Friday, February 25, 2011

Eleventh Circuit holds 18 U.S.C. § 924(j) allows for concurrent sentences

U.S. v. Julian, No. 09-13673 (February 22, 2011)

The issue before the Eleventh Circuit Court of Appeals was whether murder with a firearm in the course of a crime of violence and drug trafficking, in violation of 18 U.S.C. § 924(j), requires an imposition of consecutive, rather than concurrent, sentences?

Sentences for the use of a firearm in the course of a crime of violence, pursuant to 18 U.S.C. § 924(c), must run consecutive to any other sentences. However, 18 U.S.C. § 924(j), which applies to the use of a firearm in the course of a crime of violence causing death, does not include language requiring consecutive sentencing.

The defendant argued that 924(j) should be read separately from 924(c) because it is a separate offense, while the government argued that 924(c) applies to 924(j) as (j) is a sentencing factor rather than a separate offense. The Eleventh Circuit rejected the government’s argument, holding that concurrent sentences could be issued under 924(j).

Relying largely on the tools of statutory interpretation, the Eleventh Circuit reasoned that the plain language of 924(c) indicates that the consecutive sentence requirement applies only to a “term of imprisonment on a person under this subsection.” Also, the court held that subsection (j) is a separate offense rather than a sentencing factor, based on the pattern of construction of the statutory provisions: both subsection (c) and (j) begin with an offense, which are later followed by sentencing factors. Finally, the Eleventh Circuit reasoned that the legislature could have included mandatory language in subsection (j), but chose not to and, therefore, the legislature intended to omit the consecutive sentence requirement from 924(j).

The case was remanded to the District Court for resentencing. The Eleventh Circuit's decision was a departure from interpretations of the statute in both the Eighth and Tenth Circuits.

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