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CONGRESS MAKES NO SENSE, BUT WE’LL FOLLOW THE STATUTE ANYWAY

Anyone who believes that Congress crafts the laws it passes with wisdom and expertise needs look no further than 18 USC § 924, which sets out penalties for gun offenses.

The penalties in 18 USC § 924(c) for using or carrying a gun during a drug or violent crime must be consecutive to any other sentence. But if the defendant uses the gun to murder someone during the § 924(c) offense, he or she is punished under 18 USC § 924(j).  While § 924(j)’s maximum penalty – death – is more severe than § 924(c)’s maximum of life without parole, § 924(j) has no mandatory minimum and does not require that the sentence be consecutive to any other sentence.

In other words, it seems from a straight reading of the statute that a defendant is better killing some with his gun during a Hobbs Act robbery than he is just keeping the gun in his, which punishes a § 924(c) violation “where death results,” do not.

Remember the Chewbacca defense?  That. Does. Not. Make. Sense.

Last Friday, the Supreme Court shrugged and said it doesn’t matter whether it makes sense or not. Section 924(j) means what it says, or more accurately, means what it doesn’t say.

In Lora v. United States, the high court held that the sentence imposed by § 924(j) may be either consecutive or concurrent (like the sentence for almost all other criminal offenses, as permitted by 18 USC § 3584(a)).

Efraim Lora was convicted of a violation of § 924(j)(1), which penalizes using a gun during a drug or violent crime to “cause the death of a person” where “the killing is a murder.” Efraim’s underlying offense was drug trafficking. At sentencing, the District Court concluded that it lacked discretion to run Efraim’s drug and § 924(j) sentences concurrently because § 924(c)’s requirement for consecutive sentences obviously governs § 924(j) sentences, too.  

After all, § 924(j) says, “A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm…”  It stands to reason that because subsection (j) refers to subsection (c), then subsection (j) must import subsection (c)’s mandatory consecutive sentences.

The District Court’s conclusion represented an attempt to make subsection (c) and subsection (j) make sense together.  Five circuit courts of appeal have held the same, which only two – the 10th and 11th – had held otherwise.

Last Friday’s Supreme Court opinion changes all of that. Justice Alito, writing for a unanimous court, noted the Government’s complaint that it is “implausible” that “Congress imposed the harsh consecutive-sentence mandate under subsection (c) but not subsection (j), which covers more serious offense conduct.” Yet, his opinion says, “that result is consistent with other design features of the statute.”

The Supremes observed that “Congress plainly chose a different approach to punishment in subsection (j) than in subsection (c). Subsection (c), first enacted in 1968, is full of mandatory penalties… Subsection (j), by contrast, generally eschews mandatory penalties in favor of sentencing flexibility… Even for murder, subsection (j) expressly permits a sentence of ‘any term of years.’ This follows the same pattern as several other provisions enacted alongside subsection (j) in the Federal Death Penalty Act of 1994.”

Justice Alito’s opinion admitted that “Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection (j) than under subsection (c). It could have added a consecutive-sentence mandate to subsection (j). It could have written subsection (c)’s consecutive-sentence mandate more broadly. It could have placed subsection (j) within subsection (c). But Congress did not do any of these things. And we must implement the design Congress chose.”

So what does this mean for people serving consecutive sentences for § 924(j)? Unless you’re still within a year of conviction – so you can use your § 2255 petition to raise the issue – you probably would have to proceed on a 28 USC § 2241 petition for habeas corpus. The limits of what you can do in a § 2241 petition may be decided in the next two weeks when the Supreme Court decides Jones v. Hendrix. But many courts have held that a § 2241 petition cannot be used like this unless the statutory interpretation means you’re innocent of the offense, not just of the sentence. No doubt, there is plenty of litigation to come on this.

Bloomberg, Justices Clarify Sentencing for Gun-Related Drug Crimes (June 16, 2023)

Lora v. United States, Case No 22-49, 2023 US LEXIS 2548 (June 16, 2023)

– Thomas L. Root