|MUSCARELLO v. UNITED STATES (96-1654)|
No. 961654, 106 F.3d 636, and No. 968837, 106 F.3d 1056, affirmed.
[ Breyer ]
[ Ginsburg ]
Ginsburg, J., dissenting
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 8, 1998]
Justice Ginsburg, with whom The Chief Justice, Justice Scalia, and Justice Souter join, dissenting.
Section 924(c)(1) of Title 18, United States Code, is a punishment-enhancing provision; it imposes a mandatory five-year prison term when the defendant during and in relation to any crime of violence or drug trafficking uses or carries a firearm. In Bailey v. United States, 516 U.S. 137 (1995), this Court held that the term uses, in the context of §924(c)(1), means active employment of the firearm. In todays cases we confront a related question: What does the term carries mean in the context of §924(c)(1), the enhanced punishment prescription again at issue.
It is uncontested that §924(c)(1) applies when the defendant bears a firearm, i.e., carries the weapon on or about his person for the purpose of being armed and ready for offensive or defensive action in case of a conflict. Blacks Law Dictionary 214 (6th ed. 1990) (defining the phrase carry arms or weapons); see ante, at 5. The Court holds that, in addition, carries a firearm, in the context of §924(c)(1), means personally transporting, possessing, or keeping a firearm in a vehicle, anyplace in a vehicle.
Without doubt, carries is a word of many meanings, definable to mean or include carting about in a vehicle. But that encompassing definition is not a ubiquitously necessary one. Nor, in my judgment, is it a proper construction of carries as the term appears in §924(c)(1). In line with Bailey and the principle of lenity the Court has long followed, I would confine carries a firearm, for §924(c)(1) purposes, to the undoubted meaning of that expression in the relevant context. I would read the words to indicate not merely keeping arms on ones premises or in ones vehicle, but bearing them in such manner as to be ready for use as a weapon.
I note first what is at stake for petitioners. The question before the Court is not whether possession of a gun [on the drug offenders premises or in his car, during and in relation to commission of the offense,] means a longer sentence for a convicted drug dealer. It most certainly does
. Rather, the question concerns which sentencing statute governs the precise length of the extra term of punishment, §924(c)(1)s blunt mandatory minimum
Accordingly, there would be no gap, see ante, at 12, no relevant conduct ignore[d], see ante, at 8, were the Court to reject the Governments broad reading of §924(c)(1). To be more specific, as cogently explained on another day by todays opinion writer:
The special mandatory minimum sentencing statute says that anyone who uses or carries a gun during and in relation to any
drug trafficking crime must receive a mandatory five-year prison term added on to his drug crime sentence. 18 U.S.C. § 924(c). At the same time, the Sentencing Guidelines, promulgated under the authority of a different statute, 28 U.S.C. § 994 provide for a two-level (i.e., a 30% to 40%) sentence enhancement where a firearm
was possessed by a drug offender, U.S. S. G. §2D1.1(b)(1), unless the possession clearly was not connected with the [drug] offense.
In Muscarellos case, for example, the underlying drug crimes involved the distribution of 3.6 kilograms of marijuana, and therefore carried a base offense level of 12. See United States Sentencing Commission, Guidelines Manual §2D1.1(a)(3) (Nov. 1995). After adjusting for Muscarellos acceptance of responsibility, see id., §3E1.1(a), his final offense level was 10, placing him in the 6to12 month sentencing range. See id., ch. 5, pt. A. The two-level enhancement for possessing a firearm, id., §2D1.1(b)(1), would have increased his final offense level to 12 (a sentencing range of 10 to 16 months). In other words, the less rigid (tailored to the seriousness of the drug crime, McFadden, 13 F.3d, at 466) Guidelines regime would have added four months to Muscarellos prison time, in contrast to the five-year minimum addition the Courts reading of §924(c)(1) mandates.1
In sum, drug traffickers will receive significantly longer sentences if they are caught travelling in vehicles in which they have placed firearms. The question that divides the Court concerns the proper reference for enhancement in the cases at hand, the Guidelines or §924(c)(1).
