Wednesday, March 10, 2010

BIG 924(c) Victory!!!

Today wasn't going that well . . . . But United States v. Almany, No. 08--6027 (6th Cir. Mar. 10, 2010) (published), has put a silver lining in the cloud.

Panel of Judges Merritt, Martin, and Cole.

Defendant pleaded guilty to cocaine charges and possession of a firearm in furtherance of drug trafficking. District court imposed mandatory minimum sentence of 10 (drugs) + 5 (gun) years. Consecutive.

Issue: does the plain language of Sec. 924(c)(1)(A) forbid the imposition of its mandatory minimum sentence when a defendant is subject to a higher mandatory minimum under another provision of law?

Counsel had filed an Anders Brief. Defendant proceeded pro se. The defendant cited United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). This case is on the this blog in March 2009.

Court considered United States v. Baldwin, 41 F. App`x 713 (6th Cir. 2002), and United States v. Jolivette, 257 F.3d 581 (6th Cir. 2001), and found the cases uninstructive. Didn't involve a second mandatory minimum sentence. Court looked to Whitley and found it persuasive. Court states in the opinion:

"Reading the firearm statute literally, the Second Circuit held that the statutory language plainly forbade the imposition of the mandatory minimum contained the firearm statute in conjunction with another greater mandatory minimum sentence. The Second Circuit’s opinion in Whitley is the correct interpretation of the firearm statute."

Court rejects analysis in United States v. Collins, 205 F. App`x 196 (5th Cir. 2006), and United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000).

This issue relates to pending cert petitions. See January 2010 on this blog.

Case remanded.

Another interesting issue is that of the appellate waiver. It is plain error for a district court to fail to inquire into a defendant's understanding of an appellate waiver. Here, the district court's inquiry seemed to imply that the defendant had the right to appeal. Appellate waiver therefore unenforceable.


Jeff Nye said...

Wait, so the defendant's counsel filed an Anders brief, and then filed a brief disputing the defendant's pro se brief? That strikes me as...odd.

Anonymous said...

Can someone answer this. A family member took a plea that carried 70 months for involuntary manslaughter of a Federal agent. The judge then used 924 c i and iii because a firearm was used. They totaled this 190 months. Does the law say these are to run concurrent or consecutive? The judge said consecutive (190 months)