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October 4, 2010

SCOTUS kicks off new Term considering application of gun mandatory minimums

Though the new Supreme Court term does not have many obvious sentencing blockbusters in the works, the term kicks off today with a pair of sentencing cases.  As detailed in this SCOTUSblog post, the two cases address the same basic issue: "in Abbott v. United States and Gould v. United States, the Court will consider whether two defendants were improperly sentenced to consecutive five-year prison terms under 18 U.S.C. § 924(c) when they were subject to a greater minimum sentence on a different count of conviction."  This ABA Preview authored by Professor Brooks Holland provides more background:

Petitioners Kevin Abbott and Carlos Rashad Gould were convicted of narcotics and firearms offenses, including one count each of possessing a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c).  Section 924(c)(1)(A) mandates a five-year consecutive sentence for this offense, but exempts defendants “to the extent that a greater minimum sentence is otherwise provided by this subsection or any other law.”  Petitioners argued that this exception precluded a consecutive sentence because petitioners were subject to a greater minimum sentence on a different count of conviction.  The district court disagreed in each case and sentenced petitioners to a prison term of five years on the § 924(c) offense, consecutive to their other mandatory minimum sentences.  Petitioners’ consecutive sentences were affirmed on appeal.  The Supreme Court now must determine whether § 924(c)(1)(A)’s “except” clause applies to petitioners.

SCOTUSblog has all the filed briefs in Abbott and Gould linked on this case page.

UPDATE: The transcript of the oral argument in Abbott and Gould is available here.

October 4, 2010 at 07:29 AM | Permalink


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I am wondering why 18 USC 924(c)(1)(D) was not stressed more by either Defendant. That section states that nobody convicted of violating 924(c) shall be placed on probation and that the 924(c) imprisonment sentence must run consecutive. This, IMO, shows that the defendants' argument is clearly the correct analysis.

Here's why:

1) Under the government's analysis, 924(c)(1)(D)(i) is entirely superfluous. The government believes the "except" clause applies only internally to 924(c) (and externally to crimes that have identical elements for DJ purposes). If that's true, then Congress does not need to state that a 924(c) count cannot be sentenced to probation because the statute itself, internally, sets out mandatory minimum imprisonment terms for the crime. If you are going to avoid 924(c)(1)(D) being superfluous, then the mandatory minimums of 924(c) MUST NOT apply in certain other circumstances and, in turn, the "except" clause MUST apply to something external to 924(c) (or to some external crimes that does not have identical elements).

2) At oral argument, the government said adopting the defendants' position would result in an "anomaly" in that, when the "except" clause applies, "no sentence" would be imposed for the 924(c) offense. Not so, and 924(c)(1)(D) clearly shows why. Under the defendants' position, when the except clause applies, a consecutive sentence of imprisonment must be imposed for the 924(c) offense. What the "except" clause does is it acts to erase the mandatory minimum term of consecutive imprisonment.

To me, if one doesn’t want to conclude that subsection (c)(1)(D) is superfluous, then one of the defendants MUST win this case. Am I missing something?

Posted by: DEJ | Oct 5, 2010 11:55:51 AM

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