U.S. v. Whitley

Decision Date16 June 2008
Docket NumberDocket No. 06-0131-cr.
Citation529 F.3d 150
PartiesUNITED STATES of America, Appellee, v. Latie WHITLEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Kim P. Bonstrom, Bonstrom & Murphy, Shelter Island, N.Y., for Defendant-Appellant.

Anjan Sahni, Asst. U.S. Atty., New York, N.Y. (Michael J. Garcia, U.S. Atty., Justin S. Weddle, Asst. U.S. Atty., New York, N.Y., on the brief), for Appellee.

Before: NEWMAN, SACK, and B.D. PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This criminal appeal presents the unusual situation in which the literal meaning of a sentencing statute has been disregarded to the detriment of a defendant. Latie Whitley appeals from the December 30, 2005, judgment of the United States District Court for the Southern District of New York (Richard Conway Casey, District Judge), following a four-day trial. He was sentenced principally to concurrent terms of 282 months for a Hobbs Act robbery and a career criminal firearms possession violation, plus a consecutive mandatory minimum term of 120 months for discharging a firearm. His appeal challenges the imposition of the consecutive ten-year minimum sentence for discharging a firearm, see 18 U.S.C. § 924(c)(1)(A)(iii), both because the "except" clause of subsection 924(c)(1)(A) exempts him from the minimum sentence, and because he lacked the mens rea that he asserts is required for a valid firearms discharge conviction.

We agree that the consecutive minimum ten-year sentence is inapplicable to Whitley because he was subject to a higher fifteen-year minimum sentence as an armed career criminal. As a result, we need not consider whether the ten-year consecutive sentence provision requires mens rea. We therefore remand for resentencing.

Background

Whitley participated in an armed robbery of a delicatessen in the Bronx in November 2004, during which he emptied the store's cash register, pointed a gun at employees, and inadvertently discharged the firearm, injuring himself in the face. The indictment charged three counts. Count One charged a Hobbs Act robbery, in violation of 18 U.S.C. § 1951. Count Two charged using, carrying, and possessing a firearm that was discharged during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Count Three, the armed career criminal offense, charged possessing a firearm after having been convicted of at least three violent felonies or serious drug offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Count Three was bifurcated for separate trial to avoid any prejudice from evidence of the prior offenses relevant to that count. The jury returned guilty verdicts on all three counts.

As to Count Two, the Court, over Whitley's objection, instructed the jury to make a finding on whether the firearm was discharged and stated the "discharge need not be intentional." The jury specifically found that the firearm was discharged. As to Count Three, the jury found that Whitley had at least three prior convictions for robbery or narcotics offenses.

The pre-sentence report ("PSR") calculated an adjusted offense level of 34, based on a grouping of Counts One and Two, which, in Criminal History Category VI, yielded a sentencing range of 262 to 327 months. The PSR recommended a consecutive 120-month sentence on Count Two. Judge Casey sentenced Whitley to concurrent terms of 262 months on Counts One and Three, plus 120 months consecutively on Count II.

Discussion

The validity of Whitley's ten-year consecutive term depends on the proper construction of the language contained in subsection (c) of 18 U.S.C. § 924, particularly the introductory "except" clause of subdivision (1)(A) of subsection 924(c).1 That subsection specifies three levels of minimum sentences for firearms activity in connection with a crime of violence, depending on whether the firearm was possessed, brandished, or discharged. The subsection provides:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added). Where applicable, the five-, seven-, or ten-year sentences (for possession, brandishing, or discharge, respectively) must run consecutively to any other term of imprisonment, including the term imposed for the underlying crime of violence. See id. § 924(c)(1)(D)(ii).

Subsection (e) of 18 U.S.C. § 924, the armed career criminal provision, requires a minimum term of fifteen years for any defendant who, like Whitley, has been convicted of violating 18 U.S.C. § 922(g)(1) (prohibiting felons from possessing firearms in or affecting commerce), and has three previous convictions for a violent felony or a serious drug offense. See 18 U.S.C. § 924(e).

Thus, if the "except" clause of subsection 924(c)(1)(A) means what it literally says, the ten-year minimum sentence required by subdivision (iii) of that subsection for discharge of a firearm, which must run consecutively by virtue of subsection 924(c)(1)(D)(ii), does not apply to Whitley because, in the words of that clause, "a greater minimum sentence is otherwise provided by ... any other provision of law," namely, subsection 924(e), which subjects him to a fifteen-year minimum sentence.

The Government urges us to reject the literal meaning of the "except" clause because it is "unsupported by the text, design, or the purpose of the statute," Br. for Appellee at 25, "would produce illogical and distorted outcomes that Congress clearly did not intend," id., and has been rejected by other circuits, id. at 30. We consider these arguments in turn.

