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No. 09-466

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

LEON WILLIAMS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAVID A. O'NEIL
Assistant to the Solicitor
General
JOHN M. PELLETTIERI
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

Section 924(c) of Title 18 requires specified manda tory consecutive sentences for committing certain weap ons offenses in connection with "any crime of violence or drug trafficking crime," "[e]xcept to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law."

The question presented is whether the "except" clause prohibits imposition of a Section 924(c) sentence if the defendant is also subject to a greater mandatory minimum sentence on a different count of conviction charging a different offense for different conduct.

In the Supreme Court of the United States

No. 09-466

UNITED STATES OF AMERICA, PETITIONER

v.

LEON WILLIAMS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

 

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra, 1a- 20a) is reported at 558 F.3d 166.

JURISDICTION

The judgment of the court of appeals was entered on March 5, 2009. A petition for rehearing was denied on June 22, 2009. (App, infra, 31a). On September 10, 2009, Justice Ginsburg extended the time within which to file a petition for a writ of certiorari to and including Octo ber 20, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 924(c) of Title 18 of the United States Code is reproduced in the appendix to this petition. App., in fra, 32a-35a.

STATEMENT

Following a jury trial in the United States District Court for the Southern District of New York, respon dent was convicted of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. 922(g); possessing with intent to distribute over 50 grams of crack cocaine in violation of 21 U.S.C. 841(b)(1)(A); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1)(A). The district court sentenced respondent to a total of 195 months of imprisonment, including a con secutive term of five years on the Section 924(c) convic tion, to be followed by five years of supervised release. App., infra, 1a, 3a. The court of appeals remanded to the district court for resentencing on the ground that, inter alia, the text of Section 924(c) exempted respon dent from any separate sentence for his conviction under that statute. Id. at 1a-20a.

1. In February 2006, two police officers saw respon dent urinating next to a car parked by the side of the road. As the officers approached, they observed in the car multiple cellular phones, wads of cash wrapped in rubber bands, and a plastic bag containing white resi due. After arresting respondent and impounding the car, the officers conducted an inventory search, during which they discovered a hidden compartment containing a loaded gun, a gun magazine, bullets, and 180 small bags of powder and crack cocaine. The white residue was later determined to be narcotics, and respondent's fingerprints were found on the gun magazine. Respon dent later admitted that he had been driving the car, which was registered to his sister, and that the cellular phones and cash belonged to him. App., infra, 2a-3a.

2. In April 2006, a grand jury sitting in the Southern District of New York indicted respondent on three counts: possessing a firearm after having been con victed of a felony, in violation of 18 U.S.C. 922(g); pos sessing with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. 841(b)(1)(A); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1)(A). In October 2006, respondent was tried before a jury, which found him guilty on all three counts. Gov't C.A. Br. 1-2; App., infra, 3a.

3. The district court sentenced respondent to a total of 195 months of imprisonment. App., infra, 3a. Re spondent was subject to two separate mandatory mini mum sentences: a ten-year mandatory minimum for the drug trafficking count pursuant to Section 841(b)(1)(A) and a consecutive five-year mandatory minimum for the Section 924(c) count. Ibid.; see 18 U.S.C. 924(c)(1)(A) (providing that, except where a greater minimum pen alty applies, any person who possesses a firearm in fur therance of a crime of violence or drug trafficking crime shall, "in addition to the punishment provided for such crime of violence or drug trafficking crime," be sen tenced to a "term of imprisonment of not less than 5 years"). The district court imposed a 120-month sen tence for the felon-in-possession count, a concurrent 135-month sentence for the drug trafficking count, and the mandatory consecutive five-year term for the Sec tion 924(c) count. App, infra, 3a, 22a.1

4. The court of appeals affirmed respondent's con viction but vacated his sentence and remanded for resentencing without any separate term of imprison ment for the Section 924(c) conviction. App., infra, 1a- 20a.

a. After respondent filed an appeal but before oral argument, the court of appeals decided United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). Whitley inter preted the introductory, "except" clause of Section 924(c)(1)(A), which states in relevant part:

Except to the extent that a greater minimum sen tence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug traf ficking crime * * * uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment pro vided for such crime of violence or drug trafficking crime-

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. 924(c)(1)(A) (emphasis added). The defendant in Whitley was convicted of three offenses arising from a single robbery: a Hobbs Act violation, which carried no mandatory minimum sentence; a violation of 18 U.S.C. 922(g) for possessing a firearm as a convicted felon, which carried a 15-year mandatory minimum sen tence under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e); and a Section 924(c) offense, which carried a ten-year mandatory minimum consec utive sentence because the defendant had discharged the firearm during the robbery, see 18 U.S.C. 924(c)(1)(A)(iii). Whitley, 529 F.3d at 151-152.

The Second Circuit construed the introductory lan guage of Section 924(c) to mean that Whitley was ex empt from any sentence for his Section 924(c) conviction because he was subject to a greater mandatory mini mum sentence under the ACCA. Whitley, 529 F.3d at 151. The court adopted what it considered to be a "lit eral" reading of Section 924(c)'s "except" clause, reason ing that "the ten-year minimum sentence required by subdivision (iii) of that subsection for discharge of a fire arm * * * does not apply to [the defendant] because, in the words of th[e] ['except'] clause, 'a greater mini mum sentence is otherwise provided by . . . any other provision of law,' namely, [the ACCA], which subjects him to a fifteen-year minimum sentence." Id. at 153.

In reaching that conclusion, the court of appeals re jected the government's contention that the "except" clause refers only to mandatory minimum penalties pro vided for the Section 924(c) offense, and that the court's contrary construction departs from the statute's plain meaning, conflicts with Congress's evident intent, and would anomalously result in shorter mandatory sen tences for more serious offenders. Whitley, 529 F.3d at 155. The court noted in dicta, however, that the anoma lies the government identified "could be overcome if the 'except' clause were limited to higher minimums con tained only in firearms offenses, rather than, as it reads, to higher minimums provided 'by any other provision of law.'" Ibid.

b. Following the decision in Whitley, the court of appeals ordered supplemental briefing and heard argu ment concerning the effect of that ruling on respon dent's sentence. 07-2436 Docket entry (2d Cir. July 16, 2008). The court then held that the reasoning in Whitley also applies to a case such as this one, in which the de fendant is subject both to a mandatory minimum sen tence under Section 924(c) and to a higher mandatory minimum for the predicate crime of violence or drug trafficking crime. App., infra, 2a.

The court first rejected the contention that Whitley may be limited either to its particular facts-involving multiple mandatory minimum sentences based on the use of a single firearm-or to mandatory minimums arising from firearms offenses more generally. App., infra, 6a-7a. In the court's view, the phrase "any other provision of law" in Section 924(c)(1)(A) reaches beyond firearms statutes to the entire "set of crimes for which mandatory minimum sentences apply," including "drug trafficking crimes [and] other violent offenses." Id. at 8a-9a. The court reasoned that this conclusion is com pelled by the text of the "except" clause, which "means what it literally says." Id. at 8a (citation omitted). At the same time, however, the Court cautioned that the "except" clause is not "unbounded." Id. at 9a. The court stated that reading "any other provision of law" literally "to include, for example, provisions under which a defen dant was already sentenced for a prior unrelated crime in a previous case, would be suspect." Id. at 10a. The court therefore held that application of the "except" clause controls only when the defendant faces a higher mandatory minimum sentence for a different offense "arising from the same criminal transaction or operative set of facts" as the Section 924(c) offense. Ibid.

