Opinion
06 CR 273 (RPP), 09 CV 4392 (RPP).
December 17, 2010
OPINION ORDER
On April 8, 2009, Petitioner, Jose Gonzalez, moved to vacate his sentence pursuant to 28 U.S.C. § 2255. Gonzalez had been sentenced by this Court to ten years imprisonment for distribution of heroin in violation of 21 U.S.C. § 841(b)(1)(B), with an additional five years imprisonment to be served consecutively for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Petitioner avers that his sentence is unconstitutional and should be vacated because his ten year and five year sentences should run concurrently and not consecutively as held by the Second Circuit in United States v. Williams, 558 F.3d 166 (2d Cir. 2009). In Williams, the Second Circuit held that 18 U.S.C. § 924(c)(1)(A), exempted a defendant from a mandatory consecutive sentence for use or possession of a firearm if the defendant also received a longer mandatory minimum sentence for a narcotics offense.
By letter dated December 28, 2009, the Government alerted this Court that the Supreme Court was considering whether to grant the Government's petition challenging Williams and requested a stay of the motion. On December 29, 2009, this Court granted that application and stayed Petitioner's motion until fourteen days after the Supreme Court denied or granted the Government's pending petition for certiorari in Williams.
On November 15, 2010, the Supreme Court issued its decision inAbbott v. United States, 2010 WL 4569898 (2010), abrogating the Second Circuit's decision in Williams. In Abbott, the Court rejected the Second Circuit's interpretation of § 924(c) and held that a defendant is "subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum." Abbott at *1 (emphasis added). On November 29, 2010 the Supreme Court granted the Government's petition for a writ of certiorari in Williams, vacated the judgment, and remanded the case to the Second Circuit for further consideration in light of Abbott.
In this instance, Petitioner's ten year sentence is not directed to conduct proscribed by § 924(c). The ten year sentence relates to the distribution of heroin while the five year sentence relates to the Petitioner's possession of a firearm in furtherance of a drug trafficking crime. Consequently, because the highest mandatory minimum specified for conduct in violation of § 924(c) is the five year sentence, Petitioner was correctly sentenced to a consecutive ten and five year imprisonment.
For the above stated reasons, Petitioner's motion to vacate his sentence is denied.
SO ORDERED.