United States v. Smith

Filing

[10187227] Affirmed in Part and Remanded in Part;Terminated on the merits after oral hearing;Written, signed, published; Judges Lucero (concurring in part, dissenting in part), Gorsuch (authoring) and Holmes. Mandate to issue. [13-1112]

FILED
Appellate Case: 13-1112

Document: 01019271041

United States Court of Appeals
Date Filed: 06/30/2014 Circuit 1
Tenth Page:

June 30, 2014
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 13-1112

JOSHUA BODEAN SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:10-CR-00612-CMA-1)

O. Dean Sanderford, Assistant Federal Public Defender (Warren R. Williamson,
former Interim Federal Public Defender, with him on the briefs), Denver,
Colorado, for Defendant-Appellant.
J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

Must a sentencing court studiously ignore one of the most conspicuous
facts about a defendant when deciding how long he should spend in prison? After
a court sentences a man to many decades in prison for using a gun during a crime

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 2

of violence, must the court pretend the gun sentence doesn’t exist when weighing
an appropriate prison term for the underlying crime of violence?
That’s the blinkered view the government persuaded the district court to
adopt in this case. No one doubts that Joshua Smith deserves a long prison
sentence. He robbed two stores and shot the managers in both. For his conduct
he stands convicted of two counts of robbery (18 U.S.C. § 1951) and two counts
of using a gun “during and in relation to” those “crime[s] of violence” (18 U.S.C.
§ 924(c)). At sentencing, the district court began by recognizing that § 924(c)
mandated a 35-year prison term for Mr. Smith’s gun use during the robberies.
Turning then to the task of fixing a sentence for the robberies themselves, the
court acknowledged any robbery sentence had to run consecutively to, not
concurrently with, the mandatory gun sentence. Still, the question remained how
long Mr. Smith’s robbery sentence should be. How much more prison time
beyond about 2045 — when Mr. Smith will be 55 years old and otherwise eligible
for release — might be necessary and just. Normally, of course, a district court
enjoys considerable discretion when it comes to picking a prison term within the
applicable statutory range. But at the government’s urging in this case the district
court decided there was one set of facts it had to disregard — Mr. Smith’s
§ 924(c) gun convictions and the lengthy sentence it just issued for them.

2

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 3

When it comes to those facts alone the government argued and the district
court held a sentencing judge must remain willfully blind. According to the
government, a sentencing judge is powerless to reduce by a year, a month, or a
day the prison time it issues for an underlying crime of violence in light of a
simultaneously issued § 924(c) gun sentence. A judge can’t so much as consider
the fact a § 924(c) conviction and sentence exist. Even if the § 924(c) conviction
and sentence guarantee the defendant a prison term of many decades. Even if the
§ 924(c) prison term is certain to outlast the defendant’s life and the lives of
every person now walking the planet — itself no fanciful possibility. See, e.g.,
Deal v. United States, 508 U.S. 129 (1993); United States v. Angelos, 345 F.
Supp. 2d 1227, 1260-61 (D. Utah 2004), aff’d, 433 F.3d 738 (10th Cir. 2006). On
the government’s view, a district court must always and categorically disregard
the sentence it has just pronounced for a § 924(c) gun conviction when turning to
consider an appropriate sentence for the underlying and intimately related crime
of violence. Such a rule may not test the limits of the human capacity for selfdeception. But if allowed to stand it would transform the act of sentencing in
these cases from a searching and fact-sensitive inquiry aimed at finding a fitting
punishment into an enterprise built on a fiction, even a suspension of disbelief.
We are convinced the law doesn’t require so much from sentencing courts.
Neither should the perfidiousness of a defendant’s conduct be allowed to obscure
(or perhaps warp) the law’s teachings on this score. Viewed with a cold eye, the
3

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 4

relevant statutes permit a sentencing court to consider a defendant’s § 924(c)
conviction and sentence just as they permit a sentencing court to consider most
any other salient fact about a defendant. To say this much isn’t to suggest a
sentencing court must reduce a defendant’s related crime of violence sentence in
light of his mandatory gun enhancement sentence under § 924(c). Only that the
court is not required to feign the sort of ignorance the government demands.
*
We begin with 18 U.S.C. § 3661. “No limitation,” says the statute, may be
placed on a court’s power to consider information about a defendant’s
“background, character, and conduct” when seeking to fashion an appropriate
sentence. Id. As the Supreme Court has explained, this provision ensures
sentencing judges access to “the widest possible breadth of information about a
defendant” so that the punishments they issue “suit not merely the offense but the
individual.” Pepper v. United States, 131 S. Ct. 1229, 1240 (2011) (quoting
Wasman v. United States, 468 U.S. 559, 564 (1984)); see also Williams v. New
York, 337 U.S. 241, 247 (1949) (“[T]he punishment should fit the offender and
not merely the crime.”). In this way, the statute preserves a long tradition, one
extending back “before . . . the American colonies became a nation,” a tradition
of affording judges “discretion in the sources and types of evidence” they may
consult at sentencing, subject of course and always to the Constitution’s
constraints. Pepper, 131 S. Ct. at 1240 (quoting Williams, 337 U.S. at 246).
4

