Archive | 924(c)

Wednesday, August 3rd, 2016

An Uphill Battle

United States v. Elvin Hill, No. 14-3872-cr (Circuit Judges: Jacobs, Livingston, and Droney).(Disclosure: This is an appeal that this Office litigated).

In this direct appeal,  Mr.  Hill argued: (1)  that Hobbs Act robbery (18 U.S.C. § 1951) did not “categorically” constitute a “crime of violence” under the “force” clause of 18 U.S.C. § 924(c)(3);  and (2) that Johnson v. United States, 135 S.Ct. 2551 (2015)  applied to the residual clause of  § 924(c)(3), which is worded similarly to that of the ACCA statute — 18 U.S.C.. § 924(e)(2)(B) — and that Johnson rendered 924(c)(3)’s residual void for vagueness. Both claims were rejected by the Circuit.

The Cateqorical approach: The Circuit stated that it was applying the “categorical approach” in determining whether the predicate crime (the Hobbs Act robbery) was a “crime of violence” under §924(c).  The categorical approach looks only to the statutory definition of the predicate …


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Johnson (Bad) News:

Today, the Circuit  decided  Hill adverse to the defendant. It holds that Hobbs Act Robbery is “categorically” a “Crime of Violence” under 18 U.S.C.§ 924(c)(3).  It also holds that Johnson does not apply to § 924(c): i.e., it does not  “effectively render[]  the ‘risk-of-force clause’” of § 924(c) “void for vagueness.” United States v. Elvin Hill, No. 14-3872-cr (Jacobs, Livingston, and Droney).

We are still digesting the Opinion. More will follow.  But defense counsel will still have to raise and litigate these claims until the Supreme Court decides the issue. The Government already has a cert petition pending with the Supreme Court  based on defendant wins in the Ninth Circuit and two other circuits. This Second Circuit case clearly creates a split that the Supreme Court will most likely take on.…


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Wednesday, June 15th, 2016

Circuit Affirms Life Sentence for Leader of Violent Drug Trafficking Organization

There were no published opinions today.

In an unpublished opinion, United States v. Fernandini, No. 14-2203, the Second Circuit affirmed a within-Guidelines life sentence for the leader of a violent drug trafficking organization over procedural and substantive reasonableness challenges.

Fernandini pleaded guilty to (i) conspiracy to traffic narcotics; (ii) using a firearm to commit murder in furtherance of the conspiracy, 18 U.S.C. § 924(j)(1); and (iii) discharging the firearm in furtherance of the conspiracy, § 924(c)(1)(A)(iii). In affirming, the Circuit noted that “Fernandini was the leader of a notorious and ruthless gang for nearly a decade.  As gang leader, he significantly increased the quantity of narcotics the organization imported and enforced the organization’s territory with violence, including killing or ordering the killing of rival gang members.”

On the government’s consent, however, the Circuit vacated the § 924(c)(1)(A)(iii) discharging count, as it was a lesser included offense of the § …

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Saturday, August 27th, 2011

PC World

United States v. Echeverry, No. 10-2828-cr (2d Cir. August 19, 2011) (Winter, Parker, Chin, CJJ) (per curiam)

The facts of this latest per curiam could have been pulled straight from a law school exam. During an ongoing narcotics conspiracy, Echeverry and his accomplice attempted to recover stolen narcotics from a third person; they possessed and brandished a gun but, during the incident, the intended victim grabbed it and discharged it, wounding the accomplice.

The issue was whether Echeverry should get the seven-year brandishing § 924(c) sentence or the ten-year discharge § 924(c) sentence. The district court gave him the longer sentence, holding that if a defendant possesses a firearm during a drug-trafficking offense he is responsible for a subsequent discharge of that firearm, no matter who fires it.

The circuit affirmed. The statute provides that the enhanced sentence applies “if the firearm is discharged,” and “does not require that the …

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Saturday, February 19th, 2011

Abbott Hole

United States v. Tejada, No. 07-5289-cr (2d Cir. February 9, 2011) (Leval, Raggi, CJJ, Gleeson, CJ)

The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court’s decisions in Williams and Whitley. And indeed it was. However, as this decision recognizes, those cases were abrogated by the Supreme Court in Abbot v. United States, 131 S.Ct. 18 (2010).

