Abbott v. United States

Decision Date15 November 2010
Docket NumberNos. 09–479,09–7073.,s. 09–479
Citation178 L.Ed.2d 348,562 U.S. 8,131 S.Ct. 18
Parties Kevin ABBOTT, Petitioner, v. UNITED STATES. Carlos Rashad Gould, Petitioner, v. United States.
CourtU.S. Supreme Court

David L. Horan, appointed by this Court, for Petitioner in No. 09–7073.

James E. Ryan, for Petitioner in No. 09–479.

Roy W. McLeese, for Respondent.

Elizabeth K. Ainslie, Joseph J. Anclien, Schnader, Harrison, Segal & Lewis LLP, Philadelphia, PA, Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, David T. Goldberg, Donahue & Goldberg, LLP, New York, NY, John P. Elwood, Vinson & Elkins LLP, Washington, DC, James E. Ryan, Daniel R. Ortiz, George A. Rutherglen, Charlottesville, VA, for Petitioner.

Neal Kumar Katyal, Acting Solicitor General, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, David A. O'Neil, Assistant to the Solicitor General, John M. Pellettieri, Washington, D.C., for United States.

Gregory A. Castanias, Jones Day, Washington, DC, David L. Horan, David J. Schenck, Paul F. Theiss, Jones Day, Dallas, TX, for Petitioner.

Justice KAGAN took no part in the consideration or decision of these cases.

Justice GINSBURG delivered the opinion of the Court.

As one of several measures to punish gun possession by persons engaged in crime, Congress made it a discrete offense to use, carry, or possess a deadly weapon in connection with "any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). The minimum prison term for the offense described in § 924(c) is five years, § 924(c)(1)(A)(i), in addition to "any other term of imprisonment imposed on the [offender]," § 924(c)(1)(D)(ii). The two consolidated cases before us call for interpretation of § 924(c) as that provision was reformulated in 1998.

Kevin Abbott and Carlos Rashad Gould, petitioners here, defendants below, were charged with multiple drug and firearm offenses; charges on which they were convicted included violation of § 924(c). Each objected to the imposition of any additional prison time for his § 924(c) conviction. Their objections rested on the "except" clause now prefacing § 924(c)(1)(A). Under that clause, a minimum term of five years shall be imposed as a consecutive sentence "[e]xcept to the extent that a greater minimum sentence is otherwise provided by [ § 924(c) itself] or by any other provision of law."

Abbott and Gould read § 924(c)'s "except" clause to secure them against prison time for their § 924(c) convictions. They claim exemption from punishment under § 924(c) because they were sentenced to greater mandatory minimum prison terms for convictions on other counts charging different offenses. The "except" clause, they urge, ensures that § 924(c) offenders will serve at least five years in prison. If conviction on a different count yields a mandatory sentence exceeding five years, they maintain, the statutory requirement is satisfied and the penalty specified for the § 924(c) violation becomes inoperative.

The courts below, agreeing with the Government's construction of the statute, read § 924(c)(1) as independently requiring a sentence of at least five years, tacked onto any other sentence the defendant receives. The "except" clause refers to "a greater minimum sentence ... otherwise provided." "[O]therwise provided" for what, the courts below asked; their answer, for conduct offending § 924(c), i.e. , possessing a firearm in connection with a crime of violence or drug-trafficking crime.

A defendant is not spared from a separate, consecutive sentence for a § 924(c) conviction, the lower courts determined, whenever he faces a higher mandatory minimum for a different count of conviction. Instead, according to the courts below and the Government here, the "except" clause applies only when another provision—whether contained within or placed outside § 924(c) —commands a longer term for conduct violating § 924(c). For example, the mandatory minimum sentence for a § 924(c) offense is five years, but if the firearm is brandished, the minimum rises to seven years, and if the firearm is discharged, to ten years. § 924(c)(1)(A)(i), (ii), (iii). A defendant who possessed, brandished, and discharged a firearm in violation of § 924(c) would thus face a mandatory minimum term of ten years.

We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the "except" clause as we comprehend it, a § 924(c) offender is not subject to stacked sentences for violating § 924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum.


Abbott and Gould, defendants in unrelated prosecutions, were each charged with violating § 924(c)(1)(A)(i) by possessing a firearm in furtherance of a drug-trafficking crime. Abbott's case was tried to a jury in the Eastern District of Pennsylvania, which convicted him on the § 924(c) count and three others: two predicate trafficking counts, 21 U.S.C. §§ 841, 846, and being a felon in possession of a firearm, 18 U.S.C. § 922(g). Given Abbott's extensive criminal history, his felon-in-possession conviction triggered a 15–year mandatory minimum under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The District Court sentenced Abbott to the 15 years mandated by ACCA, and to an additional five years for the § 924(c) violation, yielding a total prison term of 20 years.1

Gould's indictment listed seven separate drug and firearm charges. In return for Gould's agreement to plead guilty, the Government dropped all but two: one § 924(c) offense and one predicate drug-trafficking crime. The latter, for conspiracy to possess with intent to distribute cocaine base, carried a ten-year mandatory minimum under § 841(b)(1)(A). Firearm involvement was not an element of that offense. The United States District Court for the Northern District of Texas imposed a sentence of 11 years and five months for the trafficking offense and an additional five years for the § 924(c) violation, for a total of 16 years and 5 months.

On appeal, Abbott and Gould challenged the five-year consecutive sentence each received under § 924(c). Abbott urged that ACCA's 15–year mandatory minimum triggered § 924(c)'s "except" clause, because ACCA qualified as "[an]other provision of law" that "provided" a "greater minimum sentence." Gould said the same of the ten years commanded by his predicate trafficking crime.

The United States Court of Appeals for the Third Circuit affirmed Abbott's sentence, concluding that the "except" clause "refers only to other minimum sentences that may be imposed for violations of § 924(c)." 574 F.3d 203, 208 (2009). Gould fared no better before the Fifth Circuit. 329 Fed.Appx. 569, 570 (2009)(per curiam). That court's precedent already confined the exception to conduct offending § 924(c). United States v. London, 568 F.3d 553, 564 (2009). To resolve the division among the Circuits on the proper construction of § 924(c)'s "except" clause,2 we granted certiorari in both cases and consolidated them for argument. 559 U.S. 903, 130 S.Ct. 1283, 1284, 175 L.Ed.2d 1073 (2010).


Congress enacted 18 U.S.C. § 924(c) as part of the Gun Control Act of 1968, 82 Stat. 1213. The "except" clause, which did not appear in § 924(c) as originally composed, was introduced by statutory amendment in 1998. See An Act [t]o throttle criminal use of guns, 112 Stat. 3469. We begin by setting out § 924(c), first as it read before 1998, then as amended that year.

The earlier version read in relevant part:

"Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) ..., uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, ... the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried." § 924(c)(1) (1994 ed.) (footnote omitted.).

If this pre–1998 text governed, all agree, separate counts of conviction would have no preemptive force, and Abbott and Gould would have been correctly sentenced under § 924(c). The question we confront is whether Congress' 1998 reformulation of § 924(c) rendered the sentences imposed on Abbott and Gould excessive.

The 1998 alteration responded primarily to our decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In proscribing "use" of a firearm, Bailey held, § 924(c)(1) did not reach "mere possession" of the weapon. Id., at 144, 116 S.Ct. 501. Congress legislated a different result; in the 1998 revision...

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