Issues
Which, if any, federal criminal statute with a mandatory minimum sentence of five years or more can trigger the "except" clause in 18 U.S.C. § 924(c)?
In two separate and unrelated cases, Kevin Abbott and Carlos Rashad Gould were convicted for violating 18 U.S.C. § 924(c) by possessing weapons in the furtherance of a violent or drug trafficking crime. Abbott and Gould were also sentenced for their underlying crimes, both of which required a minimum sentence of greater than five years. Abbott's and Gould's respective sentencing judges both included an additional five-year sentence for violation of 18 U.S.C. § 924(c), on the grounds that this was a mandatory minimum sentence. Abbott and Gould appealed, arguing that they qualified for an exception to 18 U.S.C. § 924(c) because the minimum sentences for their underlying offenses were greater than five years. The appeals courts affirmed the lower courts' decisions. Certiorari was granted to answer which federal criminal statutes that carry a minimum sentence greater than five years, if any, trigger the "except" clause in 18 U.S.C. § 924(c).
Questions as Framed for the Court by the Parties
Abbott
18 U.S.C. § 924(c)(1)(A) provides, in part, that a person convicted of a drug trafficking crime or crime of violence shall receive an additional sentence of not less than five years whenever he “uses or carries a firearm, or * * * in furtherance of any such crime, possesses a firearm” unless “a greater minimum sentence is * * * provided * * * by any other provision of law.” The questions presented are:
1. Does the term “any other provision of law” include the underlying drug trafficking offense or crime of violence?
2. If not, does it include another offense for possessing the same firearm in the same transaction?
Gould
18 U.S.C. § 924(c)(1)(A) requires a 5-year minimum sentence for possessing a firearm in furtherance of a drug-trafficking crime – “[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law.”
3. Did the U.S. Court of Appeals for the Fifth Circuit correctly hold, despite this “except” clause, that a defendant is subject to the 5-year minimum sentence for the firearm possession even though another provision of law requires a greater minimum sentence for another count of conviction?
Facts
Abbott
In 2004, Petitioner, Kevin Abbott, and Michael Grant were selling drugs out of a house in Philadelphia. Abbott and Grant had sold heroin and crack cocaine several times to a confidential informant during September of 2004. On September 23, after obtaining a search warrant, the police arrested Abbott and Grant following yet another drug purchase by the confidential informant. When Abbott was arrested, drugs, cash, and a false driver’s license were found on his person. Drugs, drug paraphernalia, and two handguns were found in the house.
Grant and Abbott were both charged with four-count indictments. Grant pled guilty to all four charges and Abbott was found guilty of all four charges after a jury trial. The district court sentenced Abbott to what it deemed to be the statutory minimum of 240 months imprisonment. Abbott’s sentence consisted of two consecutive terms of imprisonment: 180 months for possession of a firearm by a convicted felon, and 60 months for possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c).
Under 18 U.S.C. § 924(c), the district court determined that a mandatory-minimum sentence of 60 months must be imposed when a firearm is used in furtherance of a drug trafficking crime and that the sentence may not run concurrently with any other sentence. Abbott appealed the court’s additional 60 month sentence, claiming that the additional term was not appropriate because the prefatory clause of Section 924(c), which states that a mandatory minimum sentence applies “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or any other provision of law.” Abbott’s theory was that he did not have to serve the additional 60 months because he was convicted under a statute that carried a greater minimum sentence. The U.S. Court of Appeals for the Third Circuit disagreed with Abbott’s interpretation of the statute and affirmed the sentence imposed by the District Court.
Gould
On May 9, 2005, the Wichita Falls Police Department executed a search warrant on a house in which Petitioner, Carlos Rashad Gould, was present. Gould fled on foot from the house and was arrested after a short chase. The police found on his person cocaine base and marijuana. Drugs and firearms were found at the house. Further, in a car parked in the driveway, the police found Gould’s Social Security card, firearms, ammunition and drugs.
Gould pled guilty to two charges: conspiracy to possess with intent to distribute fifty grams or more of cocaine base, and possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). Gould argued on appeal that the prefatory exception clause in 18 U.S.C. § 924(c) prevented the district court judge from sentencing Gould to an additional 60 months because he pled guilty to a crime that carries a higher minimum sentence. The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s sentence.
On January 25, 2010, the Supreme Court granted certiorari and consolidated the Abbott and Gould cases to settle a circuit split over whether a mandatory minimum sentence for drug trafficking while in possession of a firearm should apply when another count already carries a greater mandatory minimum sentence. See Abbott v. United States, 130 S.Ct. 1284 (2010); Gould v. United States, 130 S.Ct. 1283 (2010).
Analysis
This case turns on the construction of the “except” clause of 18 U.S.C. § 924(c), which requires a mandatory minimum sentence for carrying a weapon in furtherance of a violent or drug trafficking crime“[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law.” The principal argument centers on what offenses trigger the “except” clause, and whether the lower courts’ construction of the statute comports with its plain meaning and legislative history.