Unlike the Court, I do not think dictionaries,2 surveys of press reports,3 or the Bible4 tell us, dispositively, what carries means embedded in §924(c)(1). On definitions, carry in legal formulations could mean, inter alia, transport, possess, have in stock, prolong (carry over), be infectious, or wear or bear on ones person.5 At issue here is not carries at large but carries a firearm. The Courts computer search of newspapers is revealing in this light. Carrying guns in a car showed up as the meaning perhaps more than one third of the time. Ante, at 4. One is left to wonder what meaning showed up some two thirds of the time. Surely a most familiar meaning is, as the Constitutions Second Amendment (keep and bear Arms) (emphasis added) and Blacks Law Dictionary, at 214, indicate: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.
On lessons from literature, a scan of Bartletts and other quotation collections shows how highly selective the Courts choices are. See ante, at 34. If [t]he greatest of writers have used carry to mean convey or transport in a vehicle, so have they used the hydra-headed word to mean, inter alia, carry in ones hand, arms, head, heart, or soul, sans vehicle. Consider, among countless examples:
[H]e shall gather the lambs with his arm, and carry them in his bosom. The King James Bible, Isaiah 40:11.
That one small head could carry all he knew.
That carries no colours or crest.
There is a homely adage which runs, Speak softly and carry a big stick; you will go far.
These and the Courts lexicological sources demonstrate vividly that carry is a word commonly used to convey various messages. Such references, given their variety, are not reliable indicators of what Congress meant, in §924(c)(1), by carries a firearm.
Noting the paradoxical statement,
For indicators from Congress itself, it is appropriate to consider word usage in other provisions of Title 18s chapter on Firearms. See Bailey, 516 U.S., at 143, 146 (interpreting §924(c)(1) in light of 18 U.S.C. § 922(g), 922(j), 922(k), 922(o)(1), 924(d)(1), 930(a), 930(b)). The Court, however, does not derive from the statutory complex at issue its thesis that
Section 925(a)(2)(B), for example, provides that no criminal sanction shall attend the transportation of [a] firearm or ammunition carried out to enable a person, who lawfully received such firearm or ammunition from the Secretary of the Army, to engage in military training or in competitions. The full text of §926A, rather than the truncated version the Court presents, see ante, at 9, is also telling:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the drivers compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
In describing when and how a person may travel in a vehicle that contains his firearm without violating the law, §§925(a)(2)(B) and 926A use transport, not carry, to impl[y] personal agency and some degree of possession. See ante, at 9.10
Reading carries in §924(c)(1) to mean on or about [ones] person is fully compatible with these and other Firearms statutes.11 For example, under §925(a)(2)(B), one could carry his gun to a car, transport it to the shooting competition, and use it to shoot targets. Under the conditions of §926A, one could transport her gun in a car, but under no circumstances could the gun be readily accessible while she travels in the car. [C]ourts normally try to read language in different, but related, statutes, so as best to reconcile those statutes, in light of their purposes and of common sense. McFadden, 13 F.3d, at 467 (Breyer, C. J., dissenting). So reading the Firearms statutes, I would not extend the word carries in §924(c)(1) to mean transports out of hands reach in a
Section 924(c)(1), as the foregoing discussion details, is not decisively clear one way or another. The sharp division in the Court on the proper reading of the measure confirms, [a]t the very least,
that the issue is subject to some doubt. Under these circumstances, we adhere to the familiar rule that, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.
Overlooking that there will be an enhanced sentence for the gun-possessing drug dealer in any event, see supra, at 24, the Court asks rhetorically: How persuasive is a punishment that is without effect until a drug dealer who has brought his gun to a sale (indeed has it available for use) actually takes it from the trunk (or unlocks the glove compartment) of his car? Ante, at 8. Correspondingly, the Court defines carries a firearm to cover a person who knowingly possesses and conveys firearms [anyplace] in a vehicle
which the person accompanies. Ante, at 1. Congress, however, hardly lacks competence to select the words possesses or conveys when that is what the Legislature means.14 Notably in view of the Legislatures capacity to speak plainly, and of overriding concern, the Courts inquiry pays scant attention to a core reason for the rule of lenity: [B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.
* * *
The narrower on or about [ones] person construction of carries a firearm is consistent with the Courts construction of uses in Bailey to entail an immediacy element. It respects the Guidelines system by resisting overbroad readings of statutes that deviate from that system. See McFadden, 13 F.3d, at 468 (Breyer, C. J., dissenting). It fits plausibly with other provisions of the Firearms chapter, and it adheres to the principle that, given two readings of a penal provision, both consistent with the statutory text, we do not choose the harsher construction. The Court, in my view, should leave it to Congress to speak
I would reverse the judgments of the First and Fifth
1. The Sentencing Guidelines carry out a major congressional effort to create a fairly sophisticated system that distinguishes among different kinds of criminal behavior and punishes accordingly. United States v. McFadden, 13 F.3d, at 467468 (Breyer, C. J., dissenting). A mandatory minimum statute deviates from the general regime Congress installed. Given the importance (to Congress) of the Guidelines system, courts should take care not to interpret [with unnecessary breadth] deviations from the basic congressionally-directed effort to rationalize sentencing. Id., at 468.
2. I note, however, that the only legal dictionary the Court cites, Blacks Law Dictionary, defines carry arms or weapons restrictively. See ante, at 5; supra, at 12.
3. Many newspapers, the New York Times among them, have published stories using transport, rather than carry, to describe gun placements resembling petitioners. See, e.g., Atlanta Constitution, Feb. 27, 1998, p. 9D, col. 2 (House members last week expanded gun laws by allowing weapons to be carried into restaurants or transported anywhere in cars.); Chicago Tribune, June 12, 1997, sports section, p. 13 (Disabled hunters with permission to hunt from a standing vehicle would be able to transport a shotgun in an all-terrain vehicle as long as the gun is unloaded and the breech is open.); Colorado Springs Gazette Telegraph, Aug. 4, 1996, p. C10 (British gun laws require locked steel cases bolted onto a car for transporting guns from home to shooting range.); Detroit News, Oct. 26, 1997, p. D14 (It is unlawful to carry afield or transport a rifle . . . or shotgun if you have buckshot, slug, ball loads, or cut shells in possession except while traveling directly to deer camp or target range with firearm not readily available to vehicle occupants.); N. Y. Times, July 4, 1993, p. A21, col. 2 ([T]he gun is supposed to be transported unloaded, in a locked box in the trunk.); Santa Rosa Press Democrat, Sept. 28, 1996, p. B1 (Police and volunteers ask that participants . . . transport [their guns] to the fairgrounds in the trunks of their cars.); Worcester Telegram & Gazette, July 16, 1996, p. B3 (Only one gun can be turned in per person. Guns transported in a vehicle should be locked in the trunk.) (emphasis added in all quotations).
4. The translator of the Good Book, it appears, bore responsibility for determining whether the servants of Ahaziah carried his corpse to Jerusalem. Compare ante, at 34, with, e.g., The New English Bible, 2 Kings 9:28 (His servants conveyed his body to Jerusalem.); Saint Joseph Edition of the New American Bible (His servants brought him in a chariot to Jerusalem.); Tanakh: The Holy Scriptures (His servants conveyed him in a chariot to Jerusalem.); see also id., Isaiah 30:6 (They convey their wealth on the backs of asses.); The New Jerusalem Bible ([T]hey bear their riches on donkeys backs.) (emphasis added in all quotations).
5. The dictionary to which this Court referred in Bailey v. United States, 516 U.S. 137, 145 (1995), contains 32 discrete definitions of carry, including [t]o make good or valid, to bear the aspect of, and even [t]o bear (a hawk) on the fist. See Websters New International Dictionary of English Language 412 (2d ed. 1949).
6. Popular films and television productions provide corroborative illustrations. In The Magnificent Seven, for example, OReilly (played by Charles Bronson) says: You think I am brave because I carry a gun; well, your fathers are much braver because they carry responsibility, for you, your brothers, your sisters, and your mothers. See http://us.imdb.com/M/search_quotes?for=carry. And in the television series M*A*S*H, Hawkeye Pierce (played by Alan Alda) presciently proclaims: I will not carry a gun. . . . Ill carry your books, Ill carry a torch, Ill carry a tune, Ill carry on, carry over, carry forward, Cary Grant, cash and carry, carry me back to Old Virginia, Ill even hari-kari if you show me how, but I will not carry a gun! See http://www.geocities.com/Hollywood/8915/mashquotes.html.
7. In my view, the Government would carry its burden by proving a firearm was kept so close to the person as to approximate placement in a pocket or holster, e.g., guns carried at ones side in a briefcase or handbag, or strapped to the saddle of a horse. See ante, at 5.
8. The Court reports that the Courts of Appeals have unanimously concluded that carry is not limited to the carrying of weapons directly on the person. Ante, at 67. In Bailey, however, the Governments argument based on a similar observation did not carry the day. See Brief for United States in Bailey v. United States, O. T. 1995, Nos. 947448 and 947492, p. 16, n. 4. No Court of Appeals had previously adopted an active employment construction of uses . . . a firearm in §924(c)(1), yet this Court did exactly that. See 516 U.S., at 144.
9. The Firearms statutes indicate that Congress, unlike the Court, ante, at 8, recognizes that a gun in the hand is indeed more dangerous than a gun in the trunk. See, e.g., 18 U.S.C. § 926A (permitting the transportation of firearms in a vehicle, but only if neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle); see infra, at 89.
10. The Court asserts that transport is a broader category that includes carry but encompasses other activity. Ante, at 10. Carry, however, is not merely a subset of transport. A person seated at a desk with a gun in hand or pocket is carrying the gun, but is not transporting it. Yes, the words carry and transport often can be employed interchangeably, as can the words carry and use. But in Bailey, this Court settled on constructions that gave carry and use independent meanings. See Bailey, 516 U.S., at 145146. Without doubt, Congress is alert to the discrete meanings of transport and carry in the context of vehicles, as the Legislatures placement of each word in §926A illustrates. The narrower reading of carry preserves discrete meanings for the two words, while in the context of vehicles the Courts interpretation of carry is altogether synonymous with transport. Tellingly, when referring to firearms traveling in vehicles, the Firearms statutes routinely use a form of transport; they never use a form of carry.
11. See infra, at 1112, nn. 13, 14. The Government points to numerous federal statutes that authorize law enforcement officers to carry firearms and notes that, in those authorizing provisions, carry of course means both on the person and in a vehicle. Brief for United States 3132, and n. 18. Quite right. But as viewers of Sesame Street will quickly recognize, one of these things [a statute authorizing conduct] is not like the other [a statute criminalizing conduct]. The authorizing statutes in question are properly accorded a construction compatible with the clear purpose of the legislation to aid federal law enforcers in the performance of their official duties. It is fundamental, however, that a penal statute is not to be construed generously in the Governments favor. See, e.g., United States v. Bass, 404 U.S. 336, 348 (1971).
12. The Court places undue reliance on Representative Poffs statement that §924(c)(1) seeks to persuade the man who is tempted to commit a Federal felony to leave his gun at home. See ante, at 7 (quoting 114 Cong. Rec. 22231 (1968)). As the Government argued in its brief to this Court in Bailey: In making that statement, Representative Poff was not referring to the carries prong of the original Section 924(c). As originally enacted, the carries prong of the statute prohibited only the unlawful carrying of a firearm while committing an offense. The statute would thus not have applied to an individual who, for instance, had a permit for carrying a gun and carried it with him when committing an offense, and it would have had no force in persuading such an individual to leave his gun at home. Instead, Representative Poff was referring to the uses prong of the original Section 924(c). Brief for United States in Bailey v. United States, O. T. 1995, Nos. 947448 and 947492, p. 28. Representative Poffs next sentence confirms that he was speaking of uses, not carries: Any person should understand that if he uses his gun and is caught and convicted, he is going to jail. 114 Cong. Rec., at 22231 (emphasis added).
13. Any doubt on that score is dispelled by examining the provisions in the Firearms chapter, in addition to §924(c)(1), that include a form of the word carry: 18 U.S.C. § 922(a)(5) (carry out a bequest); §§922(s)(6)(B)(ii), (iii) (carry out this subsection); §922(u) (carry away [a firearm]); 18 U.S.C. A. §924(a)(6)(B)(ii) (Supp. 1998) (carry or otherwise possess or discharge or otherwise use [a] handgun); 18 U.S.C. § 924(e)(2)(B) (carrying of a firearm); §925(a)(2) (carried out to enable a person); §926(a) (carry out the provisions of this chapter); §926A (lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm); §929(a)(1) (uses or carries a firearm and is in possession of armor piercing ammunition); §930(d)(3) (lawful carrying of firearms in a Federal facility incident to hunting or other lawful purposes) (emphasis added in all quotations).
14. See, e.g., 18 U.S.C. A. §924(a)(6)(B)(ii) (Supp. 1998) (if the person sold
to a juvenile knowing
that the juvenile intended to carry or otherwise possess
in the commission of a crime of violence); 18 U.S.C. § 926A (may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm); §929(a)(1) (uses or carries a firearm
and is in possession of armor piercing ammunition); §2277 (brings, carries, or possesses any dangerous weapon) (emphasis added in all quotations).