Second Circuit Issues Notable Decision Limiting the Stacking of Mandatory Minimum Sentences
It’s hard enough explaining to someone that her below-minimum wage job selling crack on a street corner yields a mandatory minimum sentence of ten years under federal law. But try justifying the consecutive five-year sentence she faces because of her knowledge that one of her colleagues possessed a gun to protect the drugs or drug proceeds . . . Small wonder that the vast majority of drug cases end in guilty pleas. Mandatory minimum sentences give prosecutors extraordinary power to coerce guilty pleas in these cases.
Throwing a significant spanner in the plea-bargaining works of drug cases, the Second Circuit has ruled in United States v. Williams, 2009 WL 563644 (2d Cir. March 5, 2009), that a mandatory minimum sentence for gun possession or gun use may not be stacked on top of any another greater mandatory minimum penalty for the same set of operative facts.
Holding
The Court held that its conclusion was dictated by its decision in United States v. Whitley, 529 F.3d 150 (2d Cir.2008), which interpreted the “except” clause of the statute that prescribes consecutive mandatory minimum penalties for gun possession or gun use in connection with a drug or violent crime. That statute imposes consecutive mandatory minimum sentences “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.”
In Whitley, the Court held that this clause meant that the mandatory minimum sentence for gun possession under § 924(c)(1)(A) was inapplicable where the defendant was subject to a longer mandatory minimum sentence for a career criminal gun possession violation. In Williams, the government tried to confine the Whitley holding to cases where a defendant was subject only to multiple gun-related mandatory minimums. The Court disagreed. “[T]here is no indication in the statutory language that Congress intended to be more lenient to defendants with multiple convictions for firearms-related conduct than to defendants convicted of drug trafficking crimes or other violent offenses, or that it intended to draw any distinction among offenses subject to minimum sentences.”
But those of you who care about the minutiae of statutory construction can read the decision itself (with kudos to amicii Lewis Liman and Michael Byars, who played a key role influencing this decision – the Court cites their brief and expressly thanks them in a footnote.) What is really notable here is the result: the mandatory minimum sentence applicable for gun convictions is “inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense.”
Caveats
And the Court doesn’t rest there. Pre-empting end-runs around its holding and a lot more appellate litigation, the Court makes the following important points: the government may not avoid the Williams holding by charging the gun crimes in a separate indictment (“[s]uch an interpretation would elevate the form of the indictment or information over the substance of the offenses”). And defendants may not earn the benefit of this holding on the basis of a sentence for “a prior unrelated crime in a previous case.” The key question is whether the mandatory minimums arise out of “the same criminal transaction.”
Comment
This is a huge decision, with important ramifications for a large percentage of cases in this Circuit (after all, drug cases represent about 40% of cases in this Circuit, and many of these cases involve guns). Stay tuned for litigation on whether “greater” means “greater than or equal to” and to what extent this rule applies retroactively.
Peter Goldberger adds: Williams’ reasoning and holding suggests that the Supreme Court’s decision in Deal v. United States, 508 U.S. 129 (1993) is now significantly ameliorated. Deal held that the word “conviction” in the § 924(c) statute meant “verdict,” so that in a case where the jury returns more than one guilty verdict on several § 924(c) counts, the first verdict is a “prior conviction” and therefore subsequent guilty verdicts (in the same trial) result in escalating, stacking mandatory minimums. Notably, Deal predated the 1998 amendment that added the “except” clause to the § 924(c) statute construed in Whitley and Williams. Under the Second Circuit’s construction of this “except” clause, those defendants who face multiple § 924(c) trial convictions only face the longest mandatory penalty applicable to “the same criminal transaction or set of operative facts as the firearm offense.”
Lawyers: Alan Seidler (Defendant); Lewis Liman and Michael Byars, Cleary Gottlieb Steen & Hamilton LLP (Amicus Curiae); AUSAs Anjan Sahni, William Harrington, Jonathan Kolodner and Daniel Braun.
Throwing a significant spanner in the plea-bargaining works of drug cases, the Second Circuit has ruled in United States v. Williams, 2009 WL 563644 (2d Cir. March 5, 2009), that a mandatory minimum sentence for gun possession or gun use may not be stacked on top of any another greater mandatory minimum penalty for the same set of operative facts.
Holding
The Court held that its conclusion was dictated by its decision in United States v. Whitley, 529 F.3d 150 (2d Cir.2008), which interpreted the “except” clause of the statute that prescribes consecutive mandatory minimum penalties for gun possession or gun use in connection with a drug or violent crime. That statute imposes consecutive mandatory minimum sentences “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.”
In Whitley, the Court held that this clause meant that the mandatory minimum sentence for gun possession under § 924(c)(1)(A) was inapplicable where the defendant was subject to a longer mandatory minimum sentence for a career criminal gun possession violation. In Williams, the government tried to confine the Whitley holding to cases where a defendant was subject only to multiple gun-related mandatory minimums. The Court disagreed. “[T]here is no indication in the statutory language that Congress intended to be more lenient to defendants with multiple convictions for firearms-related conduct than to defendants convicted of drug trafficking crimes or other violent offenses, or that it intended to draw any distinction among offenses subject to minimum sentences.”
But those of you who care about the minutiae of statutory construction can read the decision itself (with kudos to amicii Lewis Liman and Michael Byars, who played a key role influencing this decision – the Court cites their brief and expressly thanks them in a footnote.) What is really notable here is the result: the mandatory minimum sentence applicable for gun convictions is “inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense.”
Caveats
And the Court doesn’t rest there. Pre-empting end-runs around its holding and a lot more appellate litigation, the Court makes the following important points: the government may not avoid the Williams holding by charging the gun crimes in a separate indictment (“[s]uch an interpretation would elevate the form of the indictment or information over the substance of the offenses”). And defendants may not earn the benefit of this holding on the basis of a sentence for “a prior unrelated crime in a previous case.” The key question is whether the mandatory minimums arise out of “the same criminal transaction.”
Comment
This is a huge decision, with important ramifications for a large percentage of cases in this Circuit (after all, drug cases represent about 40% of cases in this Circuit, and many of these cases involve guns). Stay tuned for litigation on whether “greater” means “greater than or equal to” and to what extent this rule applies retroactively.
Peter Goldberger adds: Williams’ reasoning and holding suggests that the Supreme Court’s decision in Deal v. United States, 508 U.S. 129 (1993) is now significantly ameliorated. Deal held that the word “conviction” in the § 924(c) statute meant “verdict,” so that in a case where the jury returns more than one guilty verdict on several § 924(c) counts, the first verdict is a “prior conviction” and therefore subsequent guilty verdicts (in the same trial) result in escalating, stacking mandatory minimums. Notably, Deal predated the 1998 amendment that added the “except” clause to the § 924(c) statute construed in Whitley and Williams. Under the Second Circuit’s construction of this “except” clause, those defendants who face multiple § 924(c) trial convictions only face the longest mandatory penalty applicable to “the same criminal transaction or set of operative facts as the firearm offense.”
Lawyers: Alan Seidler (Defendant); Lewis Liman and Michael Byars, Cleary Gottlieb Steen & Hamilton LLP (Amicus Curiae); AUSAs Anjan Sahni, William Harrington, Jonathan Kolodner and Daniel Braun.
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