Monday, October 18, 2010

Supreme Court Preview 924(c) Except Clause

An important case was heard on October 6, 2010 by the Supreme Court that will have ramifications for many that practice in the federal criminal context. In Abbott v. United States and Gould v. United States, the Court heard argument on whether two defendants were improperly sentenced to consecutive five-year prison terms under 18 U.S.C. § 924(c) when they were subject to a greater minimum sentence on a different count of conviction. The "except clause" mandates a five-year consecutive sentence for 924 Section (c)(1)(A), but exempts defendants “to the extent that a greater minimum sentence is otherwise provided by this subsection or any other law." Some courts have interpreted the clause to mean that if a longer mandatory minimum applies (e.g. 10 years for a narcotics offense) the 5 year count can run concurrently. Gonzaga's own Brooks Holland wrote this excellent piece for the ABA-previewing the argument, and laying out the four ways the Court could decide the issue. Here is an excerpt from the full article that provides clarity on at least the options if not yet the answers. Stay tuned: (full article here):

The Supreme Court will need to decide between two competing understandings of § 924(c)(1)(A). Petitioners present this provision as a true minimum sentence, ensuring that defendants subject to it serve at least five years in prison. If another statute does this job, § 924(c)(1)(A) is obviated and no longer applies. The government, by contrast, treats the provision as a sentencing bonus, ensuring that defendants subject to it receive at least five additional years in prison, cumulative to any other sentence. The “except” clause applies only if another statute more severely punishes that § 924(c) offense.
The parties’ briefs thus present the Supreme Court with four potential constructions of § 924(c)(1)(A)’s except clause. The Court could construe the “except” clause narrowly, as the government advocates, exempting defendants from a mandatory consecutive sentence only if a minimum sentence outside of § 924(c) more severely punishes that § 924(c) offense. According to the parties’ briefs, this construction likely would bring only one current law outside of § 924(c) into its except clause: 18 U.S.C. § 3559(c), which provides a life sentence for certain repeat offenders who violate § 924(c). This construction consequently would impact very few cases, and would exclude both Abbott and Gould. Although an aggressively narrow construction of § 924(c)(1)(A), the government’s position has been embraced by several circuit courts.
At the other end of the spectrum, the Supreme Court could adopt Gould’s broad reading of § 924(c)(1)(A) and hold that any greater minimum sentence applicable to a defendant at sentencing triggers the except clause. This position has not been adopted explicitly in the circuit courts, but it is supported in amicus briefs filed by the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums.
In between these constructions, the Supreme Court could limit the “except” clause, as Abbott argues, to any greater minimum sentence arising from the same criminal transaction as the § 924(c) offense, including any predicate drug trafficking or violent crime, such as a CSA conviction. A majority of circuit courts have rejected this approach. The second circuit, however, recently embraced this construction, see United States v. Williams, 558 F.3d 166 (2nd Cir. 2009), as did the Sixth Circuit. See United States v. Almany, 598 F.3d 238 (6th Cir. 2009). This position also is supported by the American Bar Association’s amicus brief, which argues against the government practice of “stacking” mandatory minimum sentences against defendants. Alternatively, the Supreme Court could read the “except” clause to include greater minimum sentences for any firearm offense involving the same firearm as the § 924(c) offense. Abbott offers this construction as a backstop to prevent what he terms “double counting” of firearms between § 924(c) offenses and other firearm offenses with greater minimum sentences. This question has split the circuit courts fairly evenly. This narrower construction of § 924(c) would favor only Abbott, however, whose § 924(c) sentence ran consecutively to an ACCA sentence for firearm possession. Gould’s § 924(c) sentence ran consecutively to a predicate drug trafficking crime under the CSA. Gould thus does not advocate Abbott’s alternative construction.

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