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Federal Sentencing: Interpretation of 18 U.S.C. §924(c), – Penalties for Possession of Firearms Carries Consecutive Sentence

ABBOTT v. UNITED STATES
Decided November 15, 2010 United States Supreme Court

Issue : Whether the mandatory minimum sentence provided under 18 USC §924(c)(1)(A) run concurrently or consecutively to another count that carries a longer than ordinary mandatory minimum sentence.

Holding : the Supreme Court affirmed the additional consecutive sentences under 18 USC §924(c) stating that the amendment to the statute clearly demonstrated the intention of congress to impose additional consecutive sentences on crimes involving the possession of deadly weapons in connection with any crime of violence or drug trafficking.

Facts : Petitioners Abbott and Gould, defendants in unrelated prosecutions, were charged with drug and firearm offenses, including violation of 18 U. S. C. §924(c), which prohibits using, carrying, or possessing a deadly weapon in connection with “any crime of violence or drug trafficking crime,” §924(c)(1). The minimum prison term for a §924(c) offense is five years, §924(c)(1)(A)(i), in addition to “any other term of imprisonment imposed on the [offender],” §924(c)(1)(D)(ii).

Abbott was convicted on the §924(c) count, on two predicate drug-trafficking counts, and of being a felon in possession of a firearm. He received a 15-year mandatory minimum sentence for his felon-in-possession conviction and an additional five years for his §924(c) violation.

Goulds predicate drug-trafficking crime carried a ten-year mandatory minimum sentence; he received an additional five years for his §924(c) violation.

On appeal, Abbott and Gould challenged their §924(c) sentences, resting their objections on the “except” clause prefacing §924(c)(1)(A). That clause provides for imposition of a minimum five year term as a consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by [§924(c) itself] or by any other provision of law.” Abbott urged that the “except” clause was triggered by his 15-year felon-in-possession sentence; Gould said the same of the ten years commanded by his predicate trafficking crime.

Abbott and Gould, defendants in unrelated prosecutions, were each charged with violating §924(c)(1)(A)(i) by possessing a firearm in furtherance of a drug-trafficking crime. Abbotts case was tried to a jury in the Eastern District of Pennsylvania, which convicted him on the §924(c) count and three others: two predicate trafficking counts, 21 U. S. C. §§841, 846, and being a felon in possession of a firearm, 18 U. S. C. §922(g). Given Abbotts extensive criminal history, his felon-in-possession conviction triggered a 15-year mandatory minimum under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e).

The District Court sentenced Abbott to the 15 years mandated by ACCA, and to an additional five years for the §924(c) violation, yielding a total prison term of 20 years.

Goulds indictment listed seven separate drug and firearm charges. In return for Goulds agreement to plead guilty, the Government dropped all but two: one §924(c)

offense and one predicate drug-trafficking crime. The latter, for conspiracy to possess with intent to distribute cocaine base, carried a ten-year mandatory minimum under §841(b)(1)(A). Firearm involvement was not an element of that offense. The United States District Court for the Northern District of Texas imposed a sentence of 11 years and 5 months for the trafficking offense and an additional five years for the §924(c) violation, for a total of 16 years and 5 months.

Legal Analysis : 18 USC §924(c)(1) makes it a discrete offense to use, carry or possess a deadly weapon in connection with any crime of violence or drug trafficking crime. The minimum prison term for the offense described in §924(c) is five years, §924(c)(1)(A)(i), in addition to “any other term of imprisonment imposed on the [offender],” §924(c)(1)(D)(ii).

§ 924(c) has an “except” clause. Under the except clause, a minimum term of five years shall be imposed as a consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by [§924(c) itself] or by any other provision of law.”

§924(c)(1)(A) states: 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.

The term of imprisonment shall run consecutively according to §924(c)(1)(D)(ii), which states:

“[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

The leading portion of the “except” clause, which now prefaces §924(c)(1)(A), refers to a “greater minimum sentence . . . otherwise provided by this subsection,” i.e., by §924(c) itself; the second segment of the clause refers to a greater minimum provided outside §924(c) “by any other provision of law.” Beyond debate, the latter instruction does not relieve a §924(c) offender of additional punishment “simply because a higher mandatory minimum sentence exists in the United States Code.

The Supreme Court stated: We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a §924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the “except” clause as we comprehend it, a §924(c) offender is not subject to stacked sentences for violating §924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.

In imposing a sentence for a §924(c) violation “[e]xcept to the extent that a greater minimum sentence is otherwise provided . . . by any other provision of law,” Congress meant:

“[I]f another provision of the United States Code mandates a punishment for using, carrying, or possessing a firearm in connection with a drug trafficking crime or crime of violence, and that minimum sentence is longer than the punishment applicable under §924(c), then the longer sentence applies. This reading gives effect to the statutory language commanding that all §924(c) offenders shall receive additional punishment for their violation of that provision, a command reiterated three times.

First, the statute states that the punishment specified in §924(c)(1) “shall” be imposed “in addition to” the penalty for the predicate offense. §924(c)(1)(A).

Second, after Busic, §924(c) demands a discrete punishment even if the predicate crime itself “provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device.”

Third, §924(c)(1)(D)(ii) rules out the possibility that a §924(c) sentence might “run concurrently with any other term of imprisonment. Interpreting the “except” clause to train on conduct offending §924(c) also makes sense as a matter of syntax. The “except” clause is not a standalone enactment, or even a standalone sentence. Rather, it precedes and qualifies §924(c)(1)(A)s principal clause, which punishes the possession of a firearm in connection with specified predicate crimes. The “grammatical and logical scope” of a proviso, we have held, “is confined to the subject-matter of the principal clause” to which it is attached. United States v. Morrow, 266 U. S. 531, 534–535 (1925). As a proviso attached to §924(c), the “except” clause is most naturally read to refer to the conduct §924(c) proscribes.

For the reasons stated, the judgments of the Court of Appeals for the Third Circuit and the Court of Appeals for the Fifth Circuit are Affirmed.