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March 11, 2009 -- (US)

2nd Circuit Clarifies Consecutive Mandatory Minimum Sentencing

By Mark Hamblett

Return to Drug War News: Don't Miss Archive


A defendant who is subject to a 10-year mandatory minimum sentence for drug trafficking is exempt from a five-year minimum for a firearms offense if the crimes occurred together, the 2nd U.S. Circuit Court of Appeals has ruled.

The circuit, rejecting the arguments of prosecutors, said the five-year minimum for guns is inapplicable where the drug trafficking offense "is part of the same transaction or set of operative facts as the firearms offense."

The appeal in United States v. Williams, 07-2436-cr, was decided by 2nd Circuit Judges Rosemary Pooler and Peter Hall and Eastern District of New York Judge David Trager, sitting by designation.

Williams raised an issue on the scope of a 2008 2nd Circuit ruling in a case where a man was arguably subject to two mandatory minimums for gun offenses arising from the same armed robbery.

In United States v. Whitley, 529 F.3d 150 (2008), the defendant was convicted under both the Armed Career Criminal Act for being in possession of a firearm while having three prior convictions (a 15-year mandatory minimum) and for discharging a firearm in relation to a crime of violence, which carries a 10-year mandatory minimum.

In Whitley, the circuit was called upon to interpret the "except" clause of §941(c)(1)(A), which states: "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or any other provision of law," a defendant who uses a gun in a violent or drug trafficking crime must be sentenced to five years in prison. If the defendant brandished the gun, it calls for a seven-year sentence and, if the gun was discharged, it is 10 years behind bars.

The Whitley court said the "except" clause "means what it literally says" -- that the minimum does not apply where a greater minimum is required by "any other provision of law."

In the case of Leon Williams, the prosecution argued that the reasoning of Whitley should be confined to the facts of Whitley, where a defendant faces two consecutive mandatory minimums for the use of a single gun.

Williams drew the attention of New York City police officers while urinating near a car on the side of the road on Feb. 27, 2006. While searching the car, the officers found a loaded gun and 180 small bags of powder and crack cocaine.

Southern District of New York Judge Leonard Sand ordered that Williams serve the 10-year mandatory for drug trafficking under 21 U.S.C. §841(b)(1)(A) consecutively with the five-year mandatory under §924(c)(1)(A). All told, Williams was given a prison sentence of 16 years and three months.

At the 2nd Circuit, Assistant U.S. Attorneys Anjan Sahni and William J. Harrington represented the government.

B. Alan Seidler represented Williams; Lewis J. Liman and Michael J. Byars of Cleary Gottlieb Steen & Hamilton filed as amicus curiae on behalf the defendant pro bono.

The circuit reversed, with Judge Pooler writing that the court was unpersuaded by the government's position that the "except" clause was ambiguous.

"The government argues that its interpretation is required by the statutory text and structure, the legislative history, and to avoid illogical applications of the statute," Pooler said. "We conclude that to accept the government's position would contravene the reasoning and result of Whitley."

Pooler cited the brief filed by amicus for the argument that "there is no indication in the statutory language that Congress intended to be more lenient to defendants with multiple convictions for firearms-related conduct than to defendants convicted of drug trafficking crimes or other violent offenses, or that it intended to draw any distinction among offenses subject to minimum sentences."

Pooler said, "To be sure, the general rule of §924(c) is that its penalties are cumulative."

But, she said, the "except" clause "is an exception to that rule. The government would have the rule swallow the exception."

The court remanded the case to Judge Sand to determine whether he would have given a different sentence based on the disparity between sentencing for crack and powder cocaine.

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