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 no mandatory minimum sentence. Both Count One and Count Two alleged conduct that occurred on July 19, 2002.
Count Five of the indictment alleged additional crack activity occurring April 30 to May 1, 2002, and charged a violation of 21 U.S.C. § 841(b)(1)(B). This count carried a ten-year mandatory minimum – the usual (b)(1)(B) five-year term, doubled due to Parker’s prior drug felony conviction. Since § 924(c) requires that the five-year mandatory minimum be imposed consecutive to any other sentence imposed on the defendant, the district court found that Parker was subject to a 180-month mandatory minimum, and imposed that sentence.
On appeal, the circuit affirmed. While it is true that Williams holds that a § 924(c) sentence cannot be imposed on a defendant who faces a higher drug-related mandatory minimum, the circuit distinguished Williams because, here, “the predicate drug crime underlying Parker’s [§ 924(c)] conviction [did] not dictate a mandatory minimum sentence.” The drug offense that carried the mandatory minimum occurred on a different date, and the Whitley/Williams rule was therefore not “called into play.” That rule applies only to “minimum sentences for predicate statutory offenses arising from the same criminal transaction or operative set of facts.” (emphasis in original). Thus, even though Count Five carried a greater minimum sentence than that prescribed by § 924(c), Parker was still eligible for the § 924(c) sentence because he was not convicted of using or carrying a gun in connection with that count.