The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Petitioner Ramon Aponte ("Aponte") has filed a petition for a writ of audita querela, in which he challenges the validity of his plea and sentence. In the petition, Aponte contends that the plea agreement and subsequent sentence were based upon the "mistaken premise" that certain counts of his conviction carry mandatory minimum terms of incarceration that must run consecutively to one another.
For the reasons discussed herein, Aponte's petition is denied.
Aponte was originally indicted on August 13, 2002. More than a year later, Aponte was named in a three-count superseding felony information. Count One of the superseding information charged Aponte with using and brandishing a firearm during a robbery in the Bronx, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 18 U.S.C. § 2. Count Two of the superseding information charged Aponte with robbing the occupants of a Manhattan apartment and assaulting one of the occupants with a firearm, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), 18 U.S.C. § 924(c)(1)(C)(i), and 18 U.S.C. § 2. Count Three of the superseding information charged Aponte with using a cellular telephone in furtherance of a conspiracy to distribute and possess drugs obtained in robberies of drug dealers, in violation of 21 U.S.C. § 843(b). On September 26, 2003, Aponte entered a plea of guilty to Counts One through Three of the superseding information.
Prior to pleading guilty, Aponte entered into a plea agreement. That agreement detailed the sentence that the parties expected Aponte would face as a result of his guilty plea to the three offenses described above. Namely, the signed plea agreement specified that: Count One carried a seven-year mandatory minimum term of incarceration because, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), a firearm was used and brandished in furtherance of a violent crime; Count Two carried a twenty-five year mandatory minimum term of incarceration because it was a second or subsequent conviction pursuant to 18 U.S.C. § 924(c)(1)(C)(i); and Count Three carried a statutory maximum term of incarceration of four years.*fn1 Additionally, the plea agreement stipulated that the sentences on Counts One and Two must be served consecutively to one another and to any other sentence of imprisonment.
On January 9, 2004, this Court sentenced Aponte to the mandatory minimum sentence of incarceration of seven years on Count One, the mandatory minimum sentence of incarceration of twenty-five years on Count Two, and the maximum sentence of four years of incarceration on Count Three.*fn2 The custodial sentences for each count were imposed to run consecutively, resulting in a total term of imprisonment of thirty-six years, or 432 months.
II. Procedural Background
Aponte filed the instant petition on March 17, 2010.*fn3
In his petition, Aponte challenges the validity of his plea
and sentence on the grounds that both parties failed to properly
construe § 924(c)(1)(A), which sets forth sentences to be imposed when
a person possesses a firearm "during and in relation to any crime of
violence or drug trafficking crime."
18 U.S.C. § 924(c)(1)(A).*fn4 Relying on United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), Aponte argues that the parties and the Court misconstrued the "except" clause of § 924(c)(1)(A). According to Aponte, because he was subject to a greater mandatory minimum on Count Two, the Court should not have imposed consecutive mandatory minimum terms of incarceration.
In June 2010, Aponte filed a request to stay his petition, arguing that the Supreme Court of the United States had granted certiorari in Abbott v. United States, 559 U.S. ___, 130 S. Ct. 1284, 175 L. Ed. 2d 1073 (2010) and Gould v. United States, 559 U.S. ___, 130 S. Ct. 1283, 175 L. Ed. 2d 1073 (2010) to address two courts' interpretation of the "except" clause. According to Aponte, the Supreme Court's forthcoming decision in those consolidated cases would have a "significant, if not dispositive, impact on this case."
On June 17, 2010, the Court granted Aponte's application for a stay and directed the parties to file answering and/or supplemental papers within thirty days of the Supreme Court's decision. Approximately five months later, on November 15, 2010, the Supreme Court issued an opinion in the above-mentioned cases. 131 S. Ct. 18, 178 L. Ed. 2d 348 (2010) (hereinafter "Abbott").
On December 14, 2010, the Government filed a memorandum of law in opposition to Aponte's petition. In its memorandum, the Government argues that Aponte's effort to seek a writ of audita querela is procedurally improper and that Aponte's substantive argument ...