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August 4, 2008

Second Circuit Affirms Imposition of a Ten-Year Statutory Mandatory Minimum in Place at the Time of the Offense Despite Its Expiration Prior to the Sentencing Date

In United States v. Klump, available here, the Second Circuit held that the district court properly applied the ten-year statutory mandatory minimum sentence in place at the time the defendant committed the crime, despite the shorter statutory mandatory minimum in force at the time of sentencing. In February 2003, the defendant was charged with, inter alia, one count of possessing a semiautomatic assault weapon in furtherance of a drug-trafficking crime. At the time of Klump’s offense and at the time he was convicted, 18 U.S.C. § 924(c)(1)(B)(i) mandated a minimum sentence of ten years’ imprisonment. Fifteen months before the defendant was sentenced, however, this provision expired pursuant to a sunset provision. Klump argued that the district court should have imposed the five-year mandatory minimum in effect at the time he was sentenced. The sentencing court rejected Klump’s argument and imposed the ten-year sentence.  The Second Circuit affirmed, holding:

The older version of § 924(c)(1)(B)(i) applies to Klump even though it had expired before he was sentenced. Pursuant to 1 U.S.C. § 109, “[t]he expiration of a . . . statute shall not have the effect to release or extinguish any penalty . . . incurred under such statute, unless the . . . statute shall so expressly provide.” Section 924(c)(1)(B)(i) contains no provision expressly prohibiting its application to defendants, like Klump, who were convicted of possessing a semiautomatic assault weapon before the statute expired. Thus, the district court properly sentenced him to the ten-year mandatory minimum sentence called for by the statute.

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Comments

I guess Congress doesn't like the rule of lenity.

Posted by: y | Aug 4, 2008 11:22:43 PM

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