08-2834-cr
United States v. Garcia (Praylow)




                           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 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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 6th day of April, two thousand eleven.

PRESENT:
            RALPH K. WINTER,
            PETER W. HALL,
                        Circuit Judges,
            MIRIAM GOLDMAN CEDARBAUM,
                        District Judge.*
__________________________________________

United States of America,

                             Appellee,

                   v.                                               Docket No. 08-2834-cr

Rory Praylow, also known as Dog,

                  Defendant-Appellant.
__________________________________________




         *
         The Honorable Miriam Goldman Cedarbaum of the United States District Court for the
Southern District of New York, sitting by designation.

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FOR APPELLANT: PAUL J. MADDEN; Brooklyn, New York.

FOR APPELLEE:          ELIE HONIG, Katherine Polk Failla, Assistant United States Attorneys, of
                       counsel, for Preet Bharara, United States Attorney for the Southern
                       District of New York.

       On remand from the Supreme Court of the United States. UPON DUE

CONSIDERATION it is hereby ORDERED, ADJUDGED, AND DECREED that the

judgment of the district court is AFFIRMED.

       Defendant-Appellant Rory Praylow pled guilty to conspiracy to distribute and possess

with intent to distribute heroin, see 21 U.S.C. § 846, distribution and possession with intent to

distribute heroin, see 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and possession of a firearm in

furtherance of a narcotics trafficking crime, see 18 U.S.C. § 924(c). Praylow appealed, arguing

that his aggregate 180-month sentence, consisting of two concurrent 120-month sentences on the

narcotics counts and one consecutive 60-month sentence for the guilty plea on the firearms

count, was plain error under 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), because the district court

concluded that his mandatory minimum sentence of 60 months’ incarceration for his § 924(c)

conviction must run consecutively to his sentence on his narcotics conviction under 21 U.S.C. §

841(a), even though the latter conviction carried a mandatory minimum of 120 months’

imprisonment. See 21 U.S.C. § 841(b)(1)(A). In June 2010, we vacated and remanded

Praylow’s sentence, holding that under Williams and Whitley, the district court retained

discretionary authority to impose a consecutive sentence consistent with its responsibility under

18 U.S.C. § 3553. Thereafter, the United States petitioned the Supreme Court for a writ of

certiorari. In March 2011, the Supreme Court granted the writ of certiorari, vacated the decision


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of this Court, and remanded the case for further consideration in light of Abbott v. United States,

131 S. Ct. 18 (2010). We assume familiarity with the facts and procedural history, which we

reference only as necessary to explain our decision.

       Title 18 U.S.C. § 924(c)(1)(A) criminalizes the use or carrying of a firearm during and in

relation to a crime of violence or a drug trafficking crime and imposes specified mandatory

minimum terms of incarceration in addition to the punishment provided for the underlying crime

“[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection

or by any other provision of law.” In Whitley, 529 F.3d 150, we interpreted this “except” clause

to mean that a mandatory minimum sentence prescribed under § 924(c) need not run

consecutively to any greater mandatory minimum sentence. See id. at 153. In Williams, 558

F.3d 166, we extended Whitley, holding that a district court’s contrary interpretation of § 924(c)

constituted plain error. See id. at 169 n.2, 176. In Abbott, however, the Supreme Court declined

to construe the § 924(c)(1)(A) “except” clause consistent with our decisions in Whitley and

Williams, holding instead that the clause meant 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.”

Abbott, 131 S. Ct. at 23. We have since recognized that both Whitley and Williams were

“abrogated” by Abbott. United States v. Tejada, 631 F.3d 614, 619 (2d Cir. 2011).

       Accordingly, based on Abbott and Tejada, the district court was correct in its 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




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on Praylow’s controlled substances offenses. We therefore AFFIRM the judgment of the

district court.


                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk




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