Motion — United States v. Almany

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Supreme Court.

AUG 26 2010

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RESPONSE REQUESTED

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UNITED STATES OF AMERICA, PETITIONER

LEE ALMANY

IN PETITION FOR A WRIT OF CERTIORARI!

THE UNITED STATES COURT OF APPEAL

FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Comes the Respondent, Lee Almany, by and through counsel, and moves this

Court for an Order allowing him to proceed /n Forma Pauperis pursuant to Rule of

the Supreme Court of the United States 39. In support, the Respondent shows this

Court that he is an indigent criminal defendant and that his counsel was appointed

by the United States District Court, Eastern District of Tennessee to represent him

pursuant to 18 U.S.C. § 3006A (2010)

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nespectfully Submitted

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1iILARY HODGKINS*

a Vine Street

Chattanooga, TN 37403

(423)432-0752

hilaryhodgkins@comcast.net

‘Counsel of Record

avett & Al

801 Broad

Suite 428

Chattanoog

423)265-88

“except” clause prohibits a court from sentencing a criminal defendant under both

the mandatory minimum sentence found in the firearm statute and another,

greater, mandatory minimu sentence in any other provision of law. Id. 4a, 7a.

The Sixth Circuit, in remanding the case to the District Court for

resentencing, followed the Second Circuit’s interpretation of 18 U.S.C. 924(c)(1)(A)

in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). The statute reads:

Except to the extent that a greater minimum

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 trafficking crime (including a crime of violence

or drug trafficking 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 firearm,

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.

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

The Second and Sixth Circuits interpret the “except” clause to exempt a

criminal defendant from the mandatory minimum sentences proscribed in

924(c) 1A) where that defendant is subject to a greater minimum sentence for the

(2)

underlying drug trafficking offense or crime of violence. United States v. Williams,

558 F.3d 166 (2° Cir 2009), petition for cert. pending, No. 09-466 (filed Oct. 20,

2009). This issue is squarely before this Court in Abbott v. United States, 1305. Ct

1284 (No. 09-479) and Gould v. United States, 130 S. Ct. 1283 (No. 09-7073), and

these cases, as the Court is undoubtedly aware, are set for oral argument on

Monday, October 4, 2010.

The Government in its Petition for Writ of Certiorari is actually seeking to

have its petition held pending the Court's decision in Gould and Abbott, therefore

Respondent is essentially joining the Government in a vigil as we await the Court's

decision in this matter. Respondent urges that the Court give the words “any

other” as they appear in 18 U.S.C. § 924(c)(1)(A) the same meaning that this Court

gave to the words “any other” in its prior decision, United States v. Gonzalez, where

this Court stated:

Read naturally, the word “any” has an expansive

meaning, that is “one or some indiscriminately of

whatever kind.” Webster's Third New International

Dictionary 97 (1976). Congress did not add any

language limiting the breadth of that word, and so

we must read § 924(c) as referring to all “terms of

imprisonment,” including those imposed by state

courts.

520 U.S. 1, 5, 117 S. Ct. 1082, 1035, 137 Led. 2d 132 (1997). Gonzales, of course,

dealt with a different section of 18 U.S.C. § 924(c) which then provided:

(3)

Notwithstanding any other provision of law, the

court shall not place on probation or suspend the

sentence of any person convicted of a violation of

this subsection, nor shall the term of imprisonment

imposed under this subsection run concurrently

with any other term of imprisonment, including

that imposed for the .. . drug trafficking crime in

which the firearm was used or carried.

18 U.S.C. § 924(c1)(1997) (emphasis added).

In Gonzales, the Government argued for an expanded definition of the word

“any” so that the prohibition of concurrent sentencing under 924(c) would

encompass terms of imprisonment in state court as well as federal court. United

States v. Gonzales, 520 U.S. 1, 12, 117S. Ct. 1032, 1038. ta the case before this

Court, the same Government, acting as Petitioner, urges a far narrower vision of

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“any other” which would narrow the meaning to: any other “consecutive” sentence;

any other “924(c)” sentence; and, the safety valve interpretation, any other sentence

for punishment yet to be enacted by Congress. (United States v. Williams, 09-466,

Petition for Writ of Certiorari, filed October 20, 2009).

Using an expansive interpretation of the words “any other” does not limit the

Court’s ability to fashion an appropriate sentence-- it only limits the court in its

application of mandatory minimum sentences. As the Second Circuit indicated in

Whitley, “the sentencing judge, although not required to impose a consecutive

firearms sentence on top of the [greater mandatory minimum], would retain the

authority to do so if appropriate, consistent with 18 U.S.C. § 3553(a).” United

States v. Whitley, 529 F.3d 150, 158 (2" Cir. 2008).

(4)

These issues are before the Court in Gould and Abbott, and this petition

should be held until this Court renders a decision in those cases.

August 26, 2010

Respectfully Submitted.

Aten (Hoc

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, HILARY HO

312 Vine Street

Chattanooga, TN 37403

(423)432-0752

hilaryhodgkins@comcast.net

*Counsel of Record

John C. Cavett, Jr.

Cavett & Abbott, plic

801 Broad Street

Suite 428

Chattanooga, TN 37403

(423)265-8804

Jeavett@cavett-abbbott.com

Counsel for Respondent