Public Defense

The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court's decisions in Williams and Whitley. And indeed it was. However, as this decision recognizes, those cases were abrogated by the Supreme Court in Abbot v. United States, 131 S.Ct. 18 (2010).

At issue is an inscrutable phrase in § 924(c) providing that "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law," a person convicted of violating § 924(c) must receive a specified mandatory minimum sentence and that sentence must be consecutive to any other term of imprisonment. Whitley held that this language meant that the § 924(c) sentence did not apply if the defendant received a higher mandatory minimum sentence for gun possession - in that case a 15-year Armed Career Criminal Act sentence. Williams held that the § 924(c) sentence did not apply if the defendant, as here, received a higher mandatory minimum sentence for drug trafficking.

But Abbott held that the "except" clause in § 924(c) related only to "the conduct § 924(c) itself proscribes, i.e., possessing a firearm in connection with a predicate crime." Under Abbott, the exemption from the § 924(c) sentence only applies where the defendant is subject to an "even greater mandatory minimum" under § 924(c). Since that was not the case for the defendant here, the circuit affirmed.

So what does Abbott do? If anything, it seems to mitigate the "stacking" provisions of § 924(c). A second or subsequent § 924(c) conviction carries at 25-year mandatory minimum, and the statute's "stacking" provisions require that all § 924(c) sentences be consecutive. So, for example, pre-Abbott, a defendant convicted of two counts of § 924(c) on a brandishing theory would face a mandatory minimum of 32 years - 7 on the first count and 25 on the second. Post-Abbott, it appears, that defendant would face a mandatory minimum of only 25. The sentence on the first count would not apply since he faced a greater mandatory minimum on another § 924(c) violation.

Full post as published by Second Circuit Blog on February 19, 2011 (boomark / email).