At issue is an inscrutable phrase in § 924(c): “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law,” a person convicted of violating § 924(c) must receive a specified mandatory minimum sentence and that sentence must be consecutive to any other term of imprisonment. Whitley held that this language meant that the § 924(c) sentence did not apply if the defendant received a higher …

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Saturday, March 13th, 2010

Glock-In-Trade

United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010)(Feinberg, Katzmann, CJJ, Castel, DJ)

18 U.S.C. § 924(c)(1)(A) makes it a crime to possess a firearm in furtherance of a drug trafficking crime. Here, the defendants challenged the applicability of this section in their case, where they purchased firearms using drugs as payment.

The trial evidence showed that the defendants acquired two firearms and paid for them with drugs, specifically an “onion” – one ounce of crack cocaine. They instructed the gun seller to sell the crack and give them $200 – the difference between the value of the drugs and that of the guns.

In affirming, the circuit began with a bit of history. The pre-1998 § 924(c) did not have an “in furtherance” requirement. It made it a crime only to use or carry a firearm “during and in relation to” a drug trafficking offense. Under that …

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Monday, August 17th, 2009

Same S***, Different Day

United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)

Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count. On appeal, he argued that under United States v. Williams, 558 F.3d 166 (2d Cir. 2009) and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), he was ineligible for the § 924(c) sentence. The circuit affirmed, because conduct underlying the drug count that carried the ten-year mandatory minimum and that underlying the § 924(c) count occurred on different dates.

Parker was charged in a multi-count indictment that covered several different dates. As pertinent here, the § 924(c) count (Count One), charged that Parker used or possessed a gun in connection with a crack sale (Count Two), a violation of 21 U.S.C. § 841(b)(1)(C), that carried …

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Saturday, March 14th, 2009

Off-Whitley

United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)

Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except “to the extent that a greater minimum sentence is otherwise provided by … any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir. 2008), the defendant received a fifteen-year mandatory minimum under the Armed Career Criminal Act, and a five-year consecutive 924(c) sentence. The court held that the “except” clause exempted the defendant from the 924(c) sentence, since he was subject to a greater minimum on the ACCA count. Whitley left open whether the “except” clause applied to non-firearms offenses. Here, a different panel, following Whitley, answered that question with a resounding …

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Monday, December 8th, 2008

Run-On Sentence

United States v. Chavez, No. 05-4679-cr (2d Cir. December 8, 2008) (Kearse, Calabresi, Sack, CJJ)

Jaime Chavez was convicted after a jury trial of a drug conspiracy and a § 924(c) offense, and faced a 50-year mandatory minimum: due to a prior conviction there was a 20-year minimum on the drug charge; and, because the gun had a silencer, he faced a 30-year mandatory consecutive sentence for the gun. The guidelines recommended a minimum sentence of 60 years; 30 for the drugs plus 30 for the gun, and the district court sentenced him to 55 years.

Chavez had asked the court to shorten the sentence on the drug charge in light of the long sentence he faced for the gun, but the district court concluded that it could not lawfully do this. Rather, the court independently selected 25 years as the appropriate sentence for the drug conspiracy, then imposed the …

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Friday, May 9th, 2008

Yanni, Get Your Gun

United States v. Desinor, No. 05-4500-cr (2d Cir. May 8, 2008) (Walker, Straub, Hall, CJJ)

This prosecution arose from a murderous rivalry between two drug gangs. One, the “Cream Team” (footnote 1 of the opinion, which explains the derivation of this name, is a must-read), was populated largely by the defendants on trial. The rival gang sold drugs out of a neighboring building, and was run by a dealer named Yanni. The appeal raised two issues of first impression relating to jury instructions in homicide cases. The court affirmed on those issues, but one defendant won a partial resentencing.

The Homicide

The trial evidence revealed that members of the Cream Team shot and killed Yanni’s cousin, and that this shooting was the culmination of a period of escalating acts of violence between the two groups. On the day of the shooting, heavily armed Cream Team members were looking for Yanni …


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