Kevin Abbott v United States
The case concerned over the interpretation of the “except” clause prefacing 18 U.S.C. §924(c)(1)(A). Abbott was charged with violating 18 U.S.C. §924(c)(1)(A)(i) by possessing a firearm in furtherance of a drug-trafficking crime. Abbott’s case was tried to a jury in the Eastern District of Pennsylvania, which convicted him on the §924(c) count and three others. The District Court sentenced Abbott to the 15 years mandated by Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e) and to an additional five years for the §924(c) violation, yielding a total prison term of 20 years.
Similarly Gould was charged with violating §924(c)(1)(A)(i) by possessing a firearm in furtherance of a drug-trafficking crime. The United States District Court for the Northern District of Texas imposed a sentence of 11 years and 5 months for the trafficking offense and an additional five years for the §924(c) violation, for a total of 16 years and 5 months. On appeal, Abbott and Gould challenged the five-year consecutive sentence each received under §924(c). Their objections rested on the “except” clause prefacing §924(c)(1)(A). Under that clause, a minimum term of five years shall be imposed as a consecutive sentence “except to the extent that a greater minimum sentence is otherwise provided by [§924(c) itself] or by any other provision of law.” Both claimed exemption from punishment under§924(c) because they were sentenced to greater mandatory minimum prison terms for convictions on other counts charging different offenses. They submitted that the “except” clause ensured that §924(c) offenders would serve at least five years in prison. If conviction on a different count yielded a mandatory sentence exceeding five years, the statutory requirement would be satisfied and the penalty specified for the §924(c) violation would be inoperative. But the Third Circuit and the Fifth Circuit affirmed Abbott’s and Gould’s sentence respectively.
Congress enacted 18 U. S. C. §924(c) as part of the Gun Control Act of 1968, 82 Stat. 1213. The “except” clause, which did not appear in §924(c) as originally composed, was introduced by a statutory amendment in 1998.
As amended, §924(c)(1)(A) reads as follows:
“Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime— “(i) be sentenced to a term of imprisonment of not less than 5 years; “(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and “(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”
The courts below had taken the view that a defendant is not spared from a separate, consecutive sentence for a §924(c) conviction, whenever he faces a higher mandatory minimum for a different count of conviction. Instead the “except” clause applies only when another provision—whether contained within or placed outside §924(c)—commands a longer term for conduct violating §924(c). For example, the mandatory minimum sentence for a §924(c) offense is five years, but if the firearm is brandished, the minimum rises to seven years, and if the firearm is discharged, to ten years. §924(c)(1)(A)(i), (ii), (iii). A defendant who possessed, brandished, and discharged a firearm in violation of §924(c) would thus face a mandatory minimum term of ten years.