09-1308-cr
United States v. Huckabee

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 9 th day of June, two thousand ten.

PRESENT:         JON O. NEWMAN,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                         Circuit Judges.
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UNITED STATES OF AMERICA,
                         Appellant,

                     v.                                                    No. 09-1308-cr

JOSHUA HUCKABEE,
                         Defendant-Appellee.
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APPEARING FOR APPELLANT:                          JAMES R. SMART, Assistant United States
                                                  Attorney (William J. Nardini, Assistant United
                                                  States Attorney, of counsel), for Nora R.
                                                  Dannehy, United States Attorney for the District
                                                  of Connecticut, New Haven, Connecticut.

APPEARING FOR APPELLEE:                           FRANCIS L. O’REILLY, O’Reilly & Shaw,
                                                  LLC, Southport, Connecticut.

          Appeal from the United States District Court for the District of Connecticut (Peter C.

Dorsey, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the March 18, 2009 judgment of the district court is AFFIRMED.

       Defendant Joshua Huckabee pleaded guilty to possession with intent to distribute 50

grams or more of cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(A); possession of a firearm

in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(i); and possession

of a firearm by a convicted felon, see id. §§ 922(g)(1), 924(a)(2). On appeal, the United

States challenges the district court’s decision to run 60-month prison sentences on each of

the firearms counts concurrently with each other and with the 120-month mandatory sentence

on the drug count. To the extent the district court based its decision on United States v.

Williams, 558 F.3d 166 (2d Cir. 2009), the government contends that Williams was wrongly

decided.

       Title 18 U.S.C. § 924(c), which criminalizes using or carrying a firearm during or in

relation to a crime of violence or a drug trafficking crime, requires a mandatory minimum

term of incarceration over and above any sentence imposed based on 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.” 18 U.S.C. § 924(c)(1)(A). In United States v.

Whitley, 529 F.3d 150, 158 (2d Cir. 2008), we interpreted this “except” clause to mean that

a mandatory minimum sentence imposed under § 924(c) need not run consecutively to a

greater mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). In Williams, we declined to confine Whitley to cases where the greater mandatory



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minimum was itself provided in § 924, instead concluding that the § 924(c) “except” clause

applied to any greater mandatory minimum, including those prescribed in 21 U.S.C.

§ 841(b)(1)(A). See United States v. Williams, 558 F.3d at 171.

       The issue has split the circuits, and the United States has petitioned for a writ of

certiorari in Williams. See 78 U.S.L.W. 3254 (U.S. Oct. 20, 2009) (No. 09-466). In fact, the

Supreme Court has granted certiorari in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009),

cert. granted, 130 S. Ct. 1284 (2010), and United States v. Gould, 329 F. App’x 569 (5th Cir.

2009), cert. granted, 130 S. Ct. 1283 (2010), which adopt constructions of the § 924(c)

mandate that differ from ours. Nevertheless, in the absence of contrary controlling authority

from the Supreme Court, our precedents require affirmance. See United States v. Jass, 569

F.3d 47, 58 (2d Cir. 2009) (noting panel “is bound by prior decisions of this court unless and

until the precedents established therein are reversed en banc or by the Supreme Court”).

       The judgment of the district court is AFFIRMED.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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