The court acknowledged that Section 924(c)(1) re quires that the sentences it prescribes must be in addi tion to, and may not run concurrently with, any sentence imposed for the predicate crime of violence or drug traf ficking crime. App, infra, 10a-11a (citing 18 U.S.C. 924(c)(1)(A) (providing that the prescribed penalties are "in addition to the punishment provided for such crime of violence or drug trafficking crime"); 18 U.S.C. 924(c)(1)(D)(ii) (stating that, "[n]otwithstanding any other provision of law * * * no term of imprisonment imposed on a person under this subsection shall run con currently with any other term of imprisonment imposed on the person, including any term of imprisonment im posed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or pos sessed"). The court concluded, however, that its inter pretation did not violate these provisions. The court reasoned that the introductory clause of Section 924(c) carves out an exception to the "in addition to" require ment: when the "except" clause applies-i.e., when a defendant is subject to a higher minimum sentence for a different offense-the defendant receives no sentence at all under Section 924(c)(1)(A), so the Section 924(c) "sentence" is not "concurrent" with any other term of imprisonment. App., infra, 11a-12a.

The court also acknowledged that its interpretation of Section 924(c) might lead to the anomalous result that a defendant could be subject to a lower total mandatory sentence as a result of committing a more serious predi cate drug crime. App., infra, 15a-16a. But the court reasoned that any such anomaly may be remedied by the sentencing court in the exercise of its discretion to fash ion an appropriate punishment in the particular case. Id. at 16a-17a. And the court further concluded that, in any event, it was up to Congress to correct anomalies that result from what the court believed to be a literal reading of the statute. Id. at 17a.

Applying this interpretation of the "except" clause, the court held that, because respondent was subject to a ten-year mandatory minimum sentence under Section 841(b)(1)(A), he was exempt from the five-year manda tory minimum under Section 924(c)(1)(A). App., infra, 19a-20a. The court therefore remanded for resentencing without any sentence for respondent's Section 924(c) offense. Ibid.2

5. On April 24, 2009, the government petitioned for rehearing en banc, contending that the decision below is incorrect and noting that it conflicts with the decisions of every other court of appeals to address the issue. The court denied that petition without comment. App., infra, 31a.

REASONS FOR GRANTING THE PETITION

In the decision below, the court of appeals extended United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), to hold broadly that the mandatory minimum penalties prescribed in Section 924(c) do not apply when the de fendant also faces a higher mandatory minimum sen tence for another count of conviction. Under the Second Circuit's holding, when a defendant is convicted of a drug trafficking crime carrying a ten-year mandatory minimum and a Section 924(c) offense carrying a five- year mandatory minimum, the district court is required to sentence the defendant to zero months of imprison ment on the Section 924(c) offense. That interpretation of Section 924(c) is incorrect and implicates an en trenched conflict among the courts of appeals. Eight other courts of appeals have considered the meaning of the introductory "except" clause of Section 924(c)(1)(A), and all of them have rejected the interpretation adopted in the decision below. Those courts have correctly rea soned that the "except" clause does not displace the pen alties of Section 924(c) whenever a defendant also faces a higher minimum sentence for a different offense. Be cause the meaning of Section 924(c)(1)(A)'s introductory clause is an important question in federal prosecutions and is squarely presented in this case, this Court's re view is warranted.

A. The Court Of Appeals' Interpretation Of Section 924(c)(1)(A) Is Incorrect

The Second Circuit has fundamentally misconstrued the introductory language of Section 924(c)(1)(A). As other courts of appeals to consider the question have concluded, the "except" clause means that a defendant convicted of an offense under Section 924(c)(1)(A) must be sentenced to the five-year mandatory minimum term set forth in that provision unless another penalty provi sion elsewhere in Section 924(c) or "the United States Code[] requires a higher minimum sentence for that § 924(c)(1) offense." United States v. Easter, 553 F.3d 519, 526 (7th Cir. 2009) (per curiam), petitions for cert. pending, No. 08-9560 (filed Mar. 26, 2009), and No. 08- 10584 (filed May 20, 2009); see pp. 18-19, infra. The "except" clause does not mean that a defendant escapes any punishment for a Section 924(c) conviction whenever he is subject to a higher mandatory sentence for a dif ferent offense. The decision below departs from the plain meaning of Section 924(c)(1)(A), frustrates Con gress's intent, and creates anomalies both within the statute and in its practical application.

1. The prefatory clause of Section 924(c)(1)(A) pro vides that a defendant who violates that statute must be sentenced to at least five years of imprisonment "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law." 18 U.S.C. 924(c)(1)(A). "The except clause * * * does not say 'a greater minimum sentence' for what; yet it must have some understood referent to be intelligible." United States v. Parker, 549 F.3d 5, 11 (1st Cir. 2008), cert. denied, 129 S. Ct. 1688 (2009). Read naturally, the "understood referent" of the clause is the offense set forth in the language that immediately fol lows: using, carrying, or possessing a firearm in connec tion with a crime of violence or a drug trafficking crime. See United States v. Ressam, 128 S. Ct. 1858, 1860 (2008) (noting that the plain meaning of a statute is the "most natural reading of the relevant statutory text."); Easter, 553 F.3d at 526 ("In the contest between reading the 'except' clause to refer to penalties for the offense in question or to penalties for any offense at all, we believe the former is the most natural.").

The clause therefore provides that, except to the ex tent that Section 924(c) or any other provision of law provides a greater minimum sentence for using, carry ing, or possessing a firearm in connection with a crime of violence or a drug offense, any person who commits that firearms offense is subject to the baseline five-year mandatory minimum term of imprisonment set forth in Section 924(c)(1)(A)(i). Thus, for example, if (as in this case) a firearm is possessed in furtherance of a drug trafficking offense, the defendant is subject to a manda tory consecutive five-year sentence; except that if (as in Whitley) the firearm is discharged during the drug traf ficking crime, the defendant is instead subject to the ten-year mandatory minimum sentence under Section 924(c)(1)(A)(iii); except that if the discharged firearm is a machinegun, the defendant is instead subject to a 30-year mandatory minimum sentence under Section 924(c)(1)(B)(ii); except that if another feature of the Sec tion 924(c) offense triggers a greater mandatory mini mum penalty for that crime under "any other provision of law," the defendant is instead subject to that higher sentence on the Section 924(c) count.

This construction of the "except" clause does not "rewrit[e]" the statute or add any new words, as the court of appeals concluded. App., infra, 6a. It simply selects the most natural referent of the "except" clause, which is the basic crime set forth in Section 924(c)(1)(A). And it respects the purpose of that clause to ensure the imposition of the highest possible mandatory penalty for a Section 924(c) offense.

2. The statutory text does not support the court of appeals' contrary interpretation, under which the "ex cept" clause eliminates any Section 924(c) sentence whenever the defendant is subject to a higher manda tory minimum for a different crime "arising from the same criminal transaction or operative set of facts" as the Section 924(c) offense. App., infra, 10a. The court purported to rest its interpretation on a "literal reading" of the phrase "any other provision of law." Id. at 8a-9a. Consistent with ordinary principles of statutory con struction, however, that phrase should be "given more precise content by the neighboring words with which it is associated." United States v. Williams, 128 S. Ct. 1830, 1839 (2008); see, e.g., Dolan v. USPS, 546 U.S. 481, 486-487 (2006). Just as the phrase "this subsection" re fers to provisions that prescribe minimum sentences for the Section 924(c) offense, so too the phrase "any other provision of law" should be read to refer to those provi sions elsewhere in the United States Code that establish penalties for violating Section 924(c)(1)(A).