Plain Meaning of the Statute
Petitioners, Abbott and Gould, contend that in constructing the “except” clause of Section 924(c), the court should utilize the plain or ordinary meaning to the text of the statute. To determine the statute’s plain meaning, Abbott and Gould urge the court to focus on prior judicial constructions of the phrase “any other provision of law.” ;
Specifically, Abbott and Gould note that the Supreme Court has applied the plain meaning construction to nearly identical language found in Section 924(c)(1)(D)(iii). . Abbott and Gould point out that the Court has previously interpreted the “any other provision of law” language to mean an open class and that this evinces Congress’s intention that the “any other provision of law” must mean any provision of law found in the United States Code besides Section 924(c). According to Abbott and Gould, under this expansive, plain meaning construction, the “except” clause in Section 924(c) prohibits any additional mandatory-minimum sentence for possessing a firearm in furtherance of drug trafficking or a crime of violence if one of the defendant’s counts of conviction imposes a greater mandatory-minimum sentence than that prescribed by Section 924(c). Moreover, Abbott emphasizes that Section 924 uses the phrase “any other provision of law” six times, and the Court’s precedent establishes that phrases occurring more than once in a statute must be construed uniformly.
The United States argues that the plain meaning of the “except” clause of Section 924(c) refers to mandatory sentences for the same offense defined in Section 924(c), and that the sentence may be within Section 924(c) or elsewhere in United States Code. In support of this construction of Section 924(c), the United States first notes that the “except” clause does not specifically state what type of offense triggers the “except” clause. Further, the United States argues, if the “except” clause was taken by its most literal meaning, the “except” clause could be triggered by any offense in United States Code that imposes a mandatory-minimum sentence greater than five years. Moreover, the United States underscored that several lower courts have held that the “except” clause is triggered by penalty provisions elsewhere in United States Code that require “a higher minimum sentence for that § 924(c) offense.” The United States further contends that a narrow construction of Section 924(c) comports with the canon of statutory construction that the meaning of specific statutory language should be interpreted in context with other words within the statute. Following this canon as a guide, the United States contends that the phrase “by this subsection or by any other provision of law” refers to the sources of law that may trigger the “except” clause. Thus, the United States maintains that a natural reading of “any other provision of law” must then refer to other provisions of United States Code that address the same offense as Section 924(c).
Purpose and Legislative History
In support for their interpretation of Section 924(c), Abbott and Gould argue that their construction supports the purpose of Section 924 and is supported by the legislative history of the statute. Abbott and Gould note that in 1998, Section 924(c) was amended by Congress with the purpose of ensuring that anyone using a gun in furtherance of drug trafficking or a crime of violence serves at least five years in prison. Moreover, Abbott insists that the United States’ narrow construction is implausible because Congress would then be imposing mandatory minimum sentences for a single offense in different provisions of United States Code. .
The United States, however, points out that Congress has imposed mandatory minimum sentences for a single offense in more than more than one place—Sections 3559(c) and924(j)(1). Section 3559(c)—known as the “three-strikes” law—imposes lifetime incarceration for defendants previously convicted of two or more serious felonies, including “firearm possession (as described in section 924(c)).” Section 924(j)(1) provides that a person who commits murder with a firearm in furtherance of a Section 924(c) offense may be sentenced to death. Furthermore, the United States points out that, in 1998, Congress made parallel amendments to Section 924(c) and the “three-strikes” law to ensure that both statutes were linked. Thus, the United States argues, contrary to Abbott’s and Gould’s characterization of this as “implausible” and “far-fetched,” the “three-strikes” law and 924(j)(1) demonstrate that Congress has enacted statutes outside of Section 924(c), establishing penalties for that same 924(c) offense.
Abbott contends that this aspect of the United States’ argument fails because the “three-strikes” lawimposes a life sentence upon conviction, thus making any mandatory minimum sentence under Section 924(c) irrelevant. Secondly, Abbott argues that the United States’ reliance on Section 924(j)(1) is misplaced because that statute can never trigger the “except” clause because Section 924(j)(1) does not impose any mandatory minimum sentence. Thus, Abbot maintains that the “three-strikes” law and 924(j)(1)do not support the United States’ construction. Abbott and Gould further argue that these supposed anomalous results do not reflect reality because the discussion pertains to minimum sentences that may be increased by federal sentencing guidelines and the judge’s discretion, based on culpability and sentencing enhancements.
Lastly, the United States argues that both Abbott’s and Gould’s constructions of Section 924(c) are incorrect because their interpretation would lead to anomalous results when applied. Under both Abbott’s and Gould’s construction, less culpable defendants potentially would face higher sentences than more culpable defendants. According to the United States, three anomalous situations may arise from this interpretation: (1) a defendant may receive a conviction without a sentence; (2) less culpable defendants may receive greater sentences than more culpable defendants; and (3) the United States would have discretion to determine a defendant’s sentence based on what manner of charges are indicted.