(a) Text. The Government's "text" argument curiously departs from the wording of the "except" clause. Its brief reads, "The prefatory exception clause in Section 924(c)(1)(A) states that unless some other statutory provision requires a higher minimum consecutive sentence for a firearm offense, one of the sentences specified in Sections 924(c)(1)(A)(i) through (iii)—for use, brandishing, or discharge of a firearm-should be imposed." Id. at 25 (emphases added). However, the emphasized words, "consecutive" and "firearm," do not appear in the "except" clause. Proceeding from its rewritten version of the clause, the Government then illustrates what it contends is the limited meaning of the clause. Possession of an ordinary handgun in furtherance of a crime of violence would require only a five-year consecutive sentence under subsection 924(c)(1)(A)(i); possession of an assault rifle would require a higher ten-year consecutive sentence under subsection 924(c)(1)(B)(i); and possession of a machine gun would require the still higher thirty-year consecutive sentence under subsection 924(c)(1)(B)(ii). See id. at 26. But, in the Government's view, the "except" clause does not exempt Whitley from the consecutive ten-year sentence prescribed by subsection 924(c)(1)(A)(iii) for discharging a firearm because his conviction on Count Three, although requiring a higher fifteen-year minimum sentence, does not require a higher consecutive sentence. The flaw in the Government's argument, of course, is that the word "consecutive" does not appear in the text of the "except" clause. The clause at the start of subsection 924(c) exempts Whitley from the minimum ten-year sentence for discharging a firearm, contained in subsection 924(c), because another provision of law, 18 U.S.C. § 924(e), provides for a higher fifteen-year minimum sentence for his conviction on Count Three.

(b) Design. The Government's "design" argument, advanced at oral argument, is drawn from United States v. Alaniz, 235 F.3d 386 (8th Cir.2000). Alaniz declined to read the "except" clause literally out of concern that, in the absence of the clause, "the self-standing provisions in [subdivisions] (c)(1)(B) and (c)(1)(C) [of section 924] are grammatically and conceptually incomplete." Id. at 389. The Eighth Circuit noted that in the previous version of section 924(c), the enhanced penalties for types of weapons and for prior convictions were set forth in what the Court called "an undivided subsection" (set forth in the margin2), id. at 388, meaning that there were no numbered or lettered subdivisions within section 924(c). The Court thought that the "except" clause was needed "to link the remaining prefatory language in (c)(1)(A) to each sentence length set forth in subdivisions (c)(1)(B) and (c)(1)(C)." Id. at 389. We disagree.

Passing the objection that even a grammatical imperfection would be a dubious basis for adding a ten-year consecutive sentence contrary to the plain wording of a statute, we fail to see any grammatical problem at all, and neither the Eighth Circuit or the Government has identified any problem that would result in the absence of the "except" clause. Furthermore, the structural argument encounters the objection that the need to link subdivision (c)(1)(A) with subdivisions (c)(1)(B) and (c)(1)(C) does not explain the broad phrase "or by any other provision of law"; if linking the various provisions of subsection (c)(1) together was the sole purpose of the "except" clause, the clause would have ended with...

To continue reading

Request your trial
129 cases
  • Graves v. Commonwealth
    • United States
    • Virginia Supreme Court
    • 12 de outubro de 2017
    ...v. Rozier, 598 F.3d 768, 772 (11th Cir. 2010) ; United States v. Shabazz, 564 F.3d 280, 288–89 (3d Cir. 2009) ; United States v. Whitley, 529 F.3d 150, 158 (2d Cir. 2008), abrogated on other grounds by Abbott v. United States, 562 U.S. 8, 13, 24–28, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010) ; Un......
  • Hengle v. Asner
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 9 de janeiro de 2020
    ...statutory construction inquiry ends." United States v. Mitchell , 691 F. Supp. 2d 665, 668 (E.D. Va. 2010) (citing United States v. Whitley , 529 F.3d 150, 156 (2d Cir. 2008) ); see also Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("Our inquiry must ......
  • U.S.A v. Whitten
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 30 de junho de 2010
    ...attorney in summation pointed out that Jacobus could therefore be out of prison in twelve years.E Wilson argues that United States v. Whitley, 529 F.3d 150 (2d Cir.2008), requires vacatur of his life sentence for Count Six (use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(......
  • U.S. v. Williams
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 5 de março de 2009
    ...924(c)(1)(A)(i) even though a greater minimum sentence was provided for the predicate drug trafficking crime. In United States v. Whitley, 529 F.3d 150 (2d Cir.2008), reh'g denied, 540 F.3d 87 (2d Cir.2008) , we held that the mandatory minimum sentence under Section 924(c)(1)(A) was ina......
  • Request a trial to view additional results
2 books & journal articles
  • Squaring the circle: reconciling clear statutory text with contradictory statutory purpose in United States v. Whitley.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 32 No. 3, June 2009
    • 22 de junho de 2009
    ...543 U.S. 220 (2005). (3.) Kimbrough v. United States, 128 S. Ct. 558 (2007). (4.) Gall v. United States, 128 S. Ct. 586 (2007). (5.) 529 F.3d 150 (2d Cir. (6.) Id. at 151. (7.) Hobbs Act, 18 U.S.C. [section] 1951 (2006). (8.) 18 U.S.C. [section] 924(c)(1)(A) (2006). (9.) 18 U.S.C. [section]......
  • Commentary: Court finds argument frivolous.
    • United States
    • Wisconsin Law Journal No. 2009, November 2009
    • 26 de janeiro de 2009
    ...greater than the five-year minimum on the gun charge. This argument was recently adopted by the Second Circuit in U.S. v. Whitely, 529 F.3d 150, 158 (2d Cir. Five other circuits have rejected the argument, and it was an issue of first impression in the Seventh Circuit. Despite the Second Ci......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT