| Opinion [ O'Connor ] | Syllabus | Dissent [ Stevens ] | Dissent [ Breyer ] |
|---|---|---|---|
| HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version |
No.
UNITED STATES, PETITIONER v.
on writ of certiorari to the united states court of appeals for the tenth circuit
[
Justice
I believe that Justice Stevens is right. Section 924(c) concerns federal, not state, sentences. Hence Congress intended the words "other term of imprisonment" to refer to other federal, not other state, "terms." With respect to undischarged state sentences, therefore, 18 U.S.C. § 924(c) is permissive, not mandatory. That is, it permits the federal sentencing judge to make a §924(c) sentence and an undischarged state sentence concurrent.
Quite often, it will make little difference that, in this state/federal circumstance, the consecutive/concurrent decision is permissive, not mandatory. That is because federal sentencing judges, understanding that §924 requires consecutive sentencing where undischarged federal sentences are at issue, would normally treat undischarged state sentences the same way. They would make the §924(c) sentence consecutive to undischarged state sentences (even though §924(c) would not force that result) in order to avoid treating similarly situated offenders differently. United States Sentencing Commission, Guidelines Manual §5G1.3 (Nov. 1995). Ordinarily, the fact that the State, rather than the Federal Government, imposed an undischarged sentence is irrelevant in terms of any sentencing objective.
In at least one circumstance, however, federal sentencing judges would probably not treat an undischarged state sentence as if it were federal. That is where the undischarged state sentence is a sentence under a state statute that itself simply mimics §924(c). Such a situation cannot arise where the initial undischarged sentence is federal. Indeed, the Constitution would forbid any effort to apply §924(c) twice to a single instance of gun possession. Brown v. Ohio, 432 U.S. 161, 165 (1977). But a State might have its own version of §924(c), and a federal §924(c) offender could be subject to an undischarged term of imprisonment imposed under such a statute. To run a §924(c) sentence consecutively in such an instance (even if constitutionally permissible, cf. Abbate v. United States, 359 U.S. 187 (1959); Heath v. Alabama, 474 U.S. 82 (1985)), would treat the state offender differently, and far more harshly, than any possible federal counterpart.
I am not inventing a purely hypothetical possibility. The State, in the very case before us, has punished the petitioners, in part, pursuant to a mandatory state sentence enhancement statute that has no counterpart in federal law but for §924(c) itself, which the state statute, N. M. Stat. Ann. §31-18-16(A) (Supp. 1994), very much resembles. But cf. Witte v. United States, 515 U. S. ___, ___, ___ (1995) (slip op., at 8-14). I understand that Congress wanted to guarantee that §924(c)'s sentence would amount to an additional sentence. But I do not see why Congress would have wanted to pile Pelion on Ossa in this way, adding the §924(c) sentence to another sentence that does the identical thing. Nor do I believe that Congress would have intended potentially to create this kind of harsh distinction between those subject to undischarged state, and those subject to undischarged federal, sentences--alikely practical result of the majority's holding. See id., supra, at ___ , ___, (slip op., at 15-17).
This reason, along with those that Justice Stevens has discussed, makes me think that Congress did intend §924(c) to refer to federal sentences alone, and lead me to dissent in this close case.