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Proper Unit of Prosecution under § 924(c) Is the Underlying Predicate Offense

By Candace Hom, Melinda Ghilardi, Nancy Rimmer, Sarah Gannett, Renee Pietropaolo and Tieffa Harper

United States v. Diaz, __ F.3d__, 2010 WL 143684 (3d Cir. Jan. 15, 2010). Nelson Diaz was convicted by a jury of two counts of possession of a firearm in furtherance of drug trafficking,in violation of 18 U.S.C. § 924(c) and a single count of possession with intent to distribute heroin. The District Court sentenced Diaz to a term of 480 months imprisonment - the sum of consecutive sentences of 120 months for each firearm count and 240 months for possession with intent to distribute heroin. Nelson appealed, arguing that his convictions and consecutive sentences for the two firearm charges based on a single predicate offense violated the Double Jeopardy Clause.The Third Circuit agreed. Consistent with nine other Courts of Appeals, the Circuit held that the proper "unit of prosecution" under the statute is the underlying predicate offense ? in this case the drug distribution count ? rather than the possession of a firearm...continue to full post

Full post as published by Third Circuit Blog on January 22, 2010 (boomark / email).