This Report summarizes cases granted review on November 21 and December 1 and 9, 2022 (Part I).
Case Granted Review: Lora v. United States, 22-49
Lora v. United States, 22-49. At issue is “[w]hether 18 U.S.C. §924(c)(1)(D)(ii), which provides that ‘no term of imprisonment imposed . . . under this subsection shall run concurrently with any other term of imprisonment,’ is triggered when a defendant is convicted and sentenced under 18 U.S.C. §924(j).” As relevant here, Section 924(c) prohibits using or carrying a firearm during or in relation to any crime of violence or drug trafficking crime, as well as possessing a firearm in furtherance of such a crime. That offense carries a five-year mandatory minimum term of imprisonment. See 18 U.S.C. §924(c)(1)(A)(i). Meanwhile, other provisions of subsection (c) set forth factual elements that correspond to higher mandatory minimum terms. Section 924(c) also contains a limited prohibition on concurrent sentencing. It provides that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” Id. §924(c)(1)(D)(ii) (emphasis added). Meanwhile, Section 924(j) prohibits “caus[ing] the death of a person through the use of a firearm” while violating Section 924(c). If the killing constitutes a murder under federal law, Section 924(j) authorizes imposing the death penalty or any term of imprisonment.
Petitioner and three co-conspirators trafficked cocaine and cocaine base in the Bronx. On August 11, 2002, the group murdered Andrew Balcarran, a rival drug dealer, over a dispute about drug territory. A jury convicted petitioner of, among other things, aiding and abetting the use of a firearm, during and in relation to a drug trafficking crime, that causes death to another, in violation of Section 924(j). The district court stated that it had to impose “mandatory consecutive” sentences and so imposed a five-year term of imprisonment for petitioner’s conviction under Section 924(j) to run consecutively with a 25-year sentence on the remaining counts. Petitioner appealed, arguing that Section 924(j) does not require a court to impose a consecutive sentence under Section 924(c)(1)(D)(ii). The Second Circuit affirmed, relying on circuit precedent. 2022 WL 453368. That precedent reasoned that Section 924(j) “incorporates the entirety of [Section 924(c)],” including the bar on concurrent sentences in Section 924(c)(1)(D)(ii).
Petitioner argues that the circuits are divided 5-2 on the issue, with the Second Circuit in the majority. On the merits, he maintains that “familiar tools of statutory interpretation confirm that a conviction under Section 924(j) does not count as a conviction under Section 924(c).” The Court had previously held that the word “subsection” generally refers to a subdivision denoted by a lower-case letter. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60–61 (2004). And “[w]hen Congress amended Section 924 in 1994 to add what is now subsection (j), Congress chose to create a ‘new subsection’ ‘at the end’ of the Section, rather than to locate the provision within (i.e., under) Section 924(c).” Petitioner also insists that “the fact that Sections 924(j) and 924(c) are discrete offenses under this Court’s precedent” means that “the treatment of Section 924(j) as an offense ‘under’ Section 924(c) can lead to constitutional issues and therefore should be avoided.” He notes that in Alleyne v. United States, 570 U.S. 99 (2013), the Court held that any fact that increases the mandatory minimum sentence for a crime is an “element” of the crime, not a sentencing factor, and must be submitted to the jury. “Alleyne,” he writes, “confirms that Section 924(j) defines a discrete offense (that must be submitted to a jury)”―and “[b]ecause Section 924(j) establishes a separate offense from those found in Section 924(c), [petitioner’s] conviction under Section 924(j) can only be punished under Section 924(j), not under Section 924(c).”
The United State responds that Section 924(j) merely “sets forth an aggravated version of the offense established under Section 924(c).” “Thus,” reasons the United States, “in order to obtain a conviction under Section 924(j)(1), the government must prove that the defendant’s conduct satisfied the elements listed in Section 924(c) and that a person was murdered in the course of the Section 924(c) violation. And because Sections 924(c) and (j) work together to identify the necessary elements, a sentence based on those elements arises ‘under’ both provisions[.]” Pointing to what constitutes a separate offense for double jeopardy purposes, the United States adds that “Section 924(c) does not require proof of any element distinct from Section 924(j), and there is no countervailing indication that Congress intended to create two distinct, separately punishable offenses.” And the United States maintains that “[a] contrary reading of Section 924 would create an anomaly, under which the lesser-included offense set forth in Section 924(c) would require a consecutive sentence, but additional proof of homicide would eliminate that requirement.”
Editor’s note: Some of the language in the background sections of the summaries below was taken from the petitions for writ of certiorari and briefs in opposition.