Opinion
No. 08-3859-cr.
March 18, 2011.
PRESENT: ROBERT D. SACK, REENA RAGGI, PETER W. HALL, Circuit Judges.
FOR APPELLANT: MARK D. HOSKEN, Federal Public Defender's Office, Western District of New York, Rochester, New York.
FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.
APPEAL from the United States District Court for the Western District of New York (Charles J. Siragusa, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of this panel, entered on May 12, 2010, is VACATED IN PART, and the judgment of the district court, entered on August 4, 2008, is AFFIRMED.
Defendant Odis Lamar Smith pleaded guilty to possession with intent to distribute and distribution of 50 grams or more of cocaine base, see 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1), and the district court imposed consecutive sentences of 180 months on the narcotics count and 60 months on the firearms count. On appeal, we held that the district court properly calculated Smith's Guidelines range as a career offender, but vacated his sentence and remanded for resentencing pursuant to our decisions in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), and United States v. Williams, 558 F.3d 166 (2d Cir. 2009). See United States v. Smith, 376 F. App'x 140, 142 (2d Cir. 2010). Before resentencing, the Supreme Court decided Abbott v. United States, 131 S. Ct. 18 (2010), abrogating our decisions inWhitley and Williams, see, e.g.,United States v. Tejada, 631 F.3d 614, 618-19 (2d Cir. 2011), and the government moved to recall the instant mandate. We granted that motion and, having reviewed the parties' supplemental submissions, we agree with their joint assessment that our decision to remand for resentencing must be reversed in light of Abbott and that the district court's judgment must be affirmed in full.
Accordingly, the order of this panel, entered on May 12, 2010, is VACATED IN PART to the extent it vacated sentence and remanded for resentencing, and the judgment of the district court, entered on August 4, 2008, is AFFIRMED in its entirety.