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November 15, 2010

SCOTUS adopts majority reading of 924(c) mandatory minimum provisions in Abbott

The Supreme Court today handed down its opinion in Abbott v. US, No. 09–479 (S. Ct. Nov. 15, 2010) (available here). The Justices unaniminously (and unsurprisingly) adopted the government's approach to the application of the mandatory minimum gun sentences set forth in 924(c). Here is a key paragraph from the start of Justice Ginsburg's opinion for the Court:

We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.  Under the “except” clause aswe comprehend it, a §924(c) offender is not subject to stacked sentences for violating §924(c).  If he possessed,brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22.  He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.

November 15, 2010 at 10:15 AM | Permalink

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Comments

In today's holding, the Court made an entire subsection of the statute superfluous. 18 USC 924(c)(1)(D)(i) states that nobody convicted of violating 924(c) shall be given probation for the offense. But under the Court's holding, such an instruction is unnecessary because a mandatory imprisonment term will always be required for a 924(c) conviction. In my view, the Defendants had the better argument because it avoided this superfluous anomaly created by the holding today.

Posted by: DEJ | Nov 15, 2010 12:03:16 PM

The Court also is wrong when it concludes that the Defendants' argument "would often impose no penalty at all" for a 924(c) offense. Slip Op. at 11. Instead, when the except clause applies, subsection (c)(1)(D) requires that 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.

IMO, the Court overlooked subsection (c)(1)(D) in coming to its holding. That subsection shows: i) in some cases (i.e. when the except clause applied) Congress intended there to be no mandatory minimum for the 924(c) offense, and ii) when the except clause applies, the sentencing court must still impose a consecutive imprisonment sentence for the 924(c) offense.

Posted by: DEJ | Nov 15, 2010 1:58:09 PM

well what you expect we alrady know the little Nazi retards running the suspeme court are useless traitors alrady.

Posted by: rodsmith | Nov 16, 2010 1:25:54 AM

rodsmith --

Justice Ginsburg will doubtless be surprised to learn that she's a Nazi. Ditto with Justices Breyer and Kagan. I wonder if they were reading Mein Kampf in Hebrew school.

Posted by: Bill Otis | Nov 16, 2010 10:32:36 AM

as long as they keep gutting the constution and allowing the govt to do things that would have the founding fathers diging up their rifles i'll call em like i see em!

Posted by: rodsmith | Nov 16, 2010 12:11:08 PM

rodsmith --

Don't get me wrong. Part of your charm is that you call them as you see them. You just don't always call them right.

Posted by: Bill Otis | Nov 16, 2010 2:57:31 PM

oh i know. Lord know's i'm not perfect. I am after all Human! But sorry this court became nothing but glorified Nazi Traitors in my eyes the min they ruled the govt had the right to lock people up without benefit of any trial or charges.... NOTHING will change that.

Posted by: rodsmith | Nov 16, 2010 11:09:31 PM

Legally we are NOT at war unless i managed to miss congress's vote to declare war somewhere. I've not seen any news of insurection or revolt in the U.S itself.... So any LEGAL cover for their actions is NOT present. Sorry under our Constution that makes them Traitors!

Posted by: rodsmith | Nov 16, 2010 11:11:45 PM

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