Wednesday, February 4, 2015

Lenity Rules

It is rare that courts of appeals rehear cases en banc. But that is what the Tenth Circuit did in United States v. Rentz, and it was a good thing for the defendant. The panel decision affirmed; sitting en banc, the Tenth Circuit reversed (over Judge Kelly's lone dissent).
Philbert Rentz had a gun in Indian territory. He pulled the trigger once and shot not one, but two people. A federal grand jury indicted him for a number of offenses, including not one, but two violations of 18 U.S.C. 924(c). That is the provision that punishes "any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . . ." The punishment for one offense is at least a 5-year consecutive sentence; a second conviction results in a minimum 25-year consecutive sentence.
Rentz thought two offenses was too much; after all, he only pulled the trigger once. Stated differently, he only used the firearm once.  
The case has a long procedural history, which we will ignore. Ultimately, in a majority opinion written by Judge Gorsuch (and worth the read), the en banc Tenth Circuit agreed with Rentz. The unit of prosecution in a 924(c) offense is measured by the act, not the result of that act (in numbers). So, one use of a firearm = one 924(c) offense (same with carry or possess). The Court called this an issue of statutory interpretation, then, with a sentencing diagram, canons of statutory construction, a heavy dose of hypotheticals, and, ultimately, the rule of lenity, concluded that the statute's plain language did not say what the government thought it said. In a refreshing display of honesty, the Court actually admitted that it was not all that sure what the statute actually said. And, with that ambiguity apparent, the Court did the stand-up thing and interpreted the statute in favor of the defendant.
Lenity rules.

A couple notes:
  • the Court repeatedly mentioned the severe penalties for 924(c) convictions (perhaps a factor in the decision);
  • the Court was unimpressed with the government's legislative history argument (based on a statement made in a Committee report);
  • the Court (sort of) called out the government because its position was inconsistent with the position it took in an earlier case, but also turned this inconsistency into more evidence of the statute's ambiguity;
  • it also noted that Congress could always amend 924(c) if its interpretation of the statute was incorrect; and
  • the decision appears to be consistent with decisions from other Circuits.
And we end with some repetition: the decision includes a sentence diagram.
It really does.

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