The absence of any provision of law outside Section 924(c) that currently prescribes such penalties does not justify the court of appeals' interpretation. As several other courts of appeals have concluded, the "'any other provision of law' language provides a safety valve that would preserve the applicability of any other provisions that could impose an even greater mandatory minimum consecutive sentence for violation of § 924(c)." United States v. Studifin, 240 F.3d 415, 423 (4th Cir. 2001). That language "simply reserv[es] the possibility that another statute or provision might impose a greater minimum consecutive sentencing scheme for a § 924(c) violation." Ibid; see United States v. Abbott, 574 F.3d 203, 208 (3d Cir. 2009) ("[T]he prefatory clause mentions 'any other provision of law' to allow for additional § 924(c) sentences that may be codified elsewhere in the future."); United States v. Collins, 205 Fed. Appx. 196, 197-198 (5th Cir. 2006) (per curiam) (finding "convinc ing" Studifin's reasoning that "by any other provision of law" provides a "safety valve" for future provisions "that could impose an even greater mandatory minimum con secutive sentence for a violation of § 924(c)") (quoting Studifin, 240 F.3d at 423), cert. denied, 551 U.S. 1170 (2007).3

Indeed, despite its professed fidelity to interpreting the "except" clause according to "what it literally says," App, infra, 8a (quoting Whitley, 529 F.3d at 153), the court of appeals itself departed from a strict "literal reading" of the phrase "any other provision of law," id. at 9a. Construed without any consideration of context, the "except" clause would eliminate any sentence under Section 924(c) whenever the defendant faced a greater mandatory minimum sentence for charges pending in other jurisdictions, for entirely unrelated counts, or for crimes that were the subject of a previous sentencing. The court of appeals, however, deemed "suspect" any such literal or "unbounded" reading of the clause. Id. at 9a, 10a. The court therefore limited the "except" clause to those "other provision[s] of law" imposing mandatory minimums for offenses that "aris[e] from the same crim inal transaction or operative set of facts" as the Section 924(c) offense. Id. at 10a. That interpolation appears nowhere in the statutory text, and, as this Court has remarked on numerous occasions, "same transaction" tests (or other similar formulations) are inherently mal leable and indeterminate. See, e.g., United States v. Dixon, 509 U.S. 688, 710-711 (1993). The court's inser tion of that test into the statute was also unnecessary. The "unbounded" reading of the "except" clause the court was trying to avoid arose only because the court failed to observe the limitation inherent in the statute itself-that the clause applies only where another provi sion prescribes a greater mandatory minimum for the Section 924(c) offense.

3. In addition to contravening the plain meaning of the relevant text, the Second Circuit's interpretation of the "except" clause ignores the history of the statute, brings that clause into conflict with other language in Section 924(c), and creates a variety of anomalies that Congress could not have intended.

a. The court of appeals' reading of the "except" clause cannot be squared with the history of Section 924(c)(1)(A). The "except" clause was added to the stat ute in 1998 as part of a slate of amendments intended both to broaden Section 924(c) in response to this Court's decision in Bailey v. United States, 516 U.S. 137, 150 (1995) (holding that the term "use" in Section 924(c) requires "active employment" of a firearm), and to stiffen the penalties for violating that law. The amend ments accomplished the latter purpose by adding gradu ated minimum sentences for brandishing and discharg ing a firearm and for subsequent convictions under the statute. The obvious purpose of the 1998 amendments- including the "except" clause-was thus to increase sen tences for defendants who use, carry, or possess fire arms in connection with other crimes. The Second Cir cuit's interpretation yields precisely the opposite effect, eliminating the Section 924(c) penalties altogether for the most serious offenders who commit predicate crimes carrying high minimum sentences. Nothing in the legis lative history of Section 924(c) supports that counterin tuitive result.

b. The interpretation adopted by the Second Circuit negates specific language in Section 924(c) demonstrat ing Congress's intent to impose additional, consecutive punishment on defendants who violate the statute. Sec tion 924(c)(1)(A) states that a defendant who carries, uses, or possesses a firearm in connection with a crime of violence or a drug trafficking crime "shall" be sen tenced to a minimum prison term "in addition to the punishment provided for such crime of violence or drug trafficking crime." Similarly, Section 924(c)(1)(D)(ii) states that, "[n]otwithstanding any other provision of law * * * no term of imprisonment imposed on a per son under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any other term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed." The Second Circuit's approach succeeds in preventing these cumulative sentences from occurring. As the Fourth Circuit has explained, the Second Circuit's

construction of § 924(c) simply makes no sense in light of Congress's clear intent in § 924(c) to impose mandatory consecutive sentences, as opposed to choosing between one or the other sentence, and in deed would be patently inconsistent with the intent expressed in § 924(c)(1)(D)(ii) to require mandatory consecutive sentences against those who commit crimes of violence while using or carrying firearms in furtherance of their crimes.

Studifin, 240 F.3d at 423.

c. The court of appeals' reading of the "except" clause effectively treats Section 924(c) as a mere sen tencing enhancement that can be displaced if some greater minimum for a different offense also applies. See Whitley, 529 F.3d at 151 ("This criminal appeal presents the unusual situation in which the literal mean ing of a sentencing statute has been disregarded to the detriment of a defendant.") (emphasis added). "But [Section] 924(c) does not define an enhancement, it de fines a standalone crime" for using, carrying, or possess ing a firearm in connection with a drug or violent of fense. Easter, 553 F.3d at 526; see Dean v. United States, 129 S. Ct. 1849, 1853 (2009) ("The principal para graph [of Section 924(c)] defines a complete offense."); Harris v. United States, 536 U.S. 545, 553 (2002). The result required by the decision below-a Section 924(c) conviction for which the defendant receives no sentence whatsoever-is highly anomalous. As the Seventh Cir cuit observed, "[a] determination of guilt that yields no sentence is not a judgment of conviction at all." Easter, 553 F.3d at 526.

d. The decision below would produce illogical sen tencing outcomes. Consider, for example, two defen dants possessing cocaine-the first possessing 500 grams and subject to a mandatory minimum sentence of five years under 21 U.S.C. 841(b)(1)(B), and the second possessing five kilograms (ten times the amount) and subject to a mandatory minimum of ten years under 21 U.S.C. 841(b)(1)(A). If the first defendant brandishes a firearm in furtherance of his drug offense, under the decision below the "except" clause would not apply and the defendant would be subject to two mandatory mini mum sentences totaling 12 years: the five-year sentence under 21 U.S.C. 841(b)(1)(B) and a consecutive manda tory minimum sentence of seven years under Section 924(c)(1)(A)(ii). But if the second defendant brandishes a firearm in furtherance of his much more serious drug offense, under the Second Circuit's view the except clause would apply, the seven-year mandatory minimum in Section 924(c)(1)(A)(ii) therefore would disappear, and the defendant would be subject to a single manda tory minimum of ten years under 21 U.S.C. 841(b)(1)(A). Thus, the more serious offender would face a lesser min imum sentence. It is inconceivable that Congress in tended such a result. See Abbott, 574 F.3d at 209 (dis cussing this and other sentencing anomalies and con cluding that "[w]e are confident that Congress did not intend such a bizarre result").

