This week, the Supreme Court agreed to hear Abbott v. U.S. and Gould v. U.S. These criminal cases involve a deep circuit split among the federal courts that we addressed in this post in September, when the 11th Circuit decided U.S. v. Segarra.
The Armed Career Criminal Act (ACCA), drug laws, and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The ACCA and drug minimums are often longer than the minimum called for by § 924(c). § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The plain language of that clause prohibits application of § 924(c) where defendants are subject to greater minimums.
Two questions are at issue in Abbott, one of which is also present in Gould. The first issue, applicable to both cases, is whether the exception applies when a defendant is subject to a higher mandatory minimum for any crime that is the predicate for the § 924(c) conviction. Despite the plain language of “any other provision of law,” only the Second Circuit has interpreted this language in favor of the defendant. Eight Circuit Courts of Appeals, including the Eleventh Circuit, have held that “any other provision of law” does not include predicate crimes.
The Courts of Appeals are more evenly divided on Abbott‘s second issue, which is whether the “except” clause applies where the defendant is convicted for another offense for possession of the same firearm in the same transaction as the § 924(c) conviction. The Second, Sixth, and Eighth Circuits have held that the “except” clause applied to firearm-related conduct. The Third, Fourth, and Fifth Circuits have held the opposite, absurdly explaining that “any other provision of law” just reserves the possibility of a § 924(c) provision codified elsewhere in the future. The Eleventh Circuit has not decided this narrower question.
In Gould, the defendant pleaded guilty to one drug count and one § 924(c) firearm count. The drug count carried a ten-year mandatory minimum and the firearm count added a five-year mandatory minimum. The district court judge applied both. Gould argues that, because the predicate drug count carried a higher minimum sentence, the district court applied the § 924(c) minimum sentence erroneously.
In Abbott, the defendant was convicted of drug crimes, § 924(c) possession of a firearm in furtherance of a drug trafficking crime, and § 924(e) (ACCA) possession of a firearm by a convicted felon. The ACCA count carried a mandatory minimum of 15 years and the § 924(c) count carried a minimum of five years. The district court applied both minimum sentences consecutively for his possession of one firearm at one time.
The plain language of § 924(c) prohibits its application where “any other” greater minimum sentence applies. We hope that the Supreme Court honors that legislative instruction. The briefs and opinions below in Abbott and Gould are available at the following links:
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