PC World

United States v. Echeverry, No. 10-2828-cr (2d Cir. August 19, 2011) (Winter, Parker, Chin, CJJ) (per curiam)

The facts of this latest per curiam could have been pulled straight from a law school exam. During an ongoing narcotics conspiracy, Echeverry and his accomplice attempted to recover stolen narcotics from a third person; they possessed and brandished a gun but, during the incident, the intended victim grabbed it and discharged it, wounding the accomplice.

The issue was whether Echeverry should get the seven-year brandishing § 924(c) sentence or the ten-year discharge § 924(c) sentence. The district court gave him the longer sentence, holding that if a defendant possesses a firearm during a drug-trafficking offense he is responsible for a subsequent discharge of that firearm, no matter who fires it.

The circuit affirmed. The statute provides that the enhanced sentence applies “if the firearm is discharged,” and “does not require that the firearm be discharged by the defendant.” In addition, the recent Supreme Court case, Dean v. United States, which held that the discharge enhancement applied when the gun went off accidentally, controls. The use of the passive voice in the statute indicates that the statute focuses “on an event that occurs without respect to any specific actor.” Thus, a defendant “need not directly cause a discharge to be subject to the firearm-discharge enhancement.”

Abbott Hole

United States v. Tejada, No. 07-5289-cr (2d Cir. February 9, 2011) (Leval, Raggi, CJJ, Gleeson, CJ)

The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court's decisions in Williams and Whitley. And indeed it was. However, as this decision recognizes, those cases were abrogated by the Supreme Court in Abbot v. United States, 131 S.Ct. 18 (2010).

At issue is an inscrutable phrase in § 924(c): "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law," a person convicted of violating § 924(c) must receive a specified mandatory minimum sentence and that sentence must be consecutive to any other term of imprisonment. Whitley held that this language meant that the § 924(c) sentence did not apply if the defendant received a higher mandatory minimum sentence for gun possession - in that case a 15-year Armed Career Criminal Act sentence. Williams held that the § 924(c) sentence did not apply if the defendant, as here, received a higher mandatory minimum sentence for drug trafficking.

But Abbott held that the "except" clause in § 924(c) related only to "the conduct § 924(c) itself proscribes, i.e., possessing a firearm in connection with a predicate crime." Under Abbott, the exemption from the § 924(c) sentence only applies where the defendant is subject to an "even greater mandatory minimum" under § 924(c). Since that was not the case for the defendant here, the circuit affirmed.

Same S***, Different Day

United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)

Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count. On appeal, he argued that under United States v. Williams, 558 F.3d 166 (2d Cir. 2009) and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), he was ineligible for the § 924(c) sentence. The circuit affirmed, because conduct underlying the drug count that carried the ten-year mandatory minimum and that underlying the § 924(c) count occurred on different dates.

Parker was charged in a multi-count indictment that covered several different dates. As pertinent here, the § 924(c) count (Count One), charged that Parker used or possessed a gun in connection with a crack sale (Count Two), a violation of 21 U.S.C. § 841(b)(1)(C), that carried no mandatory minimum sentence. Both Count One and Count Two alleged conduct that occurred on July 19, 2002.

Count Five of the indictment alleged additional crack activity occurring April 30 to May 1, 2002, and charged a violation of 21 U.S.C. § 841(b)(1)(B). This count carried a ten-year mandatory minimum - the usual (b)(1)(B) five-year term, doubled due to Parker’s prior drug felony conviction. Since § 924(c) requires that the five-year mandatory minimum be imposed consecutive to any other sentence imposed on the defendant, the district court found that Parker was subject to a 180-month mandatory minimum, and imposed that sentence.

On appeal, the circuit affirmed. While it is true that Williams holds that a § 924(c) sentence cannot be imposed on a defendant who faces a higher drug-related mandatory minimum, the circuit distinguished Williams because, here, “the predicate drug crime underlying Parker’s [§ 924(c)] conviction [did] not dictate a mandatory minimum sentence.” The drug offense that carried the mandatory minimum occurred on a different date, and the Whitley/Williams rule was therefore not “called into play.” That rule applies only to “minimum sentences for predicate statutory offenses arising from the same criminal transaction or operative set of facts.” (emphasis in original). Thus, even though Count Five carried a greater minimum sentence than that prescribed by § 924(c), Parker was still eligible for the § 924(c) sentence because he was not convicted of using or carrying a gun in connection with that count.

