Live by the Sword, Die by the Sword – Update for April 4, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.



Outside of TV cop shows, no one likes drug dealers or violent criminals waving firearms around, which is probably why no crime this side of kiddie porn is easier to demagogue than laws that slam gun-toting criminals.

gun160718Take 18 USC 924(c), which sets penalties for criminals who use, carry or possess a gun “during and in relation to” a crime of violence or drug-trafficking offense. A defendant convicted of a 924(c) offense must get a mandatory sentence of at least 5 years (with increased penalties if the perp “brandished” it or fired it, and whopping increases if, for example, it was fully automatic). What’s even more impressive, the statute raises the mandatory minimum to 25 years for the second offense. Oh yeah, and all 924(c) penalties must be consecutive to any other sentence.

Watch how the math works: On Monday, Bart Badguy robs a convenience store with a .44 Klutzman stuck in his waistband, and makes off with a bag of Doritos. Realizing later that he has nothing to dip it in, he robs another convenience store the next day, the same revolver displayed under his belt, and grabs some French onion dip. The federal sentencing guidelines set him at 63-78 months for the two robberies, and the court sentences Bart at the bottom (understanding what hunger can do to a man).

doritos170404But Paula Prosecutor is a canny lawyer, and she thus had the foresight to get Bart indicted for two 924(c) counts along with the two robberies. The first 924(c) count adds 60 months to the 63 months the district court imposed for the robberies. The second 924(c) count – arising from Bart’s going back for the dip – adds 300 months to the robberies and the first 924(c) conviction. Total sentence: 403 months (35¼ years) for chips and dip.

No one would argue against punishing crimes of violence involving guns more harshly than other offenses. Shooting legend Elmer Keith is credited with observing that one should never bring a knife to a gunfight, and the sentiment – that people carrying guns are likely to use them – undergirds 924(c).

knifegunB170404But the statute is inflexible, and the government has had its fun with it as a result. While Congress probably meant that a second 924(c) conviction – carrying a 25-year mandatory minimum – had to follow a prior 924(c) conviction, prosecutors years ago sold the Supreme Court that the statute did not say there had to be an intervening conviction. In Deal v. United States, a 1994 decision, the Supreme Court held that a drug-addled bank robber who held up six banks in a 3-month period – carrying a gun for all of them – had to get a 105-year sentence.

Yesterday, the government – which had lived by the sword – died by the sword.

The Supreme Court unanimously reversed the 8th Circuit, holding that a sentencing court may consider the length of a mandatory consecutive sentence when setting the length of an underlying sentence.

In Dean v. United States, the defendant was charged with committing two robberies with a gun. The robberies carried a guidelines sentence of 84 to 105 months. One of the two 924(c) counts carried a mandatory 5 years, and the second carried a mandatory 25 years. Both sentences had to be consecutive to the underlying sentence and each other.

So Levon Dean got to sentencing knowing that he had a minimum 360 months coming. His lawyer argued that it was more than enough, and the judge hardly needed to pile on another 84 months for the underlying offense. While the district court, the judge said he was not allowed to adjust the sentence of the underlying robbery to zero to account for the two consecutive gun sentences. Levon got 400 months.

knifegun170404The 8th Circuit agreed with the government that the underlying offense had to be sentenced as though the 924(c) counts were not there, and then the consecutive sentences had to be stacked on like pancakes. Anything else, the Justice Department argued, would thwart the will of Congress.

How convenient for the government that the will of Congress becomes a crucial consideration in Dean, while it was utterly irrelevant 24 years ago in Deal! Yesterday, however, the Supreme Court found it not so convenient, holding that while adjusting the underlying offense guidelines to zero might negate the will of Congress, that did not matter. The plain text of the statute was clear, and the plain text governs:

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate 924(c) offenses whenever they think a mandatory minimum under 924(c) is already punishment enough. But no such intent finds expression in the language of 924(c). That language simply requires any mandatory minimum under 924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under 924(c) when calculating an appropriate sentence for the predicate offense.

The government argued that Congress’s intent that the underlying offense be sentenced without regard to the 924(c) count could be inferred from the statute’s silence. But in another consecutive-sentencing statute for identity theft, Congress included specific language limiting the district court’s ability to adjust the underlying sentence.

Sentencestack170404The Supremes ruled that because “Congress has shown that it knows how to direct sentencing practices in express terms,” but did not in 924(c), a sentencing court may impose a sentence on the underlying offense of one day, in order to make the overall sentence consistent with what the court considers appropriate under 18 USC 3553 (the sentencing statute). The Court said, “we ordinarily resist reading words or elements into a statute that do not appear on its face.”

Dean will go back to court for resentencing, where he will receive 30 years and a day.

Dean v. United States, Case No. 15-9260 (Apr. 3, 2017)

– Thomas L. Root


Leave a Reply

Your email address will not be published. Required fields are marked *