Cross And Crime (Ch 54 59) Raw 1
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Cross And Crime (Ch 54 59) Raw 1
Mandatory minimums are found in two federal firearms statutes. One, the Armed Career Criminal Act, deals exclusively with recidivists.1 The other, 924(c), attaches one of several mandatory minimum terms of imprisonment whenever a firearm is used or possessed during and in relation to a federal crime of violence or drug trafficking.2 Section 924(c) has been the subject of repeated Supreme Court litigation3 and regular congressional amendment since its inception in 1968.4
Section 924(c), in its current form, imposes one of several different minimum sentences when a firearm is used or possessed in furtherance of another federal crime of violence or of drug trafficking. The mandatory minimums, imposed in addition to the sentence imposed for the underlying crime of violence or drug trafficking, vary depending upon the circumstances:
The mandatory minimum sentences were added to 924 as a floor amendment to the Gun Control Act of 1968.6 The amendment, as introduced, called for a 10-year minimum of imprisonment to be imposed when a firearm was used in the commission of various state and federal crimes of violence.7 A substitute amendment reduced the minimums from 10 years to one year for a first offense, and from 25 years to five years of subsequent offenses.8 It limited its application to federal felonies, but also barred a sentencing court from imposing the sanction as a concurrent sentence, from suspending the sentence, or from imposing a probationary sentence.9 The impact was somewhat mitigated by a 1971 amendment which reduced the minimum for second and subsequent offenses from five years to two years.10 Moreover, until the Sentencing Reform Act of 1984 eliminated parole, a federal offender was eligible for parole after serving the lesser of one-third of his sentence or 10 years.11
The Sentencing Reform Act also rewrote 924(c) limiting its application to firearms-related federal crimes of violence, but changing its mandatory minimums to a flat five-year term of imprisonment for first offenders and a flat 10-year term for a second or subsequent conviction.12
Section 924(c) is triggered when a firearm is used or possessed in furtherance of a predicate offense. The predicate offenses are crimes of violence and certain drug trafficking crimes. The drug trafficking predicates include any felony violation of the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act.24
The crime of violence predicates are statutorily defined as any federal felony that either (A) "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or (B) "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."25
The Supreme Court has addressed several other aspects of 924(c), but it has yet to decide what constitutes a crime of violence for purposes of the section. The Court has, however, construed comparable language in the federal criminal code's general definition of the term "crime of violence" in 18 U.S.C. 16,26 and the roughly corresponding language in the Armed Career Criminal Act's definition of the term "violent felony" in 18 U.S.C. 924(e)(2)(B).27
Application of the element clause of the definition is fairly straightforward. A crime, one of whose elements is use or threatened use of force, qualifies as a crime of violence.28 Conversely, "when a statute defines an offense using a single, indivisible set of elements that allows for both violent and nonviolent means of commission, the offense is not a categorical crime of violence."29
It might appear at first glance that the same could be said of 924(c). The Johnson Court, however, made it clear that its decision did not apply to the ACCA's elements clause.33 More to the point, the Court went out of its way to distinguish the ACCA's residual clause from other instances where "grave risk" or "substantial risk" standards, such as in 924(c), are used.34 The defect in the ACCA's residual clause, in the eyes of the Court, was its required nexus to the enumerated crimes (burglary, arson, etc.),35 an infirmity from which 924(c) does not suffer.
Section 924(c) has two alternative firearm-nexus elements: possession in furtherance and carrying or use.36 The possession in furtherance element of the offense requires that the defendant "(1) committed a drug trafficking crime [or other predicate offense]; (2) knowingly possessed a firearm; and (3) possessed the firearm in furtherance of the drug trafficking crime [or other predicate offense]."37 The "possession" component may take the form of either actual or constructive possession. "Constructive possession exists when a person does not have possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others."38
The "in furtherance" component compels the government to show some nexus between possession of a firearm and a predicate offense, that is, to show that the firearm furthered, advanced, moved forward, promoted, or in some way facilitated the predicate offense.39 This requires more than proof of the presence of a firearm in the same location as the predicate offense.40 Most circuits have identified specific factors that commonly allow a court to distinguish guilty possession from innocent "possession at the scene," particularly in a drug case, that is, "(1) type of drug activity [or violent crime] that is being conducted, (2) accessibility of the firearm, (3) the type of weapon, (4) whether the possession is illegal, (5) whether the gun is loaded, (6) the proximity to the drugs or drug profits, and (7) the time and circumstances under which the gun is found."41
The "use" outlawed in the use or carriage branch of 924(c) requires that a firearm be actively employed "during and in relation to" a predicate offense, that is, either a crime of violence or a drug trafficking offense.44 A defendant "uses" a firearm during or in relation to a drug trafficking offense when he uses it to acquire drugs in a drug deal,45 or when he uses it as collateral in a drug deal,46 but not when he accepts a firearm in exchange for drugs in a drug deal.47 The "carry[ing]" that the section outlaws encompasses instances when a firearm is carried on the defendant's person as well as when it is simply readily accessible in vehicle during and in relation to a predicate offense.48
As a general rule, anyone who commands, counsels, aids, or abets the commission of a federal crime by another is punishable as though he had committed the crime himself.64 "In order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."65
In similar manner, conspirators are liable for any foreseeable crimes committed by any of their co-conspirators in furtherance of the conspiracy.69 The rule applies when a defendant's co-conspirator has committed a violation of 924(c).70
In the case of career offenders, 4B1.1(c) of the Guidelines supplies the operable provisions.85 A career offender for these purposes is a defendant who has at least two prior state or federal felony convictions for a crime of violence or a drug trafficking offense.86 The Guideline sentence for a career offender convicted of violating 924(c) varies according to whether he is convicted of 924(c) alone and whether the court awards an acceptance of responsibility reduction (the adjustment under chapter 3 are otherwise inapplicable).
Section 924(c) has a separate provision which outlaws predicate crime-related use, carriage, or possession of armor piercing ammunition.91 The provision, added in 2005, greatly resembles a pre-existing provision in 18 U.S.C. 929.92 There are two significant differences. Section 924(c)(5) carries a 15-year mandatory minimum with special provisions if a death results from the commission of the offense. Section 929 carries a five-year mandatory minimum with no mention of death-resulting offenses. Yet 929 specifically excludes the possibility of probation or concurrent sentencing, while 924(c)(5) makes no mention of either. Neither provision appears to have been prosecuted with any regularity.
The Court in Solem identified three factors to be considered in the Eighth Amendment assessment of punishment in a noncapital case: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on the criminals in the same jurisdiction [for other crimes]; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."103
Then in Harmelin v. Michigan, a splintered Court rejected the Eighth Amendment challenge of a first time offender who had been sentenced to life imprisonment without parole following conviction on serious drug charges.104 Two distinct theories converged to form the judgment of the Court. Two members of the Court, Justice Scalia and Chief Justice Rehnquist, rejected Harmelin's argument that his sentence was disproportionate to his crime because they saw no proportionality requirement