Busic v. United States Rocca v. United States

• Decision Date: 19 May 1980
• Docket Number: 78-6029,Nos. 78-6020,s. 78-6020
• Citation: 100 S.Ct. 1747,446 U.S. 398,64 L.Ed.2d 381
• Parties: Michael M. BUSIC, Petitioner, v. UNITED STATES. Anthony LaROCCA, Jr., Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

446 U.S. 398

100 S.Ct. 1747

64 L.Ed.2d 381

Michael M. BUSIC, Petitioner,

v UNITED STATES.

Anthony LaROCCA, Jr., Petitioner,

v. UNITED STATES.

Nos. 78-6020, 78-6029.

Argued Feb. 27, 1980.

Decided May 19, 1980.

Syllabus^*

Upon their joint trial in Federal District Court, petitioners were convicted of, inter alia, armed assault on federal officers petitioner LaRocca as the actual triggerman and petitioner Busic as an aider and abettor and thus derivatively a principal under 18 U.S.C. § 2—in violation of 18 U.S.C. § 111, which makes it unlawful to assault a federal officer and which provides for enhanced punishment when the assaulter "uses" a deadly weapon. In addition, LaRocca was convicted of using, and Busic of carrying, a firearm in the commission of the armed assault, in violation of 18 U.S.C. § 924(c), which authorizes the imposition of enhanced penalties on a defendant who "uses" (§ 924(c)(1)) or "carries" (§ 924(c)(2)) a firearm while committing a federal felony. Each petitioner's sentence included 5 years on possession of firearms and the assault charges, and 20 years for the § 924(c) violations. The Court of Appeals ultimately held that, while LaRocca's sentence could not be enhanced under both § 111 and § 924(c)(1) for "using" a firearm, he could be sentenced under either at the Government's election, but that, since the § 924(c) charge against Busic alleged not that he "used" a firearm but rather that he "carried" one, his sentence was valid.

Held : Section 924(c) may not be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. The sentence received by such a defendant may be enhanced only under the enhancement provision in the statute defining the felony he committed. Pp. 403-411.

(a) This result is supported not only by Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70, but also by the legislative history of § 924(c) and the canons of statutory construction that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, and that a more specific statute (18 U.S.C. § 111 here) will be given precedence over a more general one (§ 924(c)), even if, as here, the general provision was enacted later. To the extent that this construction may lead to irrational sentencing patterns in which some less severe crimes are punished more than other more severe crimes, it is the Congress, not this Court, that must take corrective action. Pp. 403-410.

(b) This holding not only makes it clear that petitioner LaRocca may not be sentenced under § 924(c)(1) for using his gun to assault federal officers, but also applies to petitioner Busic's case. Nor can Busic's sentence be sustained by arguing that a person who carries a gun in the commission of a § 111 violation may be sentenced under § 924(c)(2) because the enhancement provision of § 111 does not apply to those who carry but do not use their weapons. The fact is that Busic is being punished for using a weapon. Through the combination of § 111 and 18 U.S.C. § 2, he was found guilty as a principal of using a firearm to assault federal agents. Pp. 410-411.

3rd Cir., 587 F.2d 577, reversed and remanded.

Gerald Goldman, Washington, D. C., for Michael M. Busic.

Samuel J. Reich, Pittsburgh, Pa., for LaRocca.

Mark I. Levy, Washington, D. C., for United States.

Mr. Justice BRENNAN delivered the opinion of the Court.

Title 18 U.S.C. § 924(c) authorizes the imposition of enhanced penalties on a defendant who uses or carries a firearm while committing a federal felony. The question for decision in these cases is whether that section may be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. We hold that the sentence received by such a defendant may be enhanced only under the enhancement provision in the statute defining the felony he committed and that § 924(c) does not apply in such a case.