The court of appeals attempted to rationalize such anomalous outcomes on the ground that, where the "ex cept" clause applies, a district judge may compensate for the elimination of the Section 924(c) sentence by exercis ing its discretion under 18 U.S.C. 3553(a) to increase the sentence on the underlying offense. App., infra, 16a- 17a. But Congress added the "except" clause to Section 924(c) in 1998, seven years before this Court ruled in United States v. Booker, 543 U.S. 220 (2005), that dis trict courts may vary from the Sentencing Guidelines to fashion an appropriate punishment in the particular case. Congress therefore could not have intended to rely on the discretion afforded by Section 3553(a) as a means of correcting anomalies resulting from the "ex cept" clause. See Abbott, 574 F.3d at 210 ("Congress could not have intended to create such sentencing dis parities with the clairvoyant expectation that seven years later the Supreme Court would grant district judges the discretion to cure such injustices.") (citing Booker, supra); Easter, 553 F.3d at 526-527.

B. The Decision Below Implicates An Entrenched Conflict Within The Circuits

There is a clear and well defined conflict among the courts of appeals on the question presented. Eight other courts of appeals-the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits-have considered the meaning of the "except" clause, and none has adopted the interpretation underlying the Second Circuit's decisions in this case and in Whitley. Contrary to the decision below, all of those courts have rejected a reading of the "except" clause that would eliminate the sentence for a Section 924(c) offense when the defendant is subject to a higher mandatory minimum sentence for the underlying crime of violence or drug trafficking. See United States v. Segarra, No. 08-17181, 2009 WL 2932242 (11th Cir. Sep. 15, 2009) (per curiam); Abbott, 574 F.3d at 208-209; United States v. London, 568 F.3d 553, 564 (5th Cir. 2009), petition for cert. pending, No. 09-5844 (filed Aug. 11, 2009); United States v. Pulido, 566 F.3d 52, 65 & n.6 (1st Cir. 2009), petition for cert. pending, No. 09-5949 (filed Aug. 14, 2009); Easter, 553 F.3d at 525; Parker, 549 F.3d at 10-12; United States v. Jolivette, 257 F.3d 581, 586-587 (6th Cir. 2001); Studifin, 240 F.3d at 421-424; United States v. Alaniz, 235 F.3d 386, 386-390 (8th Cir. 2000), cert. denied, 533 U.S. 911 (2001). In addition, three of those circuits have held, in conflict with Whitley, that the "except" clause refers only to mandatory minimum sentences for the Section 924(c) offense, and does not refer to sentences for any other count of conviction, including another firearms- related crime. See Abbott, 574 F.3d at 209-211; Easter, 553 F.3d at 524-527; Studifin, 240 F.3d at 421-424.

The government petitioned for en banc review in both Whitley and the decision below, alerting the Second Circuit to the unanimous contrary authority in the other courts of appeals. The Second Circuit denied both of those petitions, thereby indicating that it was unwilling to reconsider its interpretation of Section 924(c). This Court's resolution of the circuit conflict is now war ranted.

C. The Question Presented Is Important And Squarely At Issue In This Case

1. The question presented is important to the ad ministration of the federal criminal justice system. Be cause firearms are commonly used, carried, or possessed in connection with drug trafficking and violent crimes, defendants are frequently charged with violating both Section 924(c) and the statute that defines the predi cate offense. In addition, recidivist offenders are often charged under both the ACCA and Section 924(c) when they employ a firearm in connection with another crime. The proper interpretation of the "except" clause deter mines the minimum sentence in these recurring circum stances. Under the Second Circuit's interpretation, a defendant receives no sentence for the Section 924(c) count if he is subject to a higher mandatory minimum for the ACCA violation or the predicate offense. Under the position adopted by other courts of appeals, by con trast, such a defendant is subject both to the mandatory minimum sentence for the Section 924(c) crime and the mandatory sentence for any other count of conviction. The disagreement between the Second Circuit and the other courts of appeals therefore yields large disparities in the sentences in a significant number of cases.

2. a. This case squarely presents the issue on which the courts of appeals are divided. Respondent was con victed of violating both 21 U.S.C. 841(b)(1)(A), which carries a mandatory minimum sentence of ten years, and Section 924(c)(1)(A)(i), which requires a consecutive mandatory sentence of at least five years. Based on its interpretation of the "except" clause, the court of ap peals ordered the district court to resentence respon dent without any separate term of imprisonment for the Section 924(c) offense. The eight other circuits to ad dress the issue would reach a different holding on these facts and would affirm a sentence that included both mandatory minimums.

b. Unlike other pending petitions for a writ of cer tiorari addressing the meaning of the "except" clause,4 this case squarely presents that question in a de novo posture. Although respondent did not invoke the "ex cept" clause in the district court or in his initial brief in the court of appeals, the Second Circuit applied a de novo standard of review on the ground that, "if [respon dent's] reading of Whitley and the 'except' clause are correct, the plain error standard of review would be met." App., infra, 4a n.2. That conclusion was based on the government's concession to that effect in Whitley, see 529 F.3d at 152 n.1, which in turn rested on control ling Second Circuit decisions holding that plain error review is either "relax[ed]" or inapplicable in certain sentencing contexts. See, e.g., United States v. Sim mons, 343 F.3d 72, 80 (2d Cir. 2003); United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). Whatever the merit of those cases, because the Second Circuit decided this case under a de novo standard in light of the govern ment's concession, the case comes to this Court on de novo review. Cf. United States v. Gaudin, 515 U.S. 506 (1995) (deciding issue de novo where government did not assert plain error in seeking a writ of certiorari).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAVID A. O'NEIL
Assistant to the Solicitor
General
JOHN M. PELLETTIERI
Attorney

OCTOBER 2009

1 The court of appeals incorrectly stated that the district court sentenced respondent on the felon-in-possession count to 130 months, which would have exceeded the statutory maximum of 120 months under 18 U.S.C. 922(g) and 924(a)(2). App., infra, 3a.

2 The court of appeals also remanded for the district court to consid er its authority to impose a non-guidelines sentence based on the dis parity between the crack and powder cocaine offenses. App., infra, 19a- 20a.

3 For example, suppose Congress were to amend 18 U.S.C. 922(k), which criminalizes possession of a firearm with a defaced serial number, to provide that "if a firearm with a defaced serial number is involved in a violation of Section 924(c)(1)(A), then the penalty for such a vio lation of Section 924(c)(1)(A) is at least 15 years." The "except" clause would make clear that the penalty for using a firearm with a defaced serial number during a drug or violent crime, in violation of Section 924(c)(1)(A), would be a minimum of 15 years of imprisonment (rather than any lower minimum set forth in Section 924(c) itself), which (under Section 924(c)(1)(D)(ii)) would be consecutive to whatever sentence the defendant received for the Section 922(k) offense.

4 See Pulido v. United States, No. 09-5949 (filed Aug. 14, 2009); Lon don v. United States, No. 09-5844 (filed Aug. 11, 2009); Lee v. United States, No. 09-5248 (filed July 9, 2009); McSwain v. United States, No. 08-9560 (filed Mar. 26, 2009).

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

No. 07-2436-cr

UNITED STATES OF AMERICA, APPELLEE

v.