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 5

The government’s theory in this appeal sits uncomfortably with § 3661, the
Supreme Court’s interpretation of it, and the historical practice it embodies.
Rather than ensure a sentence predicated on a full view of the defendant, the
government asks us to bar sentencing courts from considering an entire category
of information about him. This despite the fact the Supreme Court has warned
that placing such “categorical bar[s]” on the information available to sentencing
courts risks “directly contraven[ing] Congress’[s] expressed intent in § 3661.”
Pepper, 131 S. Ct. at 1242. Despite the Court’s declaration that § 3661’s “broad
language” does not provide “any basis for the courts to invent a blanket
prohibition against considering certain types of evidence at sentencing.” United
States v. Watts, 519 U.S. 148, 152 (1997) (per curiam). And despite the fact the
Court has rejected proposal after proposal seeking to impose non-constitutional
limits on the information a court may consider at sentencing. See, e.g., Williams
v. Oklahoma, 358 U.S. 576, 584-86 (1959) (rejecting categorical bar against
considering conduct related to one count of conviction when sentencing for an
independent count of conviction); Nichols v. United States, 511 U.S. 738, 746-49
(1994) (defendant’s prior convictions); Witte v. United States, 515 U.S. 389, 397401 (1995) (conduct for which the defendant may later be prosecuted and
convicted); Pepper, 131 S. Ct. at 1241-43 (post-conviction rehabilitation efforts).
The government’s theory in this appeal sits uneasily, too, with the even
more specific guidance the Supreme Court has provided about § 3661’s
5

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 6

application in the § 924(c) context. In United States v. Watts, the Court read
§ 3661 to permit a sentencing court to find by a preponderance of the evidence
that the defendant engaged in the conduct alleged in a § 924(c) charge — even
though he was acquitted on that charge — and then use that finding to enhance
his sentence for the underlying crime of violence. 519 U.S. at 156-57. And given
that, one might well ask this: How can it be that § 3661 authorizes a sentencing
court to consider facts related to a defendant’s § 924(c) acquittal when fashioning
a sentence for the underlying crime of violence but not facts related to his
§ 924(c) conviction and sentence?
If anything, the case for applying § 3661 would seem a good deal more
compelling here than there. After all, even if § 3661 allows the practice in Watts
one could debate whether the Constitution prohibits it, forbidding courts (at least
usually) from imposing greater punishments that depend on facts neither admitted
by the defendant nor found by a jury. See Alleyne v. United States, 133 S. Ct.
2151, 2160-63 (2013); Rita v. United States, 551 U.S. 338, 373 (2007) (Scalia, J.,
concurring in part and concurring in the judgment). Meanwhile, no one has
identified any constitutional imperative that might prevent sentencing courts from
applying § 3661 to reduce crime of violence sentences in light of simultaneously
issued § 924(c) sentences. For that matter, in its briefs to this court the
government doesn’t even mention § 3661 or any of the Supreme Court’s guidance
about its scope or the tradition it codifies.
6

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 7

*
Still, that’s just the beginning of the government’s troubles. While § 3661
explains what a district court may consider at sentencing, 18 U.S.C. § 3553(a)
describes what a district court must consider when sentencing for crimes that lack
a mandatory sentence prescribed by statute — crimes like Mr. Smith’s underlying
§ 1951 robbery convictions. In what’s often called its parsimony principle,
§ 3553(a) directs courts to “impose a sentence sufficient, but not greater than
necessary, to comply” with several (admittedly incommensurate) policy goals.
Goals including a just punishment, adequate deterrence, and protection of the
public. And here again it is difficult to reconcile the government’s insistence that
district courts must categorically ignore § 924(c) convictions and sentences with
this statute’s demands.
Consider just one of the policy goals the statute says a district court must
consider, § 3553(a)(2)(C)’s concern with protecting the public. Surely a rational
district court could find that the length of the public’s guaranteed protection from
a defendant thanks to a mandatory § 924(c) sentence informs its analysis of the
public’s unmet need for further protection when it comes to sentencing the
defendant for his related crime of violence. After all, the marginal benefit for
public protection may appear quite different when a defendant is 23 years of age
— as Mr. Smith is now — and only recently removed from criminal conduct
compared to when he is 55 years old and 35 years removed from his last criminal
7

