09-479 & 09-7073 U.S. v. Abbott

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Sentencing
Drug trafficking; use of weapon

A defendant is subject to the highest mandatory minimum specified for his conduct in 18 U.S.C. 924(c), unless another provision of law directed to conduct proscribed by sec. 924(c) imposes an even greater mandatory minimum.

The Government’s reading-that the “except” clause is triggered only when another provision commands a longer term for conduct violating §924(c)-makes far more sense. It gives effect to 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 §924(c)(1) punishment “shall” be imposed “in addition to” the penalty for the predicate offense, §924(c)(1)(A); second, §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,” ibid. ; 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 clause is a proviso, most naturally read to refer to the conduct §924(c) proscribes. See United States v. Morrow , 266 U. S. 531 . There is strong contextual support for the view that the “except” clause was intended simply to clarify §924(c). At the same time Congress added the clause, it made the rest of §924(c) more complex, dividing its existing sentencing prescriptions into four paragraphs, and adding new penalties for brandishing and discharging a firearm. Congress thought the restructuring might confuse sentencing judges: It added the “except” clause’s initial part, which covers greater minimums provided “by this subsection,” to instruct judges not to stack ten years for discharging a gun on top of seven for brandishing the same weapon. In referencing greater minimums provided by “any other provision of law,” the second portion of the clause simply furnishes the same no-stacking instruction for cases in which §924(c) and a different statute both punish conduct offending §924(c). Congress likely anticipated such cases when framing the “except” clause, for the bill that reformulated §924(c)’s text also amended 18 U. S. C. §3559(c) to command a life sentence for certain repeat felons convicted of “firearms possession (as described in §924(c)).” This interpretation does not render the “except” clause’s second part effectively meaningless. Though §3559(c) is the only existing statute, outside of §924(c) itself, that the Government places within the “except” clause, the “any other provision of law” portion installs a safety valve for additional sentences that Congress may codify outside §924(c) in the future. Neither United States v. Gonzales, 520 U. S. 1 , nor Republic of Iraq v. Beaty , 556 U. S. ___, warrants a different conclusion.

574 F.3d 203, affirmed.

09-479 & 09-7073 U.S. v. Abbott

Local effect:    The opinion is consistent with governing Seventh Circuit precedent, U.S. v. Easter, 553 F.3d 519, 526-527 (7th Cir. 2009).
Ginsburg, J.

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