OPINION ANALYSIS
Court strikes a blow for sentencing discretion under provision in federal firearm statute
on Jun 20, 2023 at 6:11 pm
People given consecutive sentences under the federal law that imposes penalties for the use of a firearm in relation to a crime of violence or drug trafficking may now be entitled to a new sentencing hearing, thanks to the Supreme Court’s unanimous ruling Friday in Lora v. United States. The justices ruled that federal criminal sentencing laws do not require Efrain Lora, who was convicted for his role in a drug-trafficking-related murder, to receive multiple consecutive, rather than concurrent, sentences.
Most of the courts of appeals that had reached the issue previously held that a consecutive-sentencing requirement in Section 924(c) also applied to convictions obtained under Section 924(j), despite language in Section 924(c) limiting its coverage to “term[s] of imprisonment imposed on a person under this subsection.” Justice Ketanji Brown Jackson’s concise opinion for the court opted for a simple and literal construction of the statute’s language. By its “plain terms,” she wrote, “Congress applied the consecutive-sentence mandate only to terms of imprisonment imposed under that subsection. And Congress put subsection (j) in a different subsection of the statute.”
Responding to the government’s argument for a more holistic interpretation of the statute, Jackson wrote, “Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection (j) than under subsection (c). It could have added a consecutive-sentence mandate to subsection (j). It could have placed subsection (j) within subsection (c). But Congress didn’t do any of these things. And we must implement the design Congress chose.”
The events giving rise to the case occurred in 2002, when Lora ordered the assassination of a rival New York drug trafficker. Lora also allegedly acted as a scout during the killing. A jury convicted him of aiding and abetting the killing in violation of Section 924(j)(1), which authorizes the punishment for anyone who, in the course of violating the elements laid out in Section 924(c), causes the death of a person through the use of a firearm, and where the killing constitutes a murder. Lora was also convicted of conspiracy to distribute drugs.
Lora asked the trial court to exercise its usual discretion to run the sentences concurrently, but the trial judge declined to do so on the ground that, under the precedent of 0the U.S. Court of Appeals for the 2nd Circuit, Section 924(cshould be )’s consecutive-sentence mandate applies to convictions under Section 924(j). The court gave Lora 25 years on the conspiracy count and 5 years on the 924(j) count, with the sentences run consecutively, and the 2nd Circuit affirmed.
Jackson’s opinion began by outlining the structure of Section 924(c). In addition to setting out the essential elements of a conviction for using or carrying a firearm during and in relation to any “crime of violence” or drug-trafficking offense, for which the punishment is 5 years, it also sets out more severe punishments when additional elements are present, such as if the firearm is “brandished” (7 years minimum), if the firearm is “discharged” (10 years minimum), or if the firearm is a “machinegun” (30 years). Then comes the consecutive-sentence mandate.
Jackson pointed out that Congress did not add Section 924(j), which incorporates the essential elements of the basic Section 924(c) offense by reference rather than reciting them verbatim in subsection (j), until much later. The government argued that, by incorporating subsection (c) by reference, the consecutive-sentence requirement applies to subsection (j) as well. But the court on Friday disagreed, saying that incorporating the essential elements of (c) was very different from incorporating the entirety of (c), which would have included the additional punishments for additional elements, as well as the consecutive-sentence mandate.
Referring again to the government’s argument that subsections (c) and (j) should be construed as integral parts of a single whole, Jackson pointed out that such a construction would lead to potentially impossible results. “[I]n some cases, the maximum sentence would be lower than the minimum sentence,” she wrote. “Take voluntary manslaughter using a machinegun in the course of a subsection (c)(1) violation, for example. Subsection (c), because of the machinegun, would command that ‘the person shall be sentenced to a term of imprisonment of not less than 30 years.’ Subsection (j), because of the voluntary manslaughter, would command that … the person shall be imprisoned not more than 15 years.”
Anticipating this hypothetical, the government had argued that Congress provided for a workaround to a similar problem in Section 924(c)(5). But Jackson distinguished (c)(5) from (j) on both structural and textual grounds. In any event, she said, Congress had the (c)(5) workaround available to it when it added (j) to the statute, and it declined to make it available in the context of convictions under (j).
Nor was the court persuaded by the government’s argument that subsections (c) and (j) should be treated as virtually the same subsection for double jeopardy reasons. The argument was that because a defendant presumably may not be punished for both a (c) offense and a (j) offense based on the same conduct, subsections (c) and (j) must be viewed as the same provision.
“We express no position on the Government’s view of double jeopardy, because even assuming it, arguendo, the Government’s view does not refute our holding on the question presented,” Jackson said. Even if it is true that a defendant may not be punished under both (c) and (j) for the same conduct, “that aligns with our conclusion here: If a defendant receives a sentence under subsection (j), he does not receive a sentence ‘imposed under subsection (c)’ that would trigger the consecutive-sentence mandate.”
The court also rejected the government’s argument that Congress’s intent would be foiled if the consecutive-sentence mandate doesn’t apply to convictions under subsection (j). Solicitor General Elizabeth Prelogar had argued that Congress wanted sentences under (j) to be more severe than those under (c), as demonstrated by the fact that (j) covers more serious offense conduct. But Jackson said this reasoning missed the overall sense of subsection (j), which was to increase sentencing flexibility for district judges. “Unlike subsection (c), subsection (j) contains no mandatory minimums,” she pointed out. After listing several specific examples of how subsection (j) favored sentencing flexibility over mandatory terms, she stated, “Given those choices to favor sentencing flexibility over mandatory penalties, it is not ‘implausible,’ as the Government asserts, that subsection (j) permits flexibility to choose between concurrent and consecutive sentences.”
Following Friday’s decision, there may be new questions about whether people sentenced to consecutive terms for subsection (j) convictions are eligible for new sentencing hearings. Need the person show that the district judge considered himself or herself bound by the consecutive-sentence mandate of subsection (c), as was explicit in Lora’s case? Or will it be enough to show that the defendant made a timely request for concurrent sentences, that the district court was within a circuit whose precedent required the application of the consecutive-sentence mandate to subsection (j) convictions, and that the district judge said nothing about the request while handing down consecutive sentences? In other words, it remains to be seen what evidence will be necessary to make out a prima facie case of Lora error.
