U.S.A v. Tejada, Docket No. 07-3419-cr (L)

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: United States of America, Appellee, v. Jose Tejada, Jose Luis Mejia, Jose Avile, Defendants-Appellants*
• Docket Number: Docket No. 08-2665-cr (CON),Docket No. 07-5289-cr (CON),Docket No. 07-3419-cr (L)
• Decision Date: 09 February 2011

United States of America, Appellee,
v.
Jose Tejada, Jose Luis Mejia, Jose Avile, Defendants-Appellants^*

Docket No. 07-3419-cr (L)
Docket No. 07-5289-cr (CON)
Docket No. 08-2665-cr (CON)

UNITED STATES COURT OF APPEALS
For the Second Circuit

August Term, 2009
Argued: September 24, 2009
Decided: February 9, 2011

Before: Leval, Raggi, Circuit Judges, and Gleeson, District Judge.^**

Page 2

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

Page 3

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.

Page 4

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:

Page 5

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

...