Off-Whitley

United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)

Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except "to the extent that a greater minimum sentence is otherwise provided by ... any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir. 2008), the defendant received a fifteen-year mandatory minimum under the Armed Career Criminal Act, and a five-year consecutive 924(c) sentence. The court held that the “except” clause exempted the defendant from the 924(c) sentence, since he was subject to a greater minimum on the ACCA count. Whitley left open whether the “except” clause applied to non-firearms offenses. Here, a different panel, following Whitley, answered that question with a resounding “yes.”

The government made largely the same arguments it made in Whitley, and the court again rejected them. First, it held that the statutory text supported Williams. The phrase “any other provision of law” includes all crimes that carry a mandatory minimum sentence, as long as the firearm was possessed in connection with a predicate offense arising from “the same criminal transaction or operative set of facts.”

Nor does this interpretation produce “anomalous sentencing results.” Exempting the defendant from the 924(c) sentence in some cases does not mean that he will necessarily get a lower sentence than Congress prescribed. A court could, as a matter of discretion, impose the same sentence on the predicate that the defendant would have received if he had been subject to both the predicate and the 924(c) sentences.

Run-On Sentence

United States v. Chavez, No. 05-4679-cr (2d Cir. December 8, 2008) (Kearse, Calabresi, Sack, CJJ)

Jaime Chavez was convicted after a jury trial of a drug conspiracy and a § 924(c) offense, and faced a 50-year mandatory minimum: due to a prior conviction there was a 20-year minimum on the drug charge; and, because the gun had a silencer, he faced a 30-year mandatory consecutive sentence for the gun. The guidelines recommended a minimum sentence of 60 years; 30 for the drugs plus 30 for the gun, and the district court sentenced him to 55 years.

Chavez had asked the court to shorten the sentence on the drug charge in light of the long sentence he faced for the gun, but the district court concluded that it could not lawfully do this. Rather, the court independently selected 25 years as the appropriate sentence for the drug conspiracy, then imposed the mandatory 30-year § 924(c) sentence.

On appeal, Chavez argued that the district court misunderstood its sentencing authority, but the circuit affirmed. It read § 924(c) as “plainly designed to impose penalties that are cumulative to the penalties imposed for other crimes.” Moreover, there is nothing in § 3553(a) that would give a district court the authority to reduce a sentence on one count in light of the penalties prescribed for another: “consideration of only the factors set out in § 3553(a) could lead the court to conclude that a shorter total sentence than the total specified for a § 924(c) conviction and recommended for the underlying crime would be appropriate.” Thus, a sentencing court must first determine the appropriate prison term for the count to which the § 924(c) count is to be consecutive, then impose the gun sentence. If the court reduces the prison term on the underlying count on the ground that the total sentence is too severe, it “conflates the two punishments and thwarts the will of Congress that the punishment imposed for violating § 924(c) be” additional and consecutive.

Comment

This decision is unconvincing. Several of the § 3553(a) factors arguably permit a sentencing court to consider the § 924(c) sentence in selecting an appropriate sentence on the underlying count: the "nature and circumstances of the offense"; the need for the sentence to reflect the "seriousness of the offense"; the "respect for the law" and "just punishment" provisions and the deterrence provisions all seem to cover this. Moreover, in a similarly structured statue, 18 U.S.C. § 1028A, which mandates a 2-year consecutive sentence for aggravated identity theft, Congress specifically directs that the sentencing court “shall not in any way reduce the term to be imposed” on the underlying offense “so as to compensate for, or otherwise take into account,” the § 1028A sentence. The absence of a similar instruction in § 924(c) would seem to suggest that the circuit got this one wrong. Finally, and in any event, under Kimbrough, district courts are clearly permitted to “thwart the will of Congress” in exercising their sentencing discretion.