LEON WILLIAMS, DEFENDANT-APPELLANT

[Decided: Mar. 5, 2009]

Before: POOLER and HALL, Circuit Judges, and TRAGER, District Judge.1

POOLER, Circuit Judge:

Leon Williams appeals from a June 1, 2007, judgment of conviction and sentence of the United States District Court for the Southern District of New York (Sand, J.). Williams was convicted of a drug trafficking crime which carried a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), and possession of a firearm in furtherance of that drug trafficking crime, an offense which carried a five-year mandatory minimum consecu tive sentence _[e]xcept to the extent that a greater mini mum sentence is otherwise provided by . . . any other provision of law_ under 18 U.S.C. § 924(c)(1)(A)(i). In this opinion, we address whether the district court erred

in imposing the five-year mandatory minimum consecu tive sentence under Section 924(c)(1)(A)(i) even though a greater minimum sentence was provided for the predi cate drug trafficking crime. In United States v. Whit ley, 529 F.3d 150 (2d Cir. 2008), reh'g denied, 540 F.3d 87 (2d Cir. 2008), we held that the mandatory minimum sentence under Section 924(c)(1)(A) was inapplicable where the defendant was subject to a longer mandatory minimum sentence for a career criminal firearm posses sion violation. We now hold that the mandatory mini mum sentence under Section 924(c)(1)(A) is also inappli cable where the defendant is subject to a longer manda tory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense.

We therefore affirm the district court's judgment of conviction and remand to give the district court the opportunity to resentence Williams consistent with our holding that Williams is not subject to the mandatory five-year minimum under Section 924(c)(1)(A). We also conclude that remand is required pursuant to United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). We re ject Williams's other challenges to his conviction and sentence on appeal.

BACKGROUND

At trial, the government presented evidence that on the evening of February 27, 2006, two New York City Police Department officers on patrol saw Williams standing next to a parked car on the side of the road, urinating. As the officers approached, they saw that inside the car were multiple cellular phones, wads of cash wrapped in rubber bands, and a plastic bag contain ing white residue, later determined to be narcotics. One of the officers also noticed a strange odor which he asso ciated with narcotics. Later that evening, an inventory search of the car revealed a hidden compartment con taining a loaded gun, a gun magazine, bullets, and 180 small bags of powder and crack cocaine. Williams's fin gerprints were on the gun magazine. At trial, Williams admitted that he had been driving the car, which was registered to his sister, and that the cellular phones and cash, which totaled $1,100, were his.

The jury found Williams guilty of three counts: (1) possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g);2 (2) possessing with in tent to distribute over 50 grams of crack cocaine, in vio lation of 21 U.S.C. §§ 812, 841(a) & 841(b)(1)(A); and (3) possessing a firearm in furtherance of the drug traffick ing crime charged in count two, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Williams was sentenced principal ly to 130 months' imprisonment on count one (felon-in- possession), to run concurrently with a sentence of 135 months' imprisonment on count two (drug trafficking), and an additional consecutive five years' (60 months') imprisonment on count three (possession of a firearm in furtherance of drug trafficking), for a total of 195 months' imprisonment.

The felon-in-possession conviction carried no man datory minimum sentence. 18 U.S.C. § 922(g). But the drug trafficking conviction carried a mandatory minimum penalty of ten years under 21 U.S.C. § 841(b)(1)(A). Because Section 841(b)(1)(A) is _any other provision of law_ that _otherwise provide[s]_ _a greater minimum sentence,_ 18 U.S.C. § 924(c)(1)(A), Williams argues that the five-year minimum for posses sion of a firearm under Section 924(c)(1)(A)(i) does not apply. Williams also raises various other challenges to his conviction and sentence.

DISCUSSION

I. Section 924(c)

A. United States v. Whitley

Section 924(c) provides graduated penalties for vari ous types of firearm use. In United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), reh'g denied, 540 F.3d 87 (2d Cir. 2008), we interpreted the introductory _except_ clause of Section 924(c)(1)(A).3 That subsection pro vides, in pertinent part:

Except to the extent that a greater minimum sen tence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug traf ficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced pun ishment if committed by the use of a deadly or dan gerous weapon or device) . . . uses or carries a fire arm, or who, in furtherance of any such crime, pos sesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug traffick ing crime-

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added).

In Whitley, the defendant was convicted of three offenses all stemming from the same armed robbery: (1) a Hobbs Act violation, with no mandatory minimum penalty, see 18 U.S.C. § 1951; (2) an Armed Career Criminal Act (_ACCA_) offense for possession of a fire arm after conviction of three prior offenses, for which the minimum penalty was fifteen years, see 18 U.S.C. §§ 922(g)(1), 924(e); and (3) a Section 924(c) offense for discharging a firearm in relation to a crime of violence, for which the minimum penalty was a consecutive ten years, see 18 U.S.C. § 924(c)(1)(A)(iii). We concluded that the consecutive minimum ten-year penalty under Section 924(c) did not apply because a higher fifteen- year minimum was imposed by the ACCA. Whitley, 529 F.3d at 151.

In reaching this conclusion, we rejected the govern ment's argument that the _except_ clause relates sole ly to those firearms offenses specified in Section 924(c). Id. at 153. We held that the _except_ clause of Section 924(c) _means what it literally says_-that the minimum sentences it requires do not apply where __a great er minimum sentence is otherwise provided by . . . any other provision of law.__ Id. (quoting 18 U.S.C. § 924(c)(1)(A)) (emphasis added). _Any other provision of law_ includes the ACCA. We rejected the govern ment's arguments that this literal interpretation of the _except_ clause is _unsupported by the text, design, or the purpose of the statute, would produce illogical and distorted outcomes that Congress clearly did not intend, and has been rejected by other circuits._ Id. at 155 (ci tations and quotation marks omitted). We observed that, _other than the decisions that have rewritten the _except_ clause in different ways to escape its plain meaning, we are aware of no decision rejecting the lit eral meaning of statutory language to the detriment of a criminal defendant._ Id. at 156; see also Whitley, 540 F.3d at 88.

We are, of course, _bound by our own precedent un less and until its rationale is overruled, implicitly or ex pressly, by the Supreme Court or this court en banc._ Nicholas v. Goord, 430 F.3d 652, 659 (2d Cir. 2005) (quo tation marks omitted). We must therefore determine whether the question of statutory interpretation in this case is materially different from the question addressed by Whitley. There are two potentially relevant dif ferences-(1) in Whitley, the longer mandatory mini mum sentence was provided by the ACCA for fire arms-related conduct, while in this case, it is provided by a non-firearms offense,4 and (2) in Whitley, the long er mandatory minimum sentence under the ACCA was to run consecutively with the sentence on the predicate offense, while in this case, the longer mandatory mini mum sentence is supplied by that predicate offense. The government now argues that Whitley should be limited to its facts-that is, to instances in which a defendant faces two consecutive mandatory minimum sentences for firearm-related conduct resulting from the use of a sin gle gun. The government again argues that its interpre tation is required by the statutory text and structure, the legislative history, and to avoid illogical applications of the statute. We conclude that to accept the govern ment's position would contravene the reasoning and re sult of Whitley.

