United States v. Garcia (Praylow)

SUMMARY ORDER Defendant-Appellant Rory Praylow pled guilty to conspiracy to distribute and possess with intent to distribute heroin, see 21 U.S.C. § 846, distribution and possession with intent to distribute heroin, see 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and possession of a firearm in furtherance of a narcotics trafficking crime, see 18 U.S.C. § 924(c). Praylow appeals from the district court’s May 13, 2008 judgment, arguing that his aggregate 180-month sentence, consisting of two concurrent 120-month sentences on the narcotics counts and one consecutive 60-month sentence for the guilty plea on the firearms count was plain error under this Court’s decisions in United States v. Williams, 558 F.3d 166 (2d Cir.2009) and United States v. Whitley, 529 F.3d 150 (2d Cir.2008). We assume familiarity with the facts and procedural history, which we reference only as necessary to explain our decision. Title 18 U.S.C. § 924(c)(1)(A) criminalizes the use or carrying of a firearm during and in relation to a crime of violence or a drug trafficking crime and imposes spee- *110 ified mandatory minimum terms of incarceration in addition to the punishment provided for the underlying crime “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.2008), we interpreted this “except” clause to mean that a mandatory minimum sentence prescribed under § 924(c) need not run consecutively to any greater mandatory minimum sentence. See id. at 153. In United States v. Williams, 558 F.3d 166 (2d Cir.2009), we extended Whitley, holding that a district court’s contrary interpretation of § 924(c) constituted plain error. See id. at 169 n. 2, 176. In this case, sentencing Praylow before this Court issued its decisions in Whitley and Williams, the district court concluded that Praylow’s mandatory minimum sentence of 60 months’ incarceration for his § 924(c) conviction must run consecutively to his sentence on his narcotics conviction under 21 U.S.C. § 841(a), even though the latter conviction carried a mandatory minimum of 120 months’ imprisonment. See 21 U.S.C. § 841(b)(1)(A). This ruling, though not objected to below, was plain error requiring a remand for resentencing. 1 See United States v. Williams, 558 F.3d at 170. In resentencing Praylow, the district court of course retains discretionary authority to impose a consecutive sentence consistent with its responsibility under 18 U.S.C. § 3553. See United States v. Whitley, 529 F.3d at 158. Accordingly, the sentence of the district court is VACATED and REMANDED for further proceedings consistent with this decision. Footnotes [1] We are mindful that the United States has petitioned for a writ of certiorari in Williams, see United States v. Williams, 558 F.3d 166 (2d Cir.2009), petition for cert. filed, 78 U.S.L.W. 3254 (U.S. Oct. 20, 2009) (No. 09-466), and that the Supreme Court has granted certiorari in United States v. Abbott, 574 F.3d 203 (3d Cir.2009), cert. granted, - U.S. -, 130 S.Ct. 1284, - L.Ed.2d -(2010), and United States v. Gould, 329 Fed.Appx. 569 (5th Cir.2009), cert. granted, - U.S. -, 130 S.Ct. 1283, - L.Ed.2d - (2010), which also address mandatory consecutive sentencing under § 924(c). In the absence of any contrary authority from the Supreme Court, however, our existing precedents compel the conclusion that the imposition of a mandatory consecutive sentence in the instant case was plain error.