Stacking occurs when an enhanced sentence for a second or subsequent conviction is imposed consecutive to a first-conviction sentence within the same case. Anti-stacking, under the December 21, 2018 First Step Act, means that the enhanced second-or-subsequent sentence applies only to sequential convictions. Crime, conviction, sentence; new crime, conviction, sentence.
Let’s unpack this.
The statute: Sectionrequires a sentence of not less than 5, 7 , or 10 years upon conviction. Subsection (c)(1)(C) required a sentence of 25 years (or sometimes life) for a “second or subsequent conviction.” With the amendment, subsection (C) applies only "after a prior conviction under this subsection has become final.” And subsection (D), then and now, requires any §924(c) sentence to run consecutively “with any other term of imprisonment imposed on the person.”
Let’s say your client was charged with three convenience store robberies (Hobb’s Act,). And for each robbery, they were also charged with a related count of brandishing a weapon, per § 924(c).
Count 1: Robbery on August 1, 2018.
Count 2: Brandishing a firearm (9 mm) during the robbery charged in Count 1.
Count 3: Robbery on August 4, 2018.
Count 4: Brandishing a firearm (same 9mm) during the robbery charged in Count 3.
Count 5: Robbery on August 6, 2018.
Count 6: Brandishing a weapon (same 9mm) during the robbery charged in Count 5.
Before the Act, the law required that the sentences for Counts 2, 4, and 6 run consecutively to the robberies and to each other (the robberies can be concurrent to each other). And the law dictated that counts 4 and 6 were “second or subsequent convictions”, consecutive to the first conviction, Count 2. That was stacking.
Let’s assume the sentences for the robberies were 5 years each, to run concurrently with each of the other robberies. Pre-Act, the sentences would look like this:
5 + 7 + 25 + 25 = 62 years
5 years (for robbery counts 1,3, and 5, concurrent) consecutive to 7 years (first § 924(c), Count 2) consecutive to 25 years (second § 924(c), Count 4) consecutive to 25 years (subsequent § 924(c), Count 6) = 62 years.
Stacking was absurd. But it, even with no criminal history, and it was mandatory, even if the sentencing court believed it to be “ .” Prosecutorial discretion, unhinged, and endorsed by the Tenth Circuit and U.S. Supreme Court. Prosecutors used stacking as a crushingly heavy hammer in plea negotiations.
Post-Act, subsection (C) applies only after a prior conviction becomes final, that is, in a separate preceding case, not within the same case. But the mandatory consecutive language of subsection (D) is unchanged. So the sentences would look like this:
5 + 7 + 7 + 7 = 33 years
Still a heavy hammer for the prosecution.
The change to § 924(c) is not retroactive. It will “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”