08-3859-cr

United States v. Smith

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New

York, on the 18th day of March, two thousand eleven.

PRESENT: ROBERT D. SACK,

REENA RAGGI,

PETER W. HALL,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

 v. No. 08-3859-cr

ODIS LAMAR SMITH,

Defendant-Appellant.

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FOR APPELLANT: MARK D. HOSKEN, Federal Public Defender’s Office,

Western District of New York, Rochester, New York.

FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant United States Attorney,

for William J. Hochul, Jr., United States Attorney for the

Western District of New York, Buffalo, New York.

Appeal from the United States District Court for the Western District of New York

(Charles J. Siragusa, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2

DECREED that the order of this panel, entered on May 12, 2010, is VACATED IN PART,

and the judgment of the district court, entered on August 4, 2008, is AFFIRMED.

Defendant Odis Lamar Smith pleaded guilty to possession with intent to distribute and

distribution of 50 grams or more of cocaine base, see 21 U.S.C. § 841(a)(1), and possession

of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1), and the

district court imposed consecutive sentences of 180 months on the narcotics count and 60

months on the firearms count. On appeal, we held that the district court properly calculated

Smith’s Guidelines range as a career offender, but vacated his sentence and remanded for

resentencing pursuant to our decisions in United States v. Whitley, 529 F.3d 150 (2d Cir.

2008), and United States v. Williams, 558 F.3d 166 (2d Cir. 2009). See United States v. Smith,

376 F. App’x 140, 142 (2d Cir. 2010). Before resentencing, the Supreme Court decided Abbott v.

United States, 131 S. Ct. 18 (2010), abrogating our decisions in Whitley and Williams, see, e.g.,

United States v. Tejada, 631 F.3d 614, 618-19 (2d Cir. 2011), and the government moved to recall

the instant mandate. We granted that motion and, having reviewed the parties’ supplemental

submissions, we agree with their joint assessment that our decision to remand for resentencing must

be reversed in light of Abbott and that the district court’s judgment must be affirmed in full.

Accordingly, the order of this panel, entered on May 12, 2010, is VACATED IN PART to

the extent it vacated sentence and remanded for resentencing, and the judgment of the district court,

entered on August 4, 2008, is AFFIRMED in its entirety.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court