United States v. Wallace, Docket No. 03-1777 (L) (2d Cir. April 27, 2006) (Walker, Cardamone, Parker): The Circuit disposes of most of Wallace and co-defendant Thomas’s challenges to their conviction and life sentences (imposed on the drug conspiracy and murder-during-a-drive-by-shooting counts) in a simultaneously issued summary order. In this published decision, the Court vacates one of two § 924(c) convictions, applying the rule adopted in United States v. Finley, 245 F.3d 199, 207-08 (2d Cir. 2001) (“[C]ontinuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct” amounts to a single unit of prosecution, and thus only one § 924(c) conviction is sustainable). The application of Finley to the facts of this case is questionable — the predicates for the two § 924(c) counts were an arguably distinct drug conspiracy and a drive-by-shooting (committed after the unfortunate victim stole drugs from the defendants). But who are we to quibble; those interested in finding out whether the predicate offenses were indeed “so inseparably intertwined” as to trigger the Finley rule can consult pages 7-10 of the opinion.
Though the decision may be of use to future litigants, it is meaningless to Wallace and Thomas. Not only were they sentenced to life imprisonment on other, unaffected counts; even regarding the two § 924(c) counts (one of which must now be vacated), while the sentencing judge imposed a 10-year sentence on each because the weapon was discharged, see 18 U.S.C. § 924(c)(1)(A)(iii), he ran the sentences concurrently (a no-no under § 924(c)(1)(D)(ii), see Op. 11). The sole benefit to the defendants from their victory in the Circuit, therefore, is a $100 savings in the special assessment.
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