I

Petitioners Anthony LaRocca, Jr., and Michael Busic were tried together on a multicount indictment charging drug, firearms, and assault offenses flowing from a narcotics conspiracy and an attempt to rob an undercover agent. The evidence showed that in May 1976 the two arranged a drug buy with an agent of the Drug Enforcement Administration who was to supply $30,000 in cash. When the agent arrived with the money, LaRocca attempted to rob him at gunpoint. The agent signalled for reinforcements, and as other officers began to close in LaRocca fired several shots at them. No one was hit and the agents succeeded in disarming and arresting LaRocca. Busic was also arrested and the officers seized a gun he was carrying in his belt but had not drawn. Additional weapons were found in the pair's automobile.¹

A jury in the United States District Court for the Western District of Pennsylvania convicted petitioners of narcotics and possession-of-firearms counts,² and of two counts of armed assault on federal officers in violation of 18 U.S.C. § 111—LaRocca as the actual triggerman and Busic as an aider and abettor, and thus derivatively a principal under 18 U.S.C. § 2. In addition, LaRocca was convicted of using a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(1), and Busic was convicted of carrying a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(2).³ Each petitioner was sentenced to a total of 30 years, of which 5 resulted from concurrent sentences on the narcotics charges, 5 were a product of concurrent terms on the firearms and assault charges, and 20 were imposed for the § 924(c) violations.

The defendants appealed, contending, among other things, that they could not be sentenced consecutively for assaulting a federal officer with a dangerous weapon as defined in 18 U.S.C. § 111 ⁴ and for the use of a firearm in connection with that crime as provided in § 924(c).⁵ In an opinion announced before Simpson v.United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), was decided, the Court of Appeals for the Third Circuit concluded that the imposition in LaRocca's case of enhanced sentences under both § 924(c) and § 111 for a single assault with a firearm violated the Double Jeopardy Clause of the Fifth Amendment because the two statutes required proof of identical elements. 587 F.2d 577, 583-584 (1978). Accordingly, LaRocca's case was remanded to the District Court for resentencing under either § 111 or § 924(c), at the Government's election. Since the § 924(c) charge against Busic alleged not that he used a firearm (§ 924(c)(1)), but rather that hecarried one (§ 924(c)(2)), the Court of Appeals held that no like infirmity invalidated his conviction and sentence. In its view, the § 111 and § 924(c) charges against him did not require proof of the same elements and hence did not merge because the former could be established merely by showing that Busic had aided and abetted LaRocca's use of a gun to assault the federal officers, while the latter required proof of the additional fact that Busic had unlawfully carried a gun. 587 F.2d, at 584.

Following this Court's decision in Simpson v. United States, supra, the Court of Appeals granted a petition for rehearing and vacated its double jeopardy holding with regard to LaRocca on grounds there was no reason to reach the constitutional question. 587 F.2d, at 587-589. Thereafter, it proceeded as a matter of statutory construction to arrive at a nearly identical conclusion namely, that LaRocca's sentence could not be enhanced under both § 111 and § 924(c) but that he could be sentenced under either at the Government's election. The Court of Appeals did not alter its holding with regard to Busic. We granted certiorari, 442 U.S. 916, 99 S.Ct. 2835, 61 L.Ed.2d 282 (1979), and now reverse the enhanced sentences that were imposed on both petitioners under § 924(c).

II

We turn first to the case of petitioner LaRocca because it poses most directly the key question of legislative intent. Our starting point, like that of the parties, is Simpson, supra. There we considered the relationship between § 924(c) and the federal bank robbery statute, 18 U.S.C. § 2113, which, like the assault provision at issue here, 18 U.S.C. § 111, predates § 924(c) and provides by its own terms for enhanced punishment where the felony is committed with a dangerous weapon.⁶ Relying upon the legislative history and applicable canons of statutory construction, Simpson held that the Congress cannot be understood to have intended that a defendant who has been convicted of robbing a bank with a firearm may be sentenced under both § 924(c) and § 2113(d). The parties to the instant cases agree that Simpson clearly prohibits the imposition on these petitioners of similarly enhanced sentences under both § 924(c) and § 111. But the Government contends that Simpson resolved only the double enhancement question—that the Court's holding and opinion should not be read to find § 924(c) inapplicable where the prosecution proceeds under that provision rather than the enhancement provision of a predicate felony statute like § 111. Such a reading, the Government asserts, is supported by the facts presented in Simpson,⁷ the language used to describe the actual "holding," ⁸ the most likely inferences that may be drawn as to what Congress would have wanted had it focussed on the precise problem,⁹ and the asserted irrationality of some of the consequences that would flow from a holding that § 924(c) is inapplicable in cases like the present cases.¹⁰

We disagree. In our view, Simpson's language and reasoning support one conclusion alone—that prosecution and enhanced sentencing under § 924(c) is simply not permissible where the predicate felony statute contains its own enhancement provision. This result is supported not only by the general principles...