So what if a sentencing judge wants to comply with the text of the statute ("shall, in addition to the punishment provided for such crime of violence or drug trafficking crime") but also wants to try to mitigate the harm of such a mandatory consecutive sentence by taking them into account when deciding the sentence for the underlying crime of violence or drug trafficking offense? That is the question at issue in Dean v. United States, a case that was argued earlier this week at the Supreme Court.
Mr. Dean was convicted at trial of some robbery related offenses and, relevant to this issue, two additional § 924(c) counts. At sentencing, Mr. Dean requested a variance on the non mandatory minimum robbery counts. The district court imposed a 40 month sentence on the robbery related offenses and a consecutive 360 month sentence on the § 924(c) for a controlling sentence of 400 months. The district court stated that it did not believe it had authority to vary from the robbery counts, but if it did, the court would have imposed a 1 day sentence for a total term of 360 months and 1 day.
There is good 10th Circuit authority on this question written by (wait for it) Judge (and potentially Justice) Gorsuch. as Judge Gorsuch clearly stated the issue in United States v. Smith:
Must a sentencing court studiously ignore one of the most conspicuous facts about a defendant when deciding how long he should spend in prison? After a court sentences a man to many decades in prison for using a gun during a crime of violence, must the court pretend the gun sentence doesn't exist when weighing an appropriate prison term for the underlying crime of violence?
The Supreme Court decision looks to largely come down to a question of a textual construction versus the intent of congress. Congress' intent is clear - that all § 924(c) counts should be punished harshly and be run consecutive to the underlying crime of violence or drug trafficking offense. But the text of the statute only requires the § 924(c) to be consecutive and does not limit the court in varying downward on the underlying COV or drug trafficking offense.