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SCOTUS Announces § 924(c)(1)(D)(ii)’s Consecutive Sentence Mandate Not Applicable to § 924(j) Sentences

by Richard Resch

In a unanimous decision, the Supreme Court of the United States held that § 924(c)(1)(D)(ii)’s prohibition on concurrent sentences does not extend to sentences imposed under a different subsection of the statute, viz., § 924(j), and thus, when multiple convictions – including a § 924(j) conviction – are involved, sentencing courts are free to run the sentences concurrently or consecutively.

In 2002, a group engaged in drug-dealing murdered a rival dealer. Efrain Lora was accused of serving as a lookout during the shooting. He was convicted of aiding and abetting in violation of 18 U.S.C. § 924(j)(1), which criminalizes the actions of a “person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm,” where the death is the result of murder. Lora was also convicted of conspiracy to distribute drugs in violation of 21 U.S.C. §§ 841 and 846.

During sentencing, Lora argued that the U.S. District Court for the Southern District of New York had discretion to run his § 924(j) concurrently with his conspiracy sentence, but the District Court ruled that it did not have the discretion to run the sentences concurrently. It explained that Second Circuit precedent provides that § 924(c)(1)(D)(ii)’s bar on concurrent sentences is applicable to § 924(j) sentences, not limited to § 924(c) sentences, and thus, his two sentences are required to run consecutively. See United States v. Barrett, 937 F.3d 126 (2d Cir. 2019). The District Court sentenced Lora to 30 years in prison, 25 years for the conspiracy count and 5 years on the § 924(j) count, to run consecutively.

He timely appealed, and the Second Circuit affirmed, which deepened the Circuit split on the issue of whether § 924(c)(1)(D)(ii)’s bar on concurrent sentences is applicable to § 924(j) sentences. The U.S. Supreme Court granted certiorari to resolve the split. 

The Court began its analysis by reviewing the federal statutory framework that criminalizes the use, carrying, and possession of a firearm in committing specific crimes. At issue in this case are subsections
(c) and (j) of § 924.

Subsection (c) makes it a crime to use or carry a firearm “during and in relation to any crime of violence or drug trafficking crime” or to possess a firearm “in furtherance of any such crime.” § 924(c)(1)(A). Section 924(c)(1)(A)(i) imposes a five-year mandatory minimum for a conviction under § 924(c)(1)(A). Subsection (c) progressively mandates longer mandatory-minimum sentences as the seriousness of the offense increases.

Subsection 924(c)(1)(D)(ii) provides that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.”

The Court noted that subsection (j) was added decades after subsection (c) was enacted. Subsection (j) similarly sets forth offense elements and corresponding penalties. For example and relevant to the present case, § 924(j) provides: “A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall – (1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life….” Notably, subsection (j) does not contain a consecutive-sentence mandate like subsection (c) does.

The Court pointed out that subsection (c)’s bar against concurrent sentences applies to a “term of imprisonment imposed on a person under this subsection,” i.e., subsection (c). § 924(c)(1)(D)(ii) (emphasis supplied). The Court explained that by its “plain terms, Congress applied the consecutive-sentence mandate only to terms of imprisonment imposed under that subsection [that is, subsection (c)]. And Congress put subsection (j) in a different subsection of the statute.” (emphasis supplied) In closely examining the construction of subsection (c) and each word therein, the Court reasoned that “by echoing the phrase ‘term of imprisonment’ and referring inwards to ‘this subsection,’ § 924(c)(1)(D)(ii) points to the terms of imprisonment prescribed within subsection (c).”

Turning to subsection (j), the Court explained that a sentence imposed under that subsection is not subject to the consecutive-sentence mandate of § 924(c)(1)(D)(ii). Bemused by the apparent confusion on this issue, the Court declared: “To state the obvious again, subsection (j) is not located within subsection (c). Nor does subsection (j) call for imposing any sentence from subsection (c). Instead, subsection (j) provides its own set of penalties.” See §§ 924(j)(1)-(2). The Court explained that a defendant sentenced under subsection (j) does not receive a “term of imprisonment imposed” under subsection (c), as is required in order for the sentencing regime of subsection (c) to apply. Thus, the Court held that “§ 924(c)(1)(D)(ii)’s consecutive-sentence mandate does not apply” to a subsection (j) sentence.

Accordingly, the Court vacated the judgment of Court of Appeals and remanded the case for further proceedings consistent with its opinion. See: Lora v. United States, 143 S. Ct. 1713 (2023).

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