Vendivel v. USA
Filing
5
MEMORANDUM OPINION AND ORDER: For the reasons stated above, the petition is without merit and is denied. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) because the petitioner has failed to make a substantial showing of the denial of a constitutional right. The Clerk is directed to enter judgment dismissing the petition, and to close this case. (Signed by Judge John G. Koeltl on 11/29/2011) (jfe)
United States District Court
Southern District of New York
__________________________________
JAMIE RAMOS VENDIVEL,
Petitioner,
- against -
10 Civ. 63 (JGK)
MEMORANDUM OPINION AND
ORDER
UNITED STATES OF AMERICA,
Respondent.
__________________________________
JOHN G. KOELTL, District Judge:
The petitioner, Jamie Vendivel, brings this motion pursuant
to 28 U.S.C. § 2255 to correct, vacate and/or set aside his
sentence.
Following his guilty plea, the petitioner was
sentenced to 220 months imprisonment.
Judgment Dated December
7, 2005, United States v. Vendivel, 03 Cr. 1305, Docket No. 145.
That sentence consisted of a sentence of 160 months imprisonment
on Count One for conspiracy in violation of 21 U.S.C. § 846, to
distribute narcotics in violation of 21 U.S.C. §§ 812,
841(a)(1), and 841(b)(1)(A), followed by a term of 60 months
imprisonment on Count Two, possession of a firearm in
furtherance of the conspiracy charged in Count One in violation
of 18 U.S.C. § 924(c).
Id.
mandatory minimum sentence.
Count One required a ten year
21 U.S.C. § 841(b)(1))(A).
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Count
Two required a five year mandatory minimum consecutive sentence,
“[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) and 924 (c)(1)(A)(i).
The petitioner argues that the mandatory minimum
consecutive sentence of 60 months on Count Two violated the
decision of the Court of Appeals for the Second Circuit in
United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), which
held that the consecutive mandatory minimum sentence required by
§ 924(c) did not apply where § 924(e), the armed career criminal
provision, required a mandatory minimum sentence of longer than
5 years on a separate count of possession of a firearm in
violation of 18 U.S.C. § 922(g)(1).
529 F.3d at 151-52, 158.
However, Whitley is no longer good law.
Abbott v. United States, 131 S. Ct. 18 (2010) abrogated
Whitley.
See United States v. Tejada, 631 F.3d 614, 618 (2d
Cir. 2011).
Under Abbott, the consecutive mandatory minimum
sentence of § 924(c) applies notwithstanding a defendant’s
receipt of “a higher mandatory minimum on a different count of
conviction.”
Abbott, 131 S. Ct. at 23.
This reading of §
924(c) plainly required the Court to sentence the petitioner to
the five-year mandatory minimum under § 924(c) consecutive to
the sentence imposed on Count One.
There was therefore no error
in the sentence and the petition is without merit.
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CONCLUSION
For the reasons stated above, the petition is without merit
and is denied.
The Court declines to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c) because the petitioner has
failed to make a substantial showing of the denial of a
constitutional right.
The Clerk is directed to enter judgment
dismissing the petition, and to close this case.
SO ORDERED.
Dated:
New York, New York
November 29, 2011
G. Koeltl
District Judge
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