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 8

act — as Mr. Smith will be, approximately, when his mandatory § 924(c)
sentences end. Cf. Miles D. Harer, Fed. Bureau of Prisons, Recidivism Among
Federal Prisoners Released in 1987, at 3, 12 (1994) (reporting recidivism rates
“inversely related to age at release”).
In fact, sentencing courts routinely consider facts just like these. They
routinely consider the impact of a sentence already issued for one count of
conviction when trying to determine the appropriate punishment under § 3553(a)
for a related count of conviction. 1 Neither does the government dispute the
propriety of the practice. To the contrary, the government expressly concedes
that district courts normally may find “other sentences” issued for related counts
of conviction relevant when applying “§ 3553(a)’s broad categories of
consideration” to ascertain an appropriate punishment for a remaining count of

1

See, e.g., Pepper, 131 S. Ct. at 1251; Greenlaw v. United States, 554 U.S.
237, 253-54 (2008); United States v. Vidal-Reyes, 562 F.3d 43, 49 n.4 (1st Cir.
2009); United States v. Bay, 820 F.2d 1511, 1514 (9th Cir. 1987) (a sentencing
court is not required to “evaluate the gravity of each separate crime upon which a
conviction was obtained, and then select a punishment that would be appropriate
for each if considered independently of any other crimes.”); cf. United States v.
Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir. 2005) (forfeiture order part of sentencing
package); United States v. Teel, 691 F.3d 578, 585-86 (5th Cir. 2012) (bribery and
fraud prison terms); United States v. Flaschberger, 408 F.3d 941, 943-44 (7th Cir.
2005) (restitution order); United States v. Noble, 299 F.3d 907, 910 (7th Cir.
2002) (cocaine possession and conspiracy prison terms); United States v. Horob,
735 F.3d 866, 871 (9th Cir. 2013) (identity theft mandatory minimum prison
term); United States v. Jefferson, 308 F. App’x 2, 4 (7th Cir. 2009); United States
v. Hamilton, 323 F. App’x 27, 31 (2d Cir. 2009). See generally 12A Beth Bates
Holliday, Cyclopedia of Federal Procedure § 52:10 (3d ed. 2014).
8

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 9

conviction. Gov’t Br. 29.
*
So where does that leave us? Under a longstanding American tradition
embodied in § 3661 and § 3553(a), federal courts seeking a just sentence may
look to the whole of the defendant’s person, character, and crimes. As part of this
tradition, sentencing courts may examine and consider the impact of
contemporaneously issued sentences.
The government replies that two subsections lurking within § 924(c) itself
undo this tradition when it comes to gun charges. But while more specific
statutory terms surely can trump more general statutory guidance, neither will we
lightly assume Congress intended radical change to historical sentencing
practices. After all, “Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions — it does not, one might
say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, Inc., 531
U.S. 457, 468 (2001); see also Harrison v. PPG Indus., Inc., 446 U.S. 578, 602
(1980) (Rehnquist, J., dissenting) (“In a case where the construction of legislative
language such as this makes so sweeping and so relatively unorthodox a change as
that made here, I think judges as well as detectives may take into consideration
the fact that a watchdog did not bark in the night.”). A peek inside the two
subsections the government asks us to inspect, moreover, reveals none of the
radical change the government promises, only empty mouseholes.
9

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 10

The first subsection the government points to, 18 U.S.C. § 924(c)(1)(D)(ii),
states that mandatory minimum gun sentences may not run concurrently with “any
other term of imprisonment imposed on the” defendant, including any prison term
imposed for the defendant’s underlying crime of violence. Plainly, this language
ensures that convictions on gun charges and crimes of violence run consecutively
even if the district court might find justice better served by concurrent sentences.
In this way, the statute clearly does alter the normal operation of § 3553’s
parsimony principle: consecutive sentences must be issued even if the district
court thinks concurrent sentences sufficient to meet § 3553(a)’s policy objectives.
But more than this § 924(c)(1)(D)(ii) does not purport to do. It does not
say that in calculating the length of a (consecutive) crime of violence sentence a
district court must ignore the length of the mandatory minimum gun sentence. It
does not limit the factors the court may and must consider when setting a sentence
for the crime of violence. It does not increase the penalties for the underlying
crime of violence. In fact, it does not say anything about how the underlying
crime of violence must be punished, about what the “other term of imprisonment”
must be. The statute leaves that task to the usual sources of sentencing law
outside § 924(c), including § 3661 and § 3553. Section 924(c)(1)(D)(ii) says
simply that § 924(c)’s mandatory minimums must run consecutively to “any other
term of imprisonment.” And that means any other term of imprisonment.
Our thoughtful colleague in dissent disputes none of this. Instead, he joins
10

