Friday, April 7, 2017

Update: courts may take consecutive 924(c) counts in consideration when sentencing on predicate offense.

Last month we blogged on a pending Supreme Court case that asked (according to Justice Roberts): "whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."

Luckily, future Justice Gorsuch won't have another awkward disagreement with his soon to be fellow justices. In Dean, the Supreme Court agreed with Judge Gorsuch, who wrote in Smith that a district court may consider the harsh penalties associated with §924(c) when determining the sentence for the predicate offense.

A summary of the facts in Dean are helpful for understanding this decision. Mr. Dean was convicted of two §924(c) counts plus other robbery related offenses. The §924(c) counts mandated a 5 year and consecutive 25 year sentence. So the judge started the sentencing consideration at 30 years. But Mr. Dean was clearly a "follower" in the predicate robberies involved here. Mr. Dean also lacked "any significant history of any violence." And the district court showed a clear desire to consider this mandatory 30 year sentence for Mr. Dean, stating that a sentence of 30 years and a day would be "more than sufficient." However, the district court didn't believe it was able to give such a sentence, and instead imposed a below guidelines sentence of 40 months on the predicate offenses, resulting in a 400 month sentence.

Of course the text of §924(c) says "in addition to the punishment" involved in predicate offenses. But the statute doesn't say how much time it must be in addition to. So here, the district court showed a desire to sentence Mr. Dean to 30 year on the §924(c) counts and one day on the predicate offenses, but didn't believe it could do so. The Supremem Court said said the district court could do so, and reversed.

As we mentioned in the earlier post: "The Supreme Court decision looks to largely come down to a question of a textual construction versus the intent of congress." Justice Roberts concurred:

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.





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