United States v. Vasquez (Julio de la Cruz)

413 F. App'x 338

• Court: Court of Appeals for the Second Circuit
• Decided: February 14, 2011
• Docket: 07-0841-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Appellant appeals from an order of the United States District Court for the Southern District of New York (Jones, J.), declining to resentence him on a Crosby remand from this court. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Appellant was convicted in the Southern District of New York in 2003 on four counts, including one count of conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846, one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)®, and one count of possession and use of a firearm in furtherance of a narcotics conspiracy in violation of 18 U.S.C. § 924(c)(1)(A)®. In drafting the presentence report, the Probation Department interpreted Section 924(c) as requiring a mandatory five year consecutive sentence. In March 2004, Judge Jones adopted the Department’s calculation, sentencing Appellant to 188 months’ imprisonment on the other three counts, to be followed by 60 months’ imprisonment to be served consecutively on the firearms count.

In November 2004, this Court rejected Appellant’s challenge to his sentence, but withheld its mandate pending decision of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After Booker was decided, this Court remanded the case to the district court for possible resentencing. In January 2007, Judge Jones issued an order declining to resentence Appellant. Appellant appeals from this order. His only potentially meritorious claim on appeal, based on the “except” clause of 18 U.S.C. § 924(c)(1)(A), is foreclosed by a recent Supreme Court case, as recognized by this Court.

The Supreme Court has abrogated the interpretation of the “except clause” reached by our precedents United States v. Williams, 558 F.3d 166 (2d Cir.2009), and United States v. Whitley, 529 F.3d 150 (2d Cir.2008). Abbott v. United States, — U.S. -, 131 S.Ct. 18, 23 n. 2, 26, 178 L.Ed.2d 348 (2010); see also United States v. Tejada, 631 F.3d 614, 617-619 (2d Cir. 2011) (acknowledging that Abbott abrogates Williams explicitly and Whitley im plicitly). The appellant in Tejada relied on Williams to challenge his consecutive Section 924(c)(1)(A) sentence, and after Abbott, Williams could not assist him in such a challenge. Id. at 619. In the instant case, Appellant’s challenge to his consecutive Section 924 sentence is similarly foreclosed by Abbott. We have considered Appellant’s remaining arguments, and find them without merit.

For the foregoing reasons, the order of the district court is hereby AFFIRMED.