When does a law mean what it says? Funny question, but one that is at the heart of a pair of cases FAMM is participating in at the U.S. Supreme Court: Abbott v. United States and Gould v. United States.
The gun statute, 18 U.S.C. sec. 924(c), adds a mandatory minimum sentence of at least five years in addition to any other sentence imposed in a case when a person is convicted of using or possessing a firearm in connection with a violent or drug offense.
This means that for years, courts have been adding mandatory minimums of five years or more for gun involvement, on top of mandatory minimums of five, 10 or more years for the underlying offense.
The current version of the gun statute dates from 1998, when it was amended in response to an earlier Supreme Court case to make it clear that the five-year mandatory minimum for gun involvement would be added even if the gun was merely possessed in connection with a drug or violent offense.
Amazingly, unnoticed until now was another 1998 amendment, the “except clause.” You can see it in bold below.
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime be sentenced to a term of imprisonment of not less than 5 years.
The language seems straightforward enough: don’t impose a consecutive five-year mandatory minimum if the defendant is already sentenced to a longer mandatory minimum sentence in the case. But the courts have never interpreted the law that way. And apparently no one noticed, until now. Now the Supreme Court has agreed to look at what the “except clause” means.
The petitioners are asking the Court to overturn their sentences. Mr. Abbott was sentenced to a 15-year mandatory minimum as an armed career criminal (ACCA), to which the court added the five-year mandatory minimum from 924(c). His lawyer argued that the except clause should prevent the court from adding the five year gun sentence because the 15 year ACCA sentence was a greater minimum sentence otherwise provided by any other provision of law. Meanwhile, Mr. Gould received a 10-year mandatory minimum for a drug offense and a five-year consecutive mandatory minimum for possessing a gun in furtherance of the drug offense.
The questions the Court will answer after oral arguments in the cases next fall are:
- Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence.
- If not, whether it includes another offense for possessing the same firearm in the same transaction?
- Does a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) apply to a count when another count already carries a greater mandatory minimum sentence?
Of course, FAMM has an opinion about this and we are participating in the cases with an amicus brief that explains how Congress could plausibly have added the “except clause” to make the mandatory minimums in the gun statute less severe.
We tell the Court about the sharp criticism that met the enactment of harsh drug mandatory minimums in 1986 and how Congress took steps to soften their impact. We explain, for example, how Congress passed the safety valve in 1994 so low-level, first-time drug offenders would not be sentenced to mandatory minimums and how Congress wrote early release into the three-strikes law for elderly long-time prisoners.
FAMM also provides evidence of studies known to Congress in 1998 showing that people essentially age out of lawbreaking and that it is the certainty of punishment, not the length of sentence, that has the greatest deterrent effect. Given those scholarly studies and efforts by Congress to soften the impact of mandatory minimums, it made perfect sense for Congress to decide to exclude the five-year consecutive mandatory minimum sentence for gun possession in cases where the defendant was already receiving a very harsh mandatory minimum sentence.
Best of all, we were able to tell the stories of two FAMM members, Percy Dillon and Mandy Martinson, both of whom received five-year gun sentences above and beyond longer mandatory minimum sentences for underlying offenses. Their stories add the human depth so often lacking in such cases and we were delighted to share them.
You can read our amicus brief here.
You can read all the briefs in the cases here: http://www.scotuswiki.com/index.php?title=Abbott_v._United_States%3B_Gould_v._United_States
FAMM is very grateful to Professor Stephanos Bibas and the students of the University of Pennsylvania Law School Supreme Court Clinic; Stephen B. Kinnaird and his colleagues at the law firm of Paul, Hastings, Janofsky & Walker LLP; and Peter Goldberger and Margaret C. Love and the FAMM Amicus Advisory Committee for an outstanding brief.