

14   the “except clause” reached by our precedents United States

15   v. Williams, 558 F.3d 166 (2d Cir. 2009), and United States

16   v. Whitley, 529 F.3d 150 (2d Cir. 2008).    Abbott v. United

17   States, 131 S. Ct. 18, 23 n.2, 26 (2010); see also United

18   States v. Tejada, No. 07-5289, 2011 WL 420670 at *3 (2d Cir.

19   Feb. 9, 2011) (acknowledging that Abbott abrogates Williams

20   explicitly and Whitley implicitly).    The appellant in Tejada

21   relied on Williams to challenge his consecutive Section

22   924(c)(1)(A) sentence, and after Abbott, Williams could not


                                   3
1    assist him in such a challenge.   Id. at *4.   In the instant

2    case, Appellant’s challenge to his consecutive Section 924

3    sentence is similarly foreclosed by Abbott.    We have

4    considered Appellant’s remaining arguments, and find them

5    without merit.

6        For the foregoing reasons, the order of the district

7    court is hereby AFFIRMED.

 8
 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




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