Rule of Lenity
Lastly, Abbott and Gould argue that, under the rule of lenity, the court must resolve any ambiguity in the statutory language of Section 924(c) in their favor. . In particular, Abbott notes that the Circuit Courts are split on interpreting Section 924(c). Although the existence of a circuit split does not definitely prove ambiguity, Abbott and Gould contend that the split supports the inference that the United States’ construction of the statute is not unambiguously correct. Further, Abbott points out that the United States’ construction has changed three times in the last two years, noting that its current interpretation itself is ambiguous as to the precise scope of the “except” clause.
The United States, however, contends that the “text, context, purpose, and history” of the “except” clause are unambiguous and make it clear that a defendant must be sentenced to the longest-possible minimum sentence for the Section 924(c) offense, regardless of whether the sentence is specified in that subsection or some other section of the law. In order to properly apply the rule of lenity, the United States cites a line of cases that support the proposition that the rule of lenity applies only if “grievous” ambiguity remains after examining every source of guidance. Thus, the United States contends that because statutory canons and Congressional intent are clear, the rule of lenity does not apply.
Discussion
This case will allow the Supreme Court to settle a circuit split over the question of whether defendants convicted under 18 U.S.C. § 924(c) must be sentenced to an additional five year prison term if they are also convicted under a statute that carries a greater minimum sentence. This ruling will affect defendants who are convicted or pled guilty to possession of a firearm in furtherance of a drug trafficking or violent crime in violation of Section 924(c) as well as a crime that carries a minimum sentence of greater than 5 years.
Petitioners, Kevin Abbott and Carlos Rashad Gould, argue that the “except” clause of Section 924(c) reference to “any other provision of law” means any other statute that the defendant is charged with and that carries a greater minimum sentence. In contrast, the United States contends that the “except” clause of Section 924(c) applies only to greater mandatory minimum sentences required by that statute or other statutes for the same offense.
If the Court decides that the “except” clause refers only to that subsection and other statutes punishing the same offense, petitioners and several other amici curiae argue that it will lead to unnecessary and overly punitive sentences. Families Against Mandatory Minimums (“FAMM”) argues that deterrence of crime results from the certainty of punishment and not the severity of punishment. FAMM insists that, at a certain point, increasing the severity of punishment does not deter potential criminals significantly more because of discounting, which is a phenomenon in human psychology that makes a benefit or harm to be imposed in the future seem less significant than a present benefit or harm. FAMM further argues that the “except” clause reflects a Congressional belief that mandatory minimums are excessively severe and ineffective at deterring crime. FAMM also maintains that Congress was aware of the fact that as people age, they become significantly less likely to commit crimes and did not intend to imprison criminals for longer than necessary.
In response, the United States contends that if the Court decides that the “except” clause refers to all other provisions of law, regardless of whether it punishes the same offense, the statute’s purpose would be greatly undermined. The United States points out that the statute, under this interpretation, would not have effect when a defendant is charged with a state crime or an unrelated charge with a higher minimum sentence. The United States takes the position that increased severity of punishment results directly in increased deterrence and that Congress wrote Section 924(c) with that as its main goal. The United States argues that this statute was intended to create even steeper penalties for those who commit crimes with the aid of firearms, showing that Congress’s intent was not only to ensure punishment, but to increase it.
The American Bar Association (“ABA”) notes the growing support for increased judicial discretion in the legal profession at the time of Section 924(c)’s writing. The ABA specifically mentions that, in 1990, the United States Sentencing Commission studied the effectiveness of mandatory minimums and found that a majority of judges as well as panel attorneys and defense attorneys opposed minimum sentencing.
The United States argues that Abbott’s and Gould’s reading could create anomalous sentencing where more culpable defendants receive a shorter minimum sentence than a less culpable defendant. The United States notes that the sentence imposed on a defendant could be influenced by the judge and jury, which would lead to less equality in sentencing for the same crimes. Further,the United States contends that Abott’s and Gould’s interpretation of the statute would lead to too much prosecutorial discretion. According to the United States, if Abbott and Gould prevail in Court, a defendant charged with a violation of Section 924(c) as well as other crimes carrying higher minimum sentences could receive the additional five-year sentence depending due to the prosecutor’s decision of whether to charge the crimes in separate instruments.
Conclusion
This case turns on the statutory construction of Section 924(c), and signifies an important decision on the sentencing given to defendants convicted of possessing a firearm in furtherance of drug trafficking or a crime of violence. Abbott and Gould contend that a natural reading of the “except” clause is that it exempts 924(c) mandatory minimum sentences when any other greater mandatory sentence, arising out of the same criminal transaction, applies. The United States argues that the lower courts’ construction of 924(c) is correct, and a 924(c) mandatory minimum sentence must run consecutive to any other mandatory sentence. However this case is resolved, the court’s decision will significantly impact the prosecution and sentence calculation of certain violent and drug trafficking offenses.
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Additional Resources
· Findlaw.com: No Discretion for Judges with Mandatory Sentences (April 1, 2010)
· United States Sentencing Commission: 1991 Sentencing Commission Report