B. Statutory Text

_[S]tatutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there._ Puello v. BCIS, 511 F.3d 324, 327 (2d Cir. 2007) (quotation marks omitted); see also Whit ley, 529 F.3d at 156. The government argues that the clause _[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provi sion of law,_ is ambiguous because it only directs a court where to look for the greater minimum (_any other pro vision of law_), and does not specify the offense to which the greater minimum sentence may apply. See 18 U.S.C. § 924(c)(1)(A). The government urges that we adopt the First Circuit's conclusion that the _except_ clause is am biguous because it _does not say _a greater minimum sentence_ for what; yet it has to have some understood referent to be intelligible._ United States v. Parker, 549 F.3d 5, 11 (1st Cir. 2008). The First Circuit rejected the possibilities that the referent could be _any other crime related to this case_ or _the underlying drug crime or crime of violence,_ and held that the _more sensible[ ] referent_ is "an additional minimum sentence for an un derlying offense because of the presence of the firearm." Id. The First Circuit reasoned that Whitley was distin guishable because the _danger_ in Whitley was the pos sibility of double-counting-two mandatory minimum con secutive firearms sentences could have applied for crimes involving the _same gun._ Id. In Parker, as here, the higher mandatory minimum sentence was sup plied by a drug crime. Id.

But this double-counting distinction finds no support in Whitley. We held in Whitley that the _except_ clause is not ambiguous-it _means what it literally says._ 529 F.3d at 158. In Whitley, we rejected the _judicial inser tion_ of the words _consecutive_ and _firearm_ into the _except_ clause. Id. at 153, 157-58. We noted that the Supreme Court had recently _condemn[ed] the insertion of words into a statute as _not faithful to the statutory text,_ _ in United States v. Rodriquez, in which it _rejec ted the defendant's argument that _reads [section 924(e)] as referring to _the maximum term of imprisonment pre scribed by law_ for a defendant with no prior convic tions that trigger a recidivist enhancement,' because _that is not what [section 924(e) ] says.__ 529 F.3d at 157 n. 5 (quoting United States v. Rodriquez, ___ U.S. ___, 128 S. Ct. 1783, 1788-89, 170 L. Ed. 2d 719 (2008) (em phasis in original)).

We are not persuaded that the phrase _any other provision of law_ is insusceptible to a plain reading. There is a discrete set of statutory offenses which re quire mandatory minimum sentences-mostly for narcot ics and firearm crimes, but also for murder and other dangerous weapons. See, e.g., 18 U.S.C. § 175c (biologi cal weapons); id. § 924 (firearms); id. § 929 (restricted ammunition); id. § 1111 (murder); id. § 2332g (missile systems); id. § 2332h (radiological dispersal devices); 21 U.S.C. §§ 841, 844, 860, 960 (drugs). It is plausible to understand the reference to _any other provision of law_ to include this limited set of crimes for which mandatory minimum sentences apply. As amicus counsel point out, there is no indication in the statutory language that Congress intended to be more lenient to defendants with multiple convictions for firearms-related conduct than to defendants convicted of drug trafficking crimes or other violent offenses, or that it intended to draw any distinc tion among offenses subject to minimum sentences. Amicus Br. at 10.

The statutory scheme supports this literal reading. Section 924 is the _Penalties_ section of Chapter 44, _Firearms,_ of Title 18 of the United States Code. If Congress had intended the _except_ clause to refer only to punishments for firearms offenses, it could simply have drafted that clause to read: _except to the extent that a greater minimum sentence is otherwise provided by this section._ Instead, Congress chose the more ex pansive phrase, _this subsection [Section 924(a) ] or any other provision of law._ 18 U.S.C. 924(c)(1)(A) (empha sis added).

In holding that the _except_ clause includes sen tences for predicate offenses, we do not hold that the _except_ clause is unbounded. The clause carves out an exception to the general rule that _any person who, dur ing and in relation to any crime of violence or drug traf ficking crime . . . [and] in furtherance of any such crime, possesses a firearm,_ shall face an additional mandatory consecutive term of imprisonment. 18 U.S.C. § 924(c)(1). Thus, it is natural to read _any other provi sion of law_ to include the penalty for the _crime of vio lence or drug trafficking crime,_ so long as the firearm was possessed _during and in relation to_ or _in further ance of_ that predicate offense. Id. In other words, the _except_ clause includes minimum sentences for predi cate statutory offenses arising from the same criminal transaction or operative set of facts. An interpretation of _any other provision of law,_ to include, for example, provisions under which a defendant was already sen tenced for a prior unrelated crime in a previous case, would be suspect. In this case, it is undisputed that the firearm possession that subjected Williams to the pen alty under Section 924(c) arose from the same criminal transaction as the drug trafficking offense.5

The government asserts that other provisions of the statute support its structural argument that Con gress intended that courts impose a consecutive, or non- concurrent, sentence for a Section 924(c) offense with out regard to the sentence imposed for the underly ing predicate offense. Specifically, the statute states that (1) the graduated penalties set forth in Sections 924(c)(1)(A)(i)(iii) must be applied _in addition to the punishment provided for such crime of violence or drug trafficking crime,_ 18 U.S.C. § 924(c)(1)(A) (emphasis added); see Parker, 549 F.3d at 11 (concluding that this language renders the literal reading of the _except_ clause _suspect on its face_); and (2) _[n]otwithstanding any other provision of law . . . no term of imprison ment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprison ment imposed for the crime of violence or drug traffick ing crime during which the firearm was used, carried, or possessed,_ 18 U.S.C. § 924(c)(1)(D)(ii) (emphases added). The government points to this Court's recent decision in United States v. Chavez, which relied on this language to conclude that Section 924(c) _was plainly designed to impose penalties that are cumulative to the penalties imposed for other crimes._ 549 F.3d 119, 134 (2d Cir. 2008).

To be sure, the general rule of Section 924(c) is that its penalties are cumulative. But the _except_ clause is an exception to that rule. The government would have the rule swallow the exception. In Whitley, we rejected the argument that Section 924(c)(1)(D)(ii)'s prohibi tion on concurrent punishments would be displaced by a literal interpretation of the _except_ clause.6 If the _except_ clause is read literally, and another statute provides a higher minimum penalty, the minimum punishments set forth in the subdivisions of Section 924(c)(1)(A) would never be imposed at all, and thus, there would be no concurrent sentences. See Whitley, 529 F.3d at 158.

The government also urges this Court to adopt the Fourth Circuit's reasoning that the statute's reference to "any other provision of law" is a _safety valve_ that "simply reserv[es] the possibility that another statute or provision might impose a greater minimum consecutive sentencing scheme for a 924(c) violation, and [does not] negat[e] the possibility of consecutive sentencing in the circumstances" in which the defendant faces a greater mandatory minimum sentence for a predicate drug- trafficking or crime-of-violence offense. United States v. Studifin, 240 F.3d 415, 423 (4th Cir. 2001).7 The Fourth Circuit based its conclusion on United States v. Alaniz, 235 F.3d 386, 389 (8th Cir. 2000), in which the Eighth Circuit held that the _except_ clause was added just to make the statute grammatically correct. We re jected that precise line of reasoning in Whitley, because we failed to see any grammatical problem with the stat ute absent the _except_ clause, and because the argu ment could not explain why the statute includes _the broad phrase _or by any other provision of law.__ 529 F.3d at 154.

