On November 15, a unanimous U.S. Supreme Court agreed with the government in Abbott and Gould v. United States (No. 09-749). The case concerned the federal the gun statute, 18 U.S.C. sec. 924(c), which tells judges they must sentence people convicted of drug or violent crimes to an extra mandatory minimum of five years for possession, seven years for brandishment, or ten years for discharge of a firearm. Such sentences are not only mandatory minimums, they are consecutive, so that they must be imposed on top of any other sentence, for example, the sentence for the underlying drug offense or crime of violence.
However, the gun statute has included an “except” clause since 1998 that says: “except to the extent that a greater mandatory minimum sentence is otherwise provided by this subsection or any other provision of law . . .” the court shall impose the consecutive gun mandatory minimums.
At issue in these cases was how broadly should courts read the except clause. Does it mean, for example, that a person sentenced to a ten-year mandatory minimum for a drug offense, is not subject to the five-year mandatory minimum for possessing a weapon in connection with that drug offense, because the ten-year sentence is a “greater mandatory minimum sentence . . . otherwise provided by . . . any other provision of law”?
The Supreme Court agreed with the government’s reading – that the ‘except’ clause is triggered only when (1) another §924(c) section or (2) another law commands a longer term for conduct violating §924(c).
In the first instance, people who are convicted of a violation of §924(c) and who brandished and/or discharged the firearm do not receive mandatory consecutive sentences of five years (for possessing the weapon), seven years (for brandishing it) and ten years (for firing it) stacked one on top of the other for a total of 22 years. Instead, the first section of the except clause instructs the court that the mandatory minimum sentence in that case is ten years.
The second section of the except clause, which refers to “any other provision of law” according to the Court, furnishes the same no-stacking instruction for cases where §924(c) and another law both punish conduct violating §924(c). There is only one other statute that does so, 18 U.S.C. §3559, which provides a mandatory minimum sentence of life in prison. The Court said that even though it was unlikely a court would punish a person who already is receiving a life sentence with an additional consecutive sentence under §924(c), there might someday be another law that does so.
FAMM’s amicus brief supported Abbott and Gould and explained reasons why Congress would have added the except clause and intended it to limit the reach of the mandatory, consecutive sentences in §924(c). Drawing on social science, the safety valve story, the rule of lenity and case studies of two FAMM members who would have benefitted from a literal reading of the except clause, amicus authors Stephanos Bibas, Stephen Kinnaird and their students at the University of Pennsylvania Supreme Court Clinic made a strong case for an except clause that would have real impact.
To read the court’s opinion, click here.
To read FAMM’s brief, click here.
To read more about the case, visit SCOTUSblog.