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 mandatory minimum sentence for gun possession – in that case a 15-year Armed Career Criminal Act sentence. Williams held that the § 924(c) sentence did not apply if the defendant, as here, received a higher mandatory minimum sentence for drug trafficking.

But Abbott held that the “except” clause in § 924(c) related only to “the conduct § 924(c) itself proscribes, i.e., possessing a firearm in connection with a predicate crime.” Under Abbott, the exemption from the § 924(c) sentence only applies where the defendant is subject to an “even greater mandatory minimum” under § 924(c). Since that was not the case for the defendant here, the circuit affirmed.