C. Legislative History

The government urges that we turn to the legislative history to fill in the purported gap in the statutory lan guage. _Only if we discern ambiguity do we resort first to canons of statutory construction, and, if the meaning remains ambiguous, to legislative history._ Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005) (citations omitted). Although we do not find the statutory terms to be ambiguous, were we to conclude that there was ambiguity, we would follow the Supreme Court's directive to _interpret ambiguous criminal stat utes in favor of defendants, not prosecutors,_ rather than attempt to _play the part of a mind reader_ divin ing _Congress's presumptive intent._ United States v. Santos, ___U.S. ___, 128 S. Ct. 2020, 2026, 2028, 170 L. Ed. 2d 912 (2008). See also United States v. Granderson, 511 U.S. 39, 53-54, 114 S. Ct. 1259, 127 L. Ed. 2d 611 (1994) (courts must resolve ambiguities in favor of criminal defendants); Crandon v. United States, 494 U.S. 152, 160, 110 S. Ct. 997, 108 L. Ed. 2d 132 (1990) (when construing a criminal statute, courts are _guided by the need for fair warning_); McNally v. United States, 483 U.S. 350, 359-60, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987) (when confronted with _two rational readings of a criminal statute, one harsher than the other, [courts] are to choose the harsher only when Con gress has spoken in clear and definite language_), super seded by statute, 18 U.S.C. § 1346, as recognized by United States v. Rybicki, 354 F.3d 124, 134 (2d Cir. 2003) (en banc).

The government argues that if Williams had been sentenced before the _except_ clause was added to the statute in 1998, he would have faced both consecutive mandatory minimum sentences, and because the spon sors of the legislation stated that their general intent was to enhance penalties, Congress could not have in tended an interpretation of the statute that would sub ject a defendant like Williams to only one mandatory minimum sentence. The Whitley court ruled that the government's argument that the congressional purpose behind Section 924(c) was to increase sentences was in sufficient to void the plain language of the statute. 529 F.3d at 154-55. Although Congress might have intended to enhance firearm penalties, it was not _inconsistent with that purpose for Congress to have provided a series of increased minimum sentences and also to have made a reasoned judgment that where a defendant is exposed to two minimum sentences, some of which were in creased by the 1998 amended version, only the higher minimum should apply. Indeed, such a sentencing pat tern seems eminently sound._ Id. at 155.8 There is no reason to depart from Whitley's reasoning in Williams's case.9

D. Anomalous Sentencing Results

A departure from the plain text of a statute is war ranted only in the rare case where the anomalous result rises to the level of a _patent absurdity,_ see Hubbard v. United States, 514 U.S. 695, 703, 115 S. Ct. 1754, 131 L. Ed. 2d 779 (1995) (quotation marks omitted), or has _no basis in reason,_ see Whitley, 540 F.3d at 89 (quota tion marks omitted). See also Clinton v. City of New York, 524 U.S. 417, 429, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998) (applying absurdity doctrine where there was _no plausible reason_ supporting a limited plain text reading).

The government argues that Williams's construction of the _except_ clause results in illogical distortions of Section 924(c). It provides the example of a defen dant who possessed 500 grams of cocaine, subjecting him to a five-year minimum sentence under 21 U.S.C. § 841(b)(1)(B), and brandished a firearm in furtherance of that offense, subjecting him to a consecutive seven- year minimum sentence, resulting in a mandatory mini mum sentence of twelve years. But if that defendant had possessed five kilograms of cocaine-ten times more-he would be subjected only to the ten-year mini mum sentence under 21 U.S.C. § 841(b)(1)(A). The low er seven-year minimum for brandishing the firearm would not apply. Thus, a defendant could be subjected to a lower total mandatory minimum sentence for a more severe crime.10

Whitley made note of this apparent anomaly. 529 F.3d at 156. If Whitley's holding was limited to its facts, and the term _any other provision of law_ meant only ACCA offenses, no anomalies would result. This is be cause the alternative mandatory minimum sentence un der the ACCA is fifteen years, a number that would con sistently trump the five- to ten-year minimums under Section 924(c)(1)(A)(i)-(iii). See Whitley, 529 F.3d at 157-58 (rejecting the Fourth Circuit's analysis in Studi fin that an anomaly would result from imposing ACCA's minimum sentence in lieu of any higher sentence under Section 924(c)).

However, Whitley did not rely on reading an ACCA limitation into the _except_ clause to reject the point regarding the potential anomaly. Whitley's primary reasoning is that the anomaly _disappears upon close scrutiny_ because _no court would be required to sen tence the five-kilogram defendant to only the ten-year minimum. That defendant would face a maximum sen tence of life. . . . If the _except_ clause subjected more serious drug offenders to a lower maximum sentence than less serious drug offenders, the Government's ano maly argument would have some force._ 529 F.3d at 155. Thus, a literal reading of the statute does not ren der it incoherent. As this Court reinforced in its deci sion denying the petition for rehearing: _[t]he literal wording leaves no defendant unsentenced. Indeed, . . . it leaves sentencing judges free to impose precisely the same number of years that the Government contends should have been imposed on Whitley, but authorizes them to do so as a matter of discretion, not as a require ment._ Whitley, 540 F.3d at 89.11

In any event, this purported anomaly results from what, in our view, is a plain reading of the statutory text. _If, at the end of the day, Congress believes we have erred in interpreting [the statute], it remains free to correct our mistake._ American Airlines, Inc. v. Wol ens, 513 U.S. 219, 246, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995) (O'Connor, J., concurring in part and dissenting in part); see also Clark v. Martinez, 543 U.S. 371, 386, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005).

II. Williams's Challenges to his Conviction

Williams challenges the sufficiency of the evidence underlying his conviction, arguing that there was no evi dence demonstrating that he knowingly possessed the crack cocaine and firearm that were recovered from the vehicle. In reviewing the sufficiency of the evidence, we must _view the evidence presented in the light most fa vorable to the government, and . . . draw all reason able inferences in its favor._ United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). The verdict must be sustained if _any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt._ Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The evidence presented at trial was sufficient to permit a rational juror to con clude beyond a reasonable doubt that: Williams pos sessed the firearm (his fingerprints were on the gun magazine;12 it was in the car he was driving); Williams possessed the crack cocaine with an intent to distribute (the car had a narcotics odor; the drugs were in the same compartment as the firearm; there were 180 small bags containing over 150 grams of cocaine; he had $1,100 and six cellular phones in the car); and that the gun was used in connection with the firearms offense (the gun and the drugs were found in the same hidden compart ment). Thus, we reject Williams's challenge to the suffi ciency of the evidence.

Williams also argues that his trial counsel was inef fective for stipulating to the fact that the gun and drugs were found during an inventory search of the car follow ing his arrest. Williams argues that this stipulation was inconsistent with the alleged theory of the defense: to wit, that Williams was framed by the police. We decline to deviate from our _baseline aversion to resolving inef fectiveness claims on direct review_ in this case, because the factual record on the issue is not fully developed and resolution of the issue is not beyond doubt. See United States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003) (quo tation marks omitted). Williams's ineffectiveness claim can be better developed in the district court on a motion under 28 U.S.C. § 2255. Id. at 100.

III. Remand for Resentencing

Williams also challenges the constitutionality of the crack-to-powder cocaine sentencing ratio, which was integral to the calculation of his base offense levels and sentencing range on the narcotics count under the Uni ted States Sentencing Guidelines. The government con cedes that the record does not establish whether the dis trict court was cognizant of its ability to impose a non- Guidelines sentence based on the disparity between sen tencing for crack and powder cocaine offenses, and that therefore, remand is appropriate pursuant to United States v. Regalado, 518 F.3d 143, 149 (2d Cir. 2008).

Therefore, we remand for resentencing pursuant to Regalado and consistent with our holding that Williams is not subject to the mandatory consecutive five-year minimum for the firearm conviction under Section 924(c). Upon resentencing, Williams remains subject to the ten-year minimum statutory sentence for his drug trafficking crime, _and the sentencing judge retains au thority to select any appropriate sentence, consistent with 18 U.S.C. § 3553(a), whether or not pursuant to the Guidelines, above that minimum._ Whitley, 529 F.3d at 158 (footnote omitted). In light of our decision to re mand, we reject, as premature, Williams's challenge to the substantive reasonability of his sentence.

