Justices to apply double jeopardy principles to federal firearm offense

The Supreme Court will hear oral arguments on Oct. 7 in Barrett v. United States. Dwayne Barrett – along with others – committed several armed robberies, culminating in one in which a victim who tried to thwart the robbery was shot to death by one of Barrett’s coconspirators. He was convicted at a jury trial in 2013 under 18 U.S.C. §§ 924(c) and (j) for his role in the shooting, as well as for other offenses. 

Section 924(c) – a widely used federal firearm statute – prohibits possessing, carrying, or using a firearm to advance either a federal crime of violence or a drug-trafficking offense. Because Section 924(c) requires proof of the underlying crime and that the firearm advanced it, the Supreme Court has called the offense a “compound crime.” Section 924 not only creates a compound crime, but it also contains additional aggravating factors that raise the crime’s minimum sentence due to the firearm’s attributes or use.

One of these provisions, Section 924(j), is at the center of Barrett’s case before the Supreme Court. Section 924(j) applies when a defendant who violates Section 924(c) also “causes the death of a person through the use of a firearm.” This is the sole provision in Section 924 that addresses harm inflicted on a victim and adds another layer to Section 924(c)’s compound structure. Just as Section 924(c) requires proof of possession, carrying, or use of a firearm and a federal crime of violence or a drug-trafficking offense, Section 924(j) requires proof of a Section 924(c) offense along with “the death of a person through the use of a firearm.”

The question before the Supreme Court in Barrett’s case is whether Section 924(j) creates a separate crime that carries a separate punishment from Section 924(c).

The test for when punishment may be imposed for multiple offenses

Under the Constitution’s double jeopardy clause, no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Answering whether Sections 924(j) and 924(c) create separate offenses, and can carry separate punishments, begins with a nearly century-old unanimous Supreme Court case, Blockburger v. United States. Blockburger established a test for deciding when multiple punishments may be imposed for a single criminal event, one that has proven workable and durable across an extremely wide range of crimes.

Blockburger’s test grows out of the deeply rooted principle that legislatures – not courts –define crimes and that, as a corollary, a legislature may select when a single criminal act gives rise to separate offenses. To apply Blockburger, a court must compare the elements that the legislature has specified must be proven for each of two crimes and then determine whether the elements of each offense “requires proof of a fact which the other does not.”

To take a simple example, a robbery on federal property that involved a nonfatal shooting would, at a minimum, permit simultaneous prosecutions for federal robbery under 18 U.S.C. §2111, and assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). Each of these two offenses requires proof of a fact that the other does not. Section 2111 requires proof that the defendant took or attempted to take “from the person or presence of another anything of value,” while Section 113(a)(6) does not. And Section 113(a)(6) requires proof of “serious bodily injury,” while Section 2111 does not.

When Blockburger’s test is satisfied, courts presume that the legislature intended to create separate crimes carrying separate punishments. But when one offense requires proof of only a subset of another crime’s elements, courts must presume under Blockburger that Congress did not intend to permit multiple convictions and punishment – unless it is clear that Congress intended otherwise. If Blockburger’s presumption is not overcome, the double jeopardy clause prohibits a conviction and sentence for the lesser offense to stand with the conviction and sentence for the greater offense.

What does this mean in practice? To use the example of Section 113, subsection (a)(5) requires proof of a simple assault, carrying a maximum sentence of six months of imprisonment, while subsection (a)(6) merely adds proof of “serious bodily injury,” which triggers an increased maximum sentence of 10 years of imprisonment. Because Section 113(a)(5) requires proof of only a subset of the elements of Section 113(a)(6) (everything but proof of “serious bodily injury”), Blockburger’s test precludes a defendant from being convicted and sentenced under both provisions, even though they create separate crimes.  

An exception to Blockburger’s presumptions

Blockburger merely establishes default rules for interpreting criminal statutes. As the Supreme Court has explained, the Blockburger test “should not be controlling where … there is a clear indication of contrary legislative intent.”

Section 924(c) indisputably falls within this exception in at least one respect. Following a 1978 Supreme Court decision, Simpson v. United States, that rejected the application of Section 924(c) when a defendant also received a weapon enhancement for bank robbery, Congress amended Section 924(c) to “ma[ke] clear its desire to run § 924(c) enhancements consecutively to all other prison terms, regardless of whether they were imposed under firearms enhancement statutes similar to § 924(c).”

Section 924(c) now says repeatedly that its penalties must be levied consecutive to all other sentences imposed, including that for the underlying crime and even if that crime separately carries its own enhanced penalties for the use of a deadly or dangerous weapon. Barrett will therefore turn not on whether Section 924 can overcome Blockburger’s presumption but whether it is evident that Congress intended to authorize separate convictions and sentences under Sections 924(c) and 924(j) for the same underlying conduct.  

The stage is set for Barrett

Sections 924(c) and (j) have been around for decades, but the issue in Barrett came into focus only after one of the court’s decisions two years ago. In Lora v. United States, the courtaddressed whether Section 924(c)’s mandatory minimums and consecutive-sentence requirement govern Section 924(j) when this is charged alone. The court held that nothing in the text of Section 924(j) imported those sentencing provisions from Section 924(c) into it. In arguing that Section 924(j) was subject to Section 924(c)’s sentencing provision, the government had maintained that the double jeopardy clause precludes imposing a conviction and sentence under Sections 924(c) and 924(j) for the same conduct. But the court “express[ed] no position on the Government’s view of double jeopardy, because even assuming it, arguendo, the Government’s view” did not refute its holding that the consecutive penalties and mandatory minimums of 924(c) do not apply to 924(j).

Barrett will now answer that question left unaddressed in Lora.   

The competing arguments in Barrett

Because the government and Barrett agree that separate sentences under these provisions are not permitted for the same conduct, the Supreme Court appointed Charles McCloud, a former assistant to the U.S. solicitor general and a partner at Williams & Connolly, as an amicus, or “friend of the court,” to defend the judgment of the U.S. Court of Appeals for the 2nd Circuit, which agreed with the trial court that Barrett could receive separate convictions and sentences under Sections 924(c) and 924(j) for the same conduct.

Barrett first contends that “neither § 924(j) nor § 924(c)(1)(A) says anything about punishing under both statutes.” Barrett points out that Congress “knows how to penalize cumulatively,” and would have made this clear if it had intended to do so here. The government largely agrees.

In response, McCloud argues that, regardless of what Section 924(j) says (or does not say) about whether a separate conviction and sentence under Section 924(c) may be imposed, Section 924(c) addresses that point. Specifically, Section 924(c)(1)(D)(ii), a provision added after the court’s decision in Simpson, mandates that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” The phrase “this subsection” refers to Section 924(c), and the Supreme Court has broadly construed the phrase “any other term of imprisonment imposed on the person” to extend beyond Section 924(c)’s predicate offense. McCloud stresses that the Supreme Court has not required both statutes in question to state explicitly that their sentences do not merge to overcome Blockburger’s presumption; it is enough for Section 924(c) to say that.

The resolution of this case should provide an opportunity for the court to build incrementally on the precedent that Blockburger established nearly a hundred years ago.