Monday, June 16, 2008

You Can't Get A Ten With A Gun

United States v. Whitley, No. 06-0131-cr (2d Cir. June 16, 2008) (Newman, Sack, Parker, CJJ)


Whitley used a gun to rob a grocery store; during the robbery, the gun accidentally went off. He was convicted after a jury trial of robbery, possessing the firearm as a previously convicted felon, and discharging that same firearm in connection with a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(iii). Because he was an armed career criminal, the felon-in-possession count subjected him to a fifteen-year mandatory minimum sentence (18 U.S.C. § 924(e)), and the district court also sentenced him to a ten-year consecutive sentence for discharging the gun, as required by § 924(c)(1)(A)(iii). This part of the sentence was the subject of his appeal.

The Court’s Ruling

Section 924(c)(1)(A)(iii), in pertinent part, provides 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 who, inter alia, discharges a firearm in connection with a crime of violence is subject to a mandatory minimum ten-year sentence, which must be consecutive to any other sentence. Whitley argued that, since he received a fifteen-year mandatory minimum on the felon-in-possession charge, the “except” clause meant that he was not subject to the ten-year consecutive § 924(c) sentence.

Going against at least four other circuits, the appellate court agreed that a “literal reading” of the “plain meaning” of the statute supported Whitley’s claim. The court acknowledged that, where an illogical result or one manifestly not intended would be produced, literal adherence to a statutory text might not be warranted. But, except for the out-of-circuit cases on this issue, all of which went the other way, the court indicated that it knew of “no decision rejecting the literal meaning of statutory language to the detriment of a criminal defendant.”

Here, the court found, the plain text of the statute clearly exempted Whitley from the § 924(c) ten-year minimum, because he received a higher, fifteen-year mandatory minimum sentence on the felon-in-possession count.

The court also rejected the government’s arguments that the “design” of the statute, or its purpose, would be frustrated if it applied the statutory text literally. The court noted that its holding was not at all inconsistent with Congress’ purpose in enacting § 924(c). Rather, it concluded that in § 924(c), Congress “provided a series of increased minimum sentences and also ... made a reasoned judgment that where a defendant is exposed to two minimum sentences ... only the higher minimum should apply.” In fact, the court concluded that “such a sentencing pattern seems eminently sound.”

Finally, the court noted that its holding is particularly warranted because the higher mandatory minimum that exempted Whitley from the ten-year § 924(c) minimum was also for a firearms offense. It observed that most of the courts that have rejected this reading of the “except” clause did so where the defendant was subject to a narcotics mandatory minimum, but indicated that it the clause would apply where the other mandatory minimum sentence was for a gun charge.


This decision, although it probably reaches the right result, raises several vexing questions.

1. What About “to the extent”?

The main problem here has to do with the court’s supposedly “literal” reading of the statute. In fact, the court did not read the statute “literally” at all. What the statute actually says is that the § 924(c) minimums apply “except to the extent that a greater minimum” sentence is applicable to the defendant. Here, the circuit ignored the phrase “to the extent that” and replace it with something like “in a case where.”

But the phrase “to the extent that” must mean something. Although it is not very clear, perhaps what Congress was trying to do was prescribe that the minimum sentence ordinarily mandated by § 924(c) be reduced by the “extent” to which another minimum sentence exceeds it. Thus, for example, here, where Whitley was subject to a fifteen-year mandatory minimum on another count, five years - the “extent that” this exceeded his ten-year § 924(c) minimum - should be deducted from the § 924(c) sentence, leaving him with a five-year mandatory (and consecutive) sentence on the § 924(c) count. While this reading is not perfect (in some cases this method would result in a negative number on the § 924(c) count, which would then have to be treated as a zero), and would certainly not be in Whitley’s interest, it seems to be closer to what Congress actually wrote.

2. What About the Rule of Lenity?

A better way to have decided this case, rather than relying on a “literal” reading that is not literal at all, would have been under the rule of lenity. It really is quite difficult to figure out the meaning of this statute. In fact, there are now at least three different interpretations of the statute spread among four or five circuits. Given this, it would have been much better for the circuit to call the statute ambiguous, which it is, and give Whitley the benefit of the doubt under the rule of lenity.

3. What About Drug Cases?

The most frustrating thing about this case is that it refuses to say with any clarity whether this same “literal” reading would apply in the much more common situation where the defendant faces a mandatory minimum sentence for a drug count that is longer than his § 924(c) mandatory minimum.

The decision seems to be pulling in two different directions on this. First, it suggests that limiting the “except” clause to cases where the other mandatory minimum is for a firearms offense might address some of the supposed anomalies that the government pointed out, and also notes that two other circuits have read the statute this way.

But it also requires a “literal” reading of the “except” clause, which waives the § 924(c) sentence where a higher minimum is provided “by any other provision of law.” This "literal" reading would seem to mean that there cannot be a “firearms only” limitation.

The court should have done a better job of explaining itself. Now it is going to have to decide another one these cases.

4. So What Is the Penalty for § 924(c) When the “Except” Clause Applies?

Finally, this case presents one last conundrum. Taken at face value, it holds that, in cases where the “except” clause applies, a conviction under § 924(c) has no penalty. The opinion clearly states that taking the “except” clause literally does not merely excuse the consecutive nature of § 924(c) sentences - it excuses the entire penalty: “If the ‘except’ clause is read literally, those less-than-fifteen year minimum punishments would not be imposed at all.”

It seems odd that there could be a criminal conviction - and a serious one, at that - for which there is no authorized penalty at all. It also bears noting that, under this decision, there is no guideline recommendation for such offenses either, since under the guidelines the sentence for a § 924(c) violation is whatever the statute requires.

The court’s solution to this is to suggest that the sentencing judge can simply increase the sentence on other counts. This seems like an odd solution, since it is hard to see how this would be consistent with § 3553(a).



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