by David Kim

The Supreme Court of the United States held that Congress did not clearly authorize convictions under both 18 U.S.C. § 924(c)(1)(A)(i), the base offense for using, carrying, or possessing a firearm during a federal crime of violence or drug trafficking offense, and § 924(j), which provides distinct penalties when such a violation results in death. Because § 924(c)(1)(A)(i) and § 924(j) define the same offense under Blockburger v. United States, 284 U.S. 299 (1932), and because Congress did not manifest a clear contrary intention, a single act that violates both provisions may yield only one conviction; the Court expressly limited that holding to § 924(c)(1)(A)(i) and expressed no view as to other variants of the § 924(c) offense. In reaching this conclusion, the Court resolved a Circuit split, reversed the Second Circuit’s contrary judgment, and rejected arguments that the consecutive-sentence mandate in § 924(c)(1)(D)(ii) or the provisions’ differing “focuses” textually authorized dual convictions.

Background

Dwayne Barrett participated in a series of robberies between August 2011 and January 2012. During one robbery, Barrett’s accomplice shot and killed Gamar Dafalla. A jury convicted Barrett on seven counts, three of which bear on the present dispute. Count five charged Barrett with Hobbs Act robbery under 18 U.S.C. §1951, which served as the predicate for two additional charges: count six, though the indictment technically cited § 924(c)(1)(A)(iii), was tried and sentenced as the base § 924(c)(1)(A)(i) offense (and all parties agreed that the count six conviction was for a violation of § 924(c)(1)(A)(i)), and count seven charged him with causing death during that violation under § 924(j)(1). The U.S. District Court for the Southern District of New York initially sentenced Barrett to 90 years of imprisonment.

Subsequent Supreme Court decisions altered Barrett’s sentence. Following United States v. Davis, 588 U.S. 445 (2019), the Second Circuit vacated one of Barrett’s unrelated § 924(c) convictions, and the District Court resentenced him to 50 years. Of that term, 20 years were attributable to concurrent sentences on three Hobbs Act robbery counts, and 25 years came from a consecutive term on the § 924(j) conviction, into which the District Court merged the § 924(c) conviction.

After the Supreme Court decided Lora v. United States, 599 U.S. 453 (2023), which held that § 924(j) does not incorporate § 924(c)’s consecutive-sentence mandate, Barrett appealed again. The Second Circuit vacated his sentence and remanded for resentencing, but it also addressed whether the Double Jeopardy Clause required the District Court to maintain the merger of counts six and seven. The Second Circuit acknowledged that the Government regularly concedes, and other Circuits regularly agree, that the two subsections overlap and may not be punished cumulatively. It further recognized that the provisions qualify as the same offense under Blockburger. Nevertheless, the Second Circuit concluded that, as construed in Lora, the provisions constitute separate offenses for which Congress clearly authorized cumulative punishments. Thus, it instructed the District Court to impose separate convictions and sentences.

The Supreme Court granted certiorari because the Second Circuit’s decision deepened a Circuit split. The Second Circuit’s approach aligned with United States v. Julian, 633 F.3d 1250 (11th Cir. 2011), which similarly permitted dual convictions. However, it diverged from decisions in the First, Fourth, and Fifth Circuits holding that cumulative punishments are impermissible when the violations arise from identical conduct. United States v. García-Ortiz, 657 F.3d 25 (1st Cir. 2011); United States v. Ortiz-Orellana, 90 F.4th 689 (4th Cir. 2024); United States v. Gonzales, 841 F.3d 339 (5th Cir. 2016). Because the Government agreed with Barrett that dual convictions were impermissible, the Court appointed an amicus curiae to defend the Second Circuit’s judgment.

Analysis

The Court began by tracing the statutory history. When Congress enacted § 924(c) in 1968, it created a discrete offense for using or carrying a firearm during a predicate federal crime of violence or drug trafficking offense. In 1971, Congress clarified two issues: first, that a § 924(c)(1) conviction must be “in addition to the punishment provided for” the predicate offense, thereby authorizing two convictions; and second, that the resulting sentences must run consecutively rather than concurrently. Congress later expanded the consecutive-sentence mandate to apply between a § 924(c) sentence and “any other term of imprisonment,” not merely the predicate’s sentence. See United States v. Gonzales, 520 U.S. 1 (1997).

Subsection (j) was enacted in 1994, under the heading “Death Penalty for Gun Murders During Federal Crimes of Violence and Drug Trafficking Crimes.” Unlike § 924(c), which imposes mandatory minimum sentences, § 924(j) authorizes significant maximum penalties, including capital punishment when the underlying violation constitutes murder, without mandating minimums. The Court explained that the provision borrows its penalty structure from the pre-existing murder and manslaughter statutes at 18 U.S.C. §§ 1111 and 1112, while utilizing § 924(c)’s broader jurisdictional language rather than the geographical limitations that constrain the general federal homicide statutes.

The Blockburger Framework

The Court framed the inquiry as one of statutory construction, observing that whether punishments are unconstitutionally multiple cannot be resolved without first determining what punishments Congress authorized. Whalen v. United States, 445 U.S. 684 (1980). The Court stated that the Blockburger presumption, which instructs that Congress ordinarily does not intend to punish the same offense under two different statutes, applies to its analysis. Under Blockburger, courts compare statutory provisions and ask whether each requires proof of a fact the other does not. When both provisions can be violated by identical conduct, as with a greater offense and its lesser included variant, they define the same offense and trigger the presumption, according to the Court.