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 11

the government in relying on a second subsection, 18 U.S.C. § 924(c)(1)(A). Our
colleague insists this provision “unambiguous[ly]” and “plain[ly]” withdraws the
district court’s normal sentencing powers. Dissent at 1-2. But, respectfully, we
don’t see how this subsection is any more telling than the last. This subsection
says simply that “in addition to the punishment provided for” the defendant’s
underlying offense (in Mr. Smith’s case, robbery), a defendant must be sentenced
to “a term of imprisonment of not less than” a certain specified number of years
for his gun offense.
By its plain terms, this language ensures that a § 924(c) gun sentence is
indeed a mandatory minimum sentence. This language explains that the
defendant’s prescribed sentence for his gun use must be at least a certain number
of years (“not less than . . .”) and must be joined with or added to (come “in
addition to”) the sentence provided for his underlying offense. In this way, the
statute clarifies, too, that where courts once often thought a robbery or drug
transaction involving a gun constituted a single punishable offense, now two
separate statutory offenses exist to be punished. And the subsection guarantees
that — whatever the defendant’s sentence for his underlying offense — he will at
least and always serve a certain number of years for his gun crime.
But while doing all this, the subsection says nothing about the quantum of
punishment a defendant should receive for his underlying offense. Instead, the
provision speaks of its mandatory minimum gun sentences as coming “in addition
11

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 12

to the punishment provided” for the underlying offense. So it is the statute here
(again) takes it as given that the proper scope of punishment for a defendant’s
underlying crime is “provided” by some other lawful source. And, of course, it
is. In Mr. Smith’s case, the robbery statute (§ 1951), combined with § 3661 and
§ 3553, “provide” the punishment for his crime of violence. As we’ve seen, too,
those statutes expressly permit a full consideration of his background and
conduct, including his § 924(c) gun convictions and sentence.
Put differently, § 924(c)(1)(A) serves to ensure sentences for gun use are
indeed mandatory and minimum ones. It requires specific prison terms for using
or carrying a firearm and requires those terms to be served “in addition to” —
joined with, added to — whatever punishment is “provided” by other laws for a
defendant’s underlying offense. As significant as all this may be, it does not go
so far as to “provide” the sentence or sentencing procedure for a defendant’s
underlying offense. Nothing in the subsection purports to displace traditional
sentencing laws and practices with respect to that conviction. There are no
elephants hiding here.
*
That the government wishes us to impress on § 924(c) a good deal more
than that its text will sustain finds further confirmation from a statutory cousin.
In the identity theft context Congress has altered traditional sentencing practices
in the very way the government now wishes us to alter them in the gun use
12

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 13

context. Congress has acted in the identity theft context plainly and
unmistakably. All this strongly suggests that the first branch knows exactly how
to alter traditional sentencing practices when it wishes, that when it does so it
does so in ways and places clear enough for all to see — and that it has done
nothing of the kind in § 924(c).
Just as § 924(c) makes it a crime to use firearms “during and in relation to”
crimes of violence, 18 U.S.C. § 1028A criminalizes identity theft “during and in
relation to” certain enumerated felonies. Like § 924(c)(1)(A), § 1028A(a)
specifies that the penalties for the crime it creates come “in addition to the
punishment provided for” the underlying offense. And like subsection
(c)(1)(D)(ii) of § 924, subsection (b)(2) of § 1028A provides that certain
mandatory minimum prison terms for identity theft must run consecutively to any
other term of imprisonment for the underlying felony conviction. Many courts
have recognized the generally parallel construction of these statutes. See, e.g.,
Vidal-Reyes, 562 F.3d at 51-52; United States v. Magassouba, 619 F.3d 202, 206
(2d Cir. 2010); United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir. 2009).
See generally Molly Booth, Comment, Sentencing Discretion at Gunpoint: How
To Think About Convictions Underlying § 924(c) Mandatory Minimums, 77 U.
Chi. L. Rev. 1739, 1746-48 (2010).
But after subsection (b)(2), § 1028A veers off in a different direction,
adding something new and telling in subsection (b)(3). There the statute provides
13

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 14

that
in determining any term of imprisonment to be imposed for the
felony during which the [identity theft occurred], a court shall not in
any way reduce the term to be imposed for such crime so as to
compensate for, or otherwise take into account, any separate term of
imprisonment imposed or to be imposed for a violation of this
section[.]
By its plain terms, this language prohibits a district court from considering any
sentence imposed under § 1028A when sentencing the defendant for his
underlying felony.
Here, then, is exactly the language the government wants to read into
§ 924(c). It is clear and unqualified. Proof that Congress knows exactly how to
strip district courts of their traditional sentencing discretion when it wishes to do
so. Further proof too that § 924(c) lacks any such command. After all, it is
axiomatic that such notable linguistic differences in two otherwise similar statutes
are normally presumed to convey differences in meaning. See, e.g., United States
v. Ressam, 553 U.S. 272, 277 (2008) (comparing § 924(c) and another similar
statute, 18 U.S.C. § 844(h)); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 530
(1982) (“[A]lthough two statutes may be similar in language and objective, we
must not fail to give