Court considers double jeopardy with regard to federal firearm offense

In Barrett v. United States, the Supreme Court is considering whether the double jeopardy clause prohibits a defendant from receiving a separate firearm conviction and sentence under 18 U.S.C. §§ 924(c) and 924(j) for the same criminal conduct. Section 924(c) prohibits the possession, carrying, or use of a firearm to advance either a federal crime of violence or a drug-trafficking offense. Section 924(j) applies, in turn, when a defendant who violates Section 924(c) also “causes the death of a person through the use of a firearm.”

The parties in the case do not dispute that generally, when one crime is a lesser-included offense of another (that is, one crime’s offense elements are a subset of another), the double jeopardy clause bars a conviction and sentence imposed for both crimes simultaneously. But, under longstanding Supreme Court precedent, that rule does not control when there is a clear indication that Congress intended for the defendant to be convicted at the same time for the same conduct. The parties also do not dispute that Congress provided a sufficiently clear indication that a defendant could be convicted and sentenced for both a Section 924(c) offense and its underlying crime of violence or drug-trafficking offense. Addressing that common ground between Barrett’s attorney and the government, a key threshold question that Justice Sonia Sotomayor raised was exactly what language in Section 924(c) the parties thought sufficed to provide the clear indication that Congress intended for separate convictions and sentences to apply to Section 924(c) and its underlying crime.

One candidate, which Justice Brett Kavanaugh raised early in the argument and that Charles McCloud, whom the court appointed to defend the lower court’s ruling, highlighted in his brief, is Section 924(c)(1)(D)(ii). That provision says that “[n]otwithstanding any other provision of law … no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.” As Kavanaugh observed, the language of Section 924(c)(1)(D)(ii) is broad, stating that Section 924(c)’s sentence will run consecutively notwithstanding “any other provision of law,” a phrase that seemingly would encompass Section 924(j).

But Justice Ketanji Brown Jackson asked, following an argument from Matthew Larsen, Barrett’s attorney, why that provision does not presuppose the law has already, separately, established that there is a separate offense, and thus Section 924(c)(1)(D)(ii) merely instructs that Section 924(c)’s sentence must run consecutively to any such sentence? On the view of Barrett and the federal government (which had opposed Supreme Court review but, once it was granted, sided with Barrett), the language of Section 924(c)(1)(D)(ii) contributes little to answering the question whether Congress provided sufficiently clear evidence of its intent for Section 924(c) and its underlying offense to be imposed cumulatively, and hence, Section 924(c)(1)(D)(ii) cannot dictate that a Section 924(c) conviction and sentence must be cumulative to a Section 924(j) conviction and sentence.

But if Section 924(c)(1)(D)(ii) does not suffice, then what does? Aimee Brown, the assistant to the U.S. solicitor general who argued on behalf of the federal government, pointed to longstanding language in Section 924(c) that requires that a Section 924(c) defendant “shall, in addition to the punishment provided for such crime of violence or drug trafficking crime” receive the Section 924(c) sentence. This “in addition to” language refers only to the underlying crime of violence or drug-trafficking offense and, according to Brown, unlike Section 924(c)(1)(D)(ii), does not plausibly reach a Section 924(j) offense.

Because Section 924(j) itself does not have that “in addition to” language, Justice Elena Kagan asked Brown, “Do you think that there are cumulative punishments authorized for both (j) and the predicate offense?” Brown answered, “We don’t, no, because there’s no language in 924(j) that authorizes those cumulative punishments for the predicate offense of (c) or (c)’s own predicate.” Although no one elaborated on this point at oral argument, because Section 924(c) carries a maximum sentence of life imprisonment, the government’s choice to charge a Section 924(j) in a noncapital case will take away a separate conviction for the predicate offense, remove a consecutive-sentence requirement for the firearm sentence, eliminate the mandatory minimums in Section 924(c), and add the burden of proving death resulted from the use of the firearm.

In light of considerations like those, Justice Samuel Alito asked Larsen, “Do you think that a clear congressional desire to provide multiple punishments for a greater- and lesser-included offense can be inferred from the penalty scheme?” Citing a case from the Court of Appeals for the 7th Circuit, Larsen answered that it would not be enough merely to show that the lesser offense that would no longer stand would have carried a higher potential penalty.

McCloud argued that to provide a clear indication that convictions and sentences for a lesser and greater offense can both stand, sometimes Congress says that punishment under one statute is in addition to punishment under another statute. But other times Congress makes its intent clear through statutory structure and purpose. Stressing that there is no magic words requirement, McCloud argued that even if the court does not view Section 924(c)(1)(D)(ii) as “dispositive,” the provision “is certainly a relevant piece of data about Congress’s intent.” He added that when Congress enacted Section 924(j), Congress “understood that it already had the consecutive sentence mandate on the books.”

Meanwhile, in a line of questions that effectively challenged the parties’ view of Supreme Court precedent on double jeopardy, Justice Neil Gorsuch asked what the justification was for requiring a clear indication from Congress that a lesser-included offense should carry a conviction and sentence in addition to the greater offense. One answer, Gorsuch offered, would be that requiring a clear indication from Congress creating a presumption against cumulative punishment follows from the rule of lenity and the separation of powers that requires Congress to define crimes and punishment. Gorsuch suggested that another answer would be that the double jeopardy clause says you cannot be punished twice for the same offense, a theory that would require elaborating on a constitutional test for what is the same offense. Because these issues were not briefed, however, and no other justice picked up on them, it seems unlikely that the court’s opinion will delve into them in any detail.