All parties agreed that § 924(c)(1)(A)(i) and § 924(j) satisfy this threshold inquiry: the relationship between them represents “the classic relation of the ‘lesser included offense’ to the greater offense,” wherein identical conduct violates both statutes. Garrett v. United States, 471 U.S. 773 (1985). Every defendant subject to § 924(j) has necessarily also violated § 924(c). The Court explained that the Blockburger presumption is overcome only by a “plainly expressed” contrary legislative intent, requiring examination of statutory text, structure, and legislative history.

Textual Analysis

The Court concluded that the statutory text strongly suggests that Congress did not disavow the Blockburger presumption. Congress demonstrated its understanding of how to authorize dual convictions by including such language twice within § 924(c) itself, the Court observed. Subsection (c)(1)(A) mandates that a conviction must be “in addition to the punishment provided for” the predicate offense, and § 924(c)(5), addressing armor-piercing ammunition, similarly requires conviction “in addition to the punishment provided for” the predicate “or conviction under” § 924. The Court characterized such “in addition to” language as “crystal clear” evidence of legislative intent to overcome Blockburger. Missouri v. Hunter, 459 U.S. 359 (1983). But Congress employed no analogous language regarding the relationship between § 924(c)(1) and § 924(j). “When Congress has the will” to authorize dual convictions for the same offense, the Court noted, “Congress has no difficulty in expressing it.” Bell v. United States, 349 U.S. 81 (1955).

The Court rejected the amicus’ argument that § 924(c)’s consecutive-sentence mandate textually authorizes dual convictions. This contention misapprehends the inquiry. Blockburger addresses the permissibility of multiple convictions, not merely multiple sentences, the Court explained. The underlying assumption is that Congress ordinarily does not intend to punish the same offense under different statutes, where punishment means a criminal conviction rather than simply the imposition of sentence. Ball v. United States, 470 U.S. 856 (1985). Running sentences concurrently does not cure the constitutional problem because an unauthorized second conviction itself constitutes impermissible punishment even when it produces no additional incarceration. Rutledge v. United States, 517 U.S. 292 (1996).

Accordingly, the consecutive-sentence mandate does not answer whether one act may produce two convictions, the Court stated. Before that mandate becomes relevant, a court must first determine whether two convictions may exist at all. Only after resolving that threshold question does the mandate’s instruction regarding sentence arrangement come into play. The Court noted that Congress addressed the dual-conviction question explicitly. A § 924(c)(1) conviction adds to the predicate conviction. The statute nowhere prescribes the same relationship to a § 924(j) conviction.

The Court likewise rejected the argument that the provisions’ different “focuses” authorize cumulative punishment. Amicus contended that § 924(c)(1) calibrates punishment to firearm use, firearm type, and recidivism, whereas § 924(j) focuses on harm inflicted. But the conduct or result differentiating a greater offense from its lesser included variants will often introduce some new focus, and that reality cannot meaningfully overcome the Blockburger presumption if it is to retain force, the Court reasoned.

Structural Analysis

Structural arguments fared no better. Amicus warned that defendants sentenced under § 924(j) might receive more lenient treatment than those convicted of the less serious § 924(c)(1) offense, given that § 924(c)(1) imposes mandatory minimums while § 924(j) speaks in terms of maximums. The Court determined that this concern was resolved by Lora, which explained that § 924(j) “eschews mandatory penalties in favor of sentencing flexibility” and “reflects th[e] seriousness” of the offense “using a different approach than subsection (c)’s mandatory penalties” by authorizing capital punishment for murder and penalties matching those prescribed for other manslaughters. The Court explained that should prosecutors fear that a § 924(j) sentence might dip below what § 924(c)(1)(A)(i) would guarantee, they remain free to pursue the latter provision’s mandatory minimums instead.

The physical separation between the provisions in the Federal Criminal Code and their independently operating penalty schemes likewise failed to overcome the presumption. The Court noted that the Ball Court had concluded that two provisions with overlapping elements but divergent sentencing schemes, then located in different sections of the Code and operating independently, were mutually exclusive under Blockburger. When offenses share elements but possess comprehensive, independently operating penalty structures, that suggests Congress intended to offer prosecutors a menu rather than a buffet, according to the Court.

The Court distinguished Garrett, in which the Supreme Court concluded that Blockburger was overcome without express statutory language disclaiming the presumption. That case examined the relationship between the continuing criminal enterprise statute and its constituent offenses, and the continuing nature of the offense played a decisive role. Garrett itself distinguished the scenario presented here – “the classic relation of the ‘lesser included offense’ to the greater offense,” wherein identical conduct violates two statutes.

Conclusion

Accordingly, the Court reversed the portion of the Second Circuit’s judgment holding that dual convictions are permissible and remanded for further proceedings. See: Barrett v. United States, 2026 U.S. LEXIS 433 (2026).

Editor’s Note: The Court’s judgment is unanimous. Justice Jackson delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and IV-B. Part IV-C, which addresses legislative history, is joined only by Chief Justice Roberts and Justices Sotomayor and Kagan, and thus does not constitute the opinion of the Court and is not controlling. Justice Gorsuch filed an opinion concurring in part, joining all but Part IV-C. In his concurrence, Justice Gorsuch questioned whether Blockburger should operate as a mere “presumption” in the concurrent-prosecution context or instead as a constitutional rule that prohibits multiple convictions for the same offense regardless of congressional intent, a tension in the Court’s precedent he urged the Court to resolve in a future case.  

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