CONCLUSION

For the foregoing reasons, we affirm Williams's con viction and remand to the district court for resentenc ing.

APPENDIX B

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket Number: 07-2436-cr

UNITED STATES OF AMERICA, APPELLEE

v.

LEON WILLIAMS, DEFENDANT-APPELLANT

[Filed: June 22, 2009]

Appellee United States of America having filed a peti tion for panel rehearing, or, in the alternative, for re hearing en banc, and the panel that determined the ap peal having considered the request for panel rehearing, and the active members of the Court having considered the request for rehearing en banc,

IT IS HEREBY ORDERED that the petition is de nied.

[SEAL OMITTED]

For the Court:

Catherine O'Hagan Wolfe, Clerk

By: FRANK PEREZ

FRANK PEREZ, Deputy Clerk

 

APPENDIX D

18 U.S.C. 924(c) provides:

Penalties

(c)(1)(A) Except to the extent that a greater mini mum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug traffick ing crime (including a crime of violence or drug traffick ing crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a fire arm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

(B) If the firearm possessed by a person convicted of a violation of this subsection-

(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprison ment of not less than 30 years.

(C) In the case of a second or subsequent conviction under this subsection, the person shall-

(i) be sentenced to a term of imprisonment of not less than 25 years; and

(ii) if the firearm involved is a machinegun or a de structive device, or is equipped with a firearm si lencer or firearm muffler, be sentenced to imprison ment for life.

(D) Notwithstanding any other provision of law-

(i) a court shall not place on probation any person convicted of a violation of this subsection; and

(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

(2) For purposes of this subsection, the term "drug trafficking crime" means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.

(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(4) For purposes of this subsection, the term "bran dish" means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimi date that person, regardless of whether the firearm is directly visible to that person.

(5) Except to the extent that a greater minimum sen tence is otherwise provided under this subsection, or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if com mitted by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries armor pierc ing ammunition, or who, in furtherance of any such crime, possesses armor piercing ammunition, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime or conviction under this section-

(A) be sentenced to a term of imprisonment of not less than 15 years; and

(B) if death results from the use of such ammu nition-

(i) if the killing is murder (as defined in Section 1111), be punished by death or sentenced to a term of imprisonment for any term of years or for life; and

(ii) if the killing is manslaughter (as defined in Section 1112), be punished as provided in Section 1112.

1 We thank amicus counsel for the helpful brief and oral argument in this appeal.

2 Williams had previously been convicted of a felony on May 29, 1997 in New York state court.

3 Although Williams did not raise this argument below, if his reading of Whitley and the _except_ clause are correct, the plain error standard of review would be met. See Whitley, 529 F.3d at 152 n. 1.

4 We noted in Whitley _that the Fifth and Eighth Circuits have in terpreted the _except_ clause to have a firearms limitation,_ 529 F.3d at 155-56 (citing United States v. Collins, 205 F. App'x 196, 198 (5th Cir. 2006); United States v. Alaniz, 235 F.3d 386, 389 (8th Cir. 2000)), and that the Sixth Circuit has cited these cases with approval, see id. (citing United States v. Jolivette, 257 F.3d 581, 587 (6th Cir. 2001)). We dis tinguished Alaniz and Collins by pointing out that the defendants in those cases, like Williams, were convicted of narcotics offenses, while Whitley was convicted of a firearms offense. Id. at 157. But we did notcomment on whether the Fifth and Eighth Circuits correctly read a firearms limitation into the _except_ clause.

5 We do not adopt an interpretation of the statute that would limit the scope of the _except_ clause to crimes within the same charging in strument. Such an interpretation would elevate the form of the indict ment or information over the substance of the offenses.

6 The other statutory language cited by the government, which pro vides that the mandatory minimum sentence for the firearm is to be in addition to any penalty for the predicate _crime of violence or drug traf ficking crime,_ was not at issue in Whitley because there, the higher mandatory minimum sentence was provided by the ACCA offense, which was not the predicate _crime of violence or drug trafficking crime_ for purposes of the Section 924(c) count. Nonetheless, the same logic of exception applies.

7 Studifin did not give any example of a statutory provision currently on the books that could increase a sentence for a violation of Section 924(c) but is not codified within that section. This argument must be that the _except_ clause allows a greater minimum sentence in the event that Congress one day enacts higher mandatory minimum sen tences for Section 924(c) violations in some other section of the Code.

8 The government cites one specific statement from the legislative history that might bear on the statutory interpretation question at issue here-a statement that the bill had the _salutary aspect_ of _authorizing imposition of stiffer minimum sentences if required under other pro visions of law,_ thus _eliminat[ing] any potential inconsistency with other statutes._ Gov't Supp. Br. at 17 (quoting Criminal Use Of Guns: Hearing on S. 191, A Bill To Throttle Criminal Use Of Guns, Hearing Before The Committee On The Judiciary, United States Senate, 105th Cong. at 38 (May 8, 1997) (Statement of Thomas Hungar, formerly of the Office of the Solicitor General)). To the extent that this vague state ment is consistent with the statutory text, it does not compel the gov ernment's interpretation of the _except_ clause, because it begs the question of the meaning of _potential inconsistency._

9 The government also argues that congressional acquiescence in de cisions by other Circuits affirming the imposition of the mandatory pen alties under Section 924(c), even where greater minimum sentences apply for drug trafficking, supports its interpretation of the statute. But it is an impermissible stretch to draw any such inference in this case, due to the relatively small number of inconsistent holdings on the issue. Cf. Evans v. United States, 504 U.S. 255, 268-69 n. 22, 112 S. Ct. 1881, 119 L. Ed.2d 57 (1992) (inferring congressional agreement with prevailing and consistent interpretation of statute by at least nine appellate courts over 20 years in high-profile cases involving prosecu tions of important officials, for example, the Governor of Oklahoma).

10 The government's brief provides two additional examples that are not anomalies per se, but rather are examples of how Williams's inter pretation would result in disparities between the minimum sentences that would apply to less and more severe conduct-for example, a ten year minimum for possessing drugs and brandishing a gun, but a twen ty year minimum for possessing drugs and discharging a gun. Similar disparities result directly from Whitley's holding with respect to fire arms sentences, and do not render the literal reading of the statute ab surd.

11 Moreover, as amicus counsel argues, the United States Sentencing Guidelines themselves resolve the specific anomaly highlighted by the government. Under the Guidelines, the low end of the sentencing range for a defendant convicted of possession of five kilograms of cocaine, as suming no criminal history, would be twelve years and seven months, which is longer than the twelve-year minimum applicable to a defendant in possession of only 500 grams of cocaine. The government's response is that the Guidelines would not help a judge who seeks to sentence both defendants to the lowest possible sentence allowed by the statute. But the hypothetical judge could increase the sentence of the defendant who was not subjected to double mandatory minimum sentences to achieve parity.

12 Williams testified at trial that his fingerprints appeared on the gun magazine because police officers had handed him the gun magazine at the precinct. In rebuttal, two police officers testified that Williams did not touch the weapons at the precinct. The jury certainly could have in ferred from the officers's testimony that Williams's fingerprints were on the gun magazine before the arrest and, indeed, that Williams testi fied falsely in order to conceal his knowledge of what was in the car's hidden compartment.