Issues
Does the prohibition on concurrent sentences in 18 U.S.C. § 924(c), which criminalizes using or possessing a firearm to commit crimes of violence or drug trafficking crimes, apply to defendants convicted under 18 U.S.C. § 924(j), which covers defendants who cause death through use of a firearm?
This case asks the Supreme Court to consider whether 18 U.S.C. § 924(j) is subject to 18 U.S.C. § 924(c)’s prohibition on concurrent sentences. 18 U.S.C. § 924(c) criminalizes using or possessing a firearm to commit a crime of violence or drug trafficking crime. To violate 18 U.S.C. § 924(j), an individual must, in the course of violating 18 U.S.C. § 924(c), use a firearm to cause the death of another person. Petitioner Efrain Lora argues that 18 U.S.C. § 924(c)(1)(d)(ii), which bars courts from sentencing defendants to concurrent terms of imprisonment, applies only to convictions under § 924(c) and not to convictions under § 924(j). Respondent the United States argues that, because § 924(j) can only be violated by also violating § 924(c), a sentence under Section 924(j) qualifies as a conviction under § 924(c) and must therefore also be subject to its sentencing requirements. This case has significant implications for federal sentencing law, including judicial discretion in sentencing.
Questions as Framed for the Court by the Parties
Whether 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).
Facts
In 2002, Efrain Lora was trafficking narcotics in the Bronx. United States v. Lora at 1. In collaboration with four co-conspirators, he decided to kill Andrew Balcarran, a rival drug dealer, over threats Balcarran had made towards Lora and his co-perpetrators regarding their drug territory. Id. On the day of the murder, Lora acted as a scout. Brief for Respondent, United States of America at 4. Lora called and relayed Balcarran’s location to his co-conspirators, who proceeded to shoot and kill Balcarran outside of his home. Lora at 1.
In 2016, following a jury trial, Lora was convicted of “aiding and abetting the use of a firearm during and in relation to a drug trafficking crime causing death to another by murder” under 18 U.S.C. §§ 2 and 924(j)(1) and of “conspiring to distribute cocaine and cocaine base” under 21 U.S.C. § 846. Id. at 1–2; Brief for Respondent at 3. After his trial in the Southern District of New York, Lora was sentenced to 5 years on the 18 U.S.C.§ 924 firearm count and to 25 years on the 21 U.S.C. § 846 conspiracy count. Lora at 2; Brief for Respondent at 3.
At his trial, Lora argued that the drug trafficking sentence and the 18 U.S.C. § 924(j) firearm sentence could be served concurrently. Brief for Petitioner, Efrain Lora at 6. The Probation Office, in contrast, recommended in its Presentence Investigation Report that Lora’s sentence should be a minimum of 10 years, with a maximum of life, to be served consecutively to any other sentences. Brief for Respondent at 5. Although Section 924(c) carries a five-year mandatory minimum, which can increase to ten years depending on how the firearm is used, § 924(j) specifies no mandatory minimum. Id. Lora therefore objected to the Probation Office’s recommendation of the mandatory minimum and consecutive sentence requirements, which he argued were improperly lifted from § 924(c), and are not explicitly required under § 924(j). Id. at 6. However, the District Court disagreed, and relied on Second Circuit precedent, namely United States v. Barrett, in reasoning that 18 U.S.C. § 924(j) should be read to require a mandatory minimum and mandatory consecutive sentences. Id. The court therefore sentenced Lora to serve the two sentences consecutively for a total of 30 years. Lora at 2. Meanwhile, Lora’s co-defendants, who pled guilty, were sentenced to 15, 10, and 5 years. Brief for Petitioner at 6.
On appeal to the Second Circuit, Lora again argued that the two sentences should be served concurrently. Lora at 7. However, the Second Circuit also rejected Lora’s argument that consecutive sentencing was not required under § 924(j). Id. The Second Circuit reasoned, and Lora acknowledged, that his argument was foreclosed by United States v. Barrett, where the Court held that § 924(j) “incorporates the entirety of [subsection 924(c)].” Brief for Petitioner at 7. The Second Circuit thus affirmed the judgment of the District Court and imposed a 30-year consecutive sentence for the two charges, rather than a concurrent sentence of 25 years. Lora at 1.
The United States Supreme Court granted Lora certiorari on December 9, 2022. Brief for Respondent at 1.
Analysis
INTERPRETING SECTION 924’S PLAIN TEXT
Petitioner Efrain Lora argues that, under the plain text of the statute, the bar on concurrent sentences in § 924(c)(1)(D)(ii) applies only to defendants convicted under subsection (c), and does not apply to those, like Lora, convicted under subsection (j). Brief for Petitioner, Efrain Lora at 14. Lora points out that § 924(c)(1)(D)(ii) expressly states that it applies only to sentences “imposed under this subsection.” Id. Lora notes that the Court has previously indicated that the word “subsection” refers to a subdivision marked by a lowercase letter. Id. at 14–15. Lora concludes that, because subsection (c) does not require that his sentences be consecutive, 18 U.S.C. § 3584 gives judges discretion to impose either consecutive or concurrent sentences. Id. at 12.
Lora also argues that subsection (j) lays out a different crime than subsection (c) and does not merely provide a sentencing enhancement for violations of subsection (c). Id. at 22–24. Lora acknowledges that subsection (j) applies only to individuals who cause the death of another “in the course of a violation of subsection (c).” Id. at 13. However, Lora argues that this language is merely shorthand to incorporate the elements of subsection (c) into the separate crime laid out in subsection (j). Id. at 20. Lora contends that, since subsection (j) defines a separate crime from subsection (c) and is silent on whether sentences imposed under it must be consecutive, the default rule of judicial discretion should apply. Id. at 24.
Respondent the United States, on the other hand, argues that subsection (j) describes an aggravated violation of subsection (c). Brief for Respondent, United States of America at 10. Thus, the United States asserts, any violation of subsection (j) is also a violation of subsection (c). Id. at 11. Accordingly, the United States contends that a sentence for violating subsection (j) is “imposed under” subsection (c) because it is imposed for a violation of subsection (c). Id. The United States also notes that not applying § 924(c)(1)(D)(ii) to violations of subsection (j) would create “a special exception,” illogically excusing the worst violations of § 924(c) — namely, those accompanied by homicide or manslaughter — from the requirement of consecutive sentencing. Id. Instead, the United States asserts that a sentence under § 924(j) must reflect both the firearm offense and the killing committed during the firearm offense, and therefore § 924(c)’s bar on concurrent sentencing must apply. Id. at 13.
The United States asserts that Lora’s argument exhibits “[a] blinkered view of” subsection (j) that divorces it from the statute as a whole. Id. at 17. The United States notes that subsection (j) clearly incorporates some aspects of subsection (c), which suggests that it intended to incorporate other aspects as well — including the bar on concurrent sentences. Id. at 30–31. Furthermore, the United States notes that the Supreme Court has previously described the consecutive sentence requirement as applying to “any sentence for violating § 924(c),” to “all § 924(c) offenders,” and whenever “a defendant violates § 924(c).” Id. at 20.
PRINCIPLES OF STATUTORY INTERPRETATION
Lora next argues that two principles of interpretation — the rule that statutes modifying the common law should be narrowly construed and the rule of lenity — support allowing concurrent sentences. Brief for Petitioner at 25. First, Lora notes that judges have traditionally had discretion to decide whether to impose concurrent or consecutive sentences. Id. Lora notes that Congress codified this common law rule in 18 U.S.C. § 3584. Id. Lora contends that § 924(c)(1)(D)(ii) should thus not be interpreted as limiting judicial discretion unless the statute does so clearly. Id. Lora asserts that this concern is especially pressing with regard to sentencing discretion, because judges’ sentencing decisions should consider a broad array of information. Id. Lora argues that, even if § 924(c)(1)(D)(ii)’s bar on concurrent sentencing could be read as requiring consecutive sentences for violations of § 924(j), it does not do so clearly and thus should not be interpreted as imposing such a requirement. Id. at 27.
Lora also asserts that the rule of lenity, which requires that unclear criminal laws be interpreted in favor of the defendant, supports allowing judges to determine whether to impose concurrent or consecutive sentences. Id. at 30. Lora argues that the statute does not clearly require consecutive sentences. Id. at 31. Lora asserts that, at most, the statute is ambiguous. Id. Thus, Lora concludes, the rule of lenity requires interpreting it to allow concurrent sentences. Id.
The United States responds that statutes that modify common law rules, such as the rule of judicial discretion in sentencing, do not need to be interpreted narrowly. Brief for Respondent at 36. Instead, the United States asserts, a statute should be interpreted as modifying the common law whenever that is the most natural reading of the statute’s text. Id. The United States notes that 18 U.S.C. § 3584, which Lora argues codifies the common law, actually shows that Congress abandoned the common law approach by noting that Congress may mandate consecutive sentences. Id. The United States claims that Congress did exactly that in passing § 924(c)(1)(d)(ii). Id. at 36–37. The United States also notes that the Court has never hesitated to restrain a judge’s sentencing discretion when a statute expressly does so for at least one portion of the statute and, here, the Court must decide only whether it also does so for another portion of the statute. Id. at 37.
The United States also claims that the rule of lenity applies only if the statute is truly ambiguous after considering all of the relevant evidence. Id. at 40. The United States asserts that the statute here is not truly ambiguous, because its “text, structure, history, and purpose” all suggest that § 924(c)(1)(d)(ii)’s bar on concurrent sentences applies to convictions under § 924(j). Id. Additionally, the United States notes that the rationales for the rule of lenity do not support applying the rule in this case. Id. First, the United States argues that the need to provide individuals with fair warning that certain activity is criminal does not apply because everyone agrees on what activity § 924(j) forbids. Id. Second, the United States suggests that, because Congress expressed its intent to punish both unlawful firearm possession and deaths resulting from that possession, there is no concern that the courts are usurping Congress’ role of defining what activity is criminal. Id.
CONSTITUTIONAL CONCERNS
Finally, Lora argues that interpreting subsection (j) as a sentencing enhancement for subsection (c) could violate defendants’ Fifth Amendment right to proof beyond a reasonable doubt and Sixth Amendment right to trial by jury. Brief for Petitioner at 28. Lora argues that, if subsection (j) were a sentencing enhancement, it could be determined by a judge alone without input from a jury. Id. However, Lora notes that because a violation of subsection (j) carries a higher minimum sentence than a violation of subsection (c), Alleyne v. United States requires that the additional elements of subsection (j) be found by a jury beyond a reasonable doubt. Id.
Lora asserts that treating a violation of subsection (j) as a separate crime from a violation of subsection (c), by contrast, presents no constitutional concerns under the Fifth Amendment’s Double Jeopardy Clause. Id. at 29. Lora argues that the Double Jeopardy Clause’s prohibition on multiple punishments for the same offense is designed to protect the legislature’s role in defining crimes, and thus is not violated here because Congress itself decided that subsection (j) should provide additional punishment for certain violations of subsection (c). Id.
The United States rejects Lora’s assertion that treating subsection (j) as a sentencing enhancement raises a problem under either the Fifth or Sixth Amendment. Brief for Respondent at 28. The United States notes that lower courts agree that the additional facts necessary to prove a violation of subsection (j) must be proved to a jury beyond a reasonable doubt, eliminating any constitutional concern. Id. The United States instead suggests that treating subsection (c) and subsection (j) as separate offenses creates a Double Jeopardy problem, because, under Blockburger v. United States, offenses are typically considered “distinct” for Double Jeopardy purposes only if each contains an element not contained in the other. Id. at 22–23. The United States notes that, because subsection (j) requires a violation of subsection (c), subsection (c) does not contain any elements not also contained in subsection (j). Id. at 23. Thus, the United States contends, treating it as a separate crime would violate Double Jeopardy principles. Id. at 22.
Discussion
JUDICIAL DISCRETION IN SENTENCING
The American Bar Association (“ABA”), in support of Lora, asserts that judges should have discretion to decide whether sentences run concurrently or consecutively. See Brief of Amici Curiae American Bar Association (“ABA”), in Support of Petitioner at 6. Particularly, the ABA believes that judges should be able to respond to “case-specific factors” when determining sentence length. Id. The ABA also argues that a mandatory imposition of consecutive sentences goes against the ABA Standards on Sentencing and the ABA’s Kennedy Commission Report, both of which are advisory documents which seek to inform sentencing. Id. at 7. The ABA asserts that this imposition of a consecutive sentence amounts to a mandatory minimum, which is disfavored by the guidelines. Id. at 7–9. The ABA explains that mandatory minimums are disfavored because they do not allow courts to consider each case individually, nor do they allow courts to consider the unique factors that may warrant an increase or decrease in sentence length. Id. at 7. The ABA worries that mandating consecutive sentences would give greater discretion to prosecutors, who could manipulate charges to result in longer sentences, and take discretion away from trial judges, who traditionally have had sentencing discretion. Id. Particularly, the ABA wants to avoid reducing the court’s discretion to determine sentences based on the gravity of a particular offense and the individual circumstances of particular offenders. Id. at 10.
The United States argues that requiring consecutive sentences does not unduly limit a judge’s discretion. See Brief for Respondent at 38. The United States asserts that judges faced with a consecutive sentencing mandate under § 924(c)(1)(D)(ii) still retain some degree of discretion. Id. The United States lists several areas where these judges retain discretion, including sentencing for a term of years or for life, or adjusting the length of sentences on other counts to compensate for the mandatory consecutive sentence. Id.
DEFAULTS IN SENTENCING: CONCURRENT VS. CONSECUTIVE SENTENCES
Lora argues that historically, under statutory law, courts default to imposing concurrent sentences, rather than consecutive sentences, where the statute is not clear on the issue. See Brief for Petitioner at 12. Lora therefore argues that where consecutive sentencing is not explicitly required, the judge should at least be allowed the discretion to determine whether a concurrent or consecutive sentence will apply, as was the case under common law. Id. The ABA, in support of Petitioner, also highlights that traditionally, under common law, courts would default to applying sentences concurrently, rather than consecutively. See Brief of ABA at 11. The National Association of Criminal Defense Lawyers (“NACDL”), in support of Petitioner, also asserts that concurrent sentences should be the default due to historical precedent, and that Congress needs to affirmatively disavow this longstanding tradition in order to make a consecutive sentence the default. See Brief of Amici Curiae The National Association of Criminal Defense Lawyers, in Support of Petitioners at 5–6. The NACDL concedes that this default could be overridden, but Congress would need to make this clear, which they argue Congress has not done here and thus Respondent’s reading is historically inaccurate. Id. Given the longstanding history of this concurrent sentencing doctrine, the NACDL urges the court to not overturn precedent without express Congressional guidance. Id.
The United States asserts that the common law does not favor a default concurrent sentencing rule. See Brief for Respondent at 35. Rather, the United States argues that so long as Congress has made their intention clear, a consecutive sentencing mandate can displace the traditional default of concurrent sentences, even if not expressly stated. Id. at 36. The United States concedes that at common law concurrent sentences were the more typical practice, and that Congress has to some extent codified this as the default in 18 U.S.C. § 3584(a), which has an important exception specifically allowing for consecutive sentences when needed. Id. at 36–37. Therefore, the United States argues, this is one such scenario where a consecutive sentence should apply, as Congress has made it clear that this is an exception to the typical default rule of concurrent sentences. Id.
Conclusion
Acknowledgments
Additional Resources
- Dan Schweitzer, Supreme Court Report: Lora v. United States, 22-49, National Association of Attorneys General (Dec. 14, 2022).
- Lydia Wheeler, Justices Agree to Review Sentencing Rules for Drug Traffickers, Bloomberg Law (Dec. 9, 2022).
- SCOTUS Grants Cert in Two More Criminal Cases, Defender Services Office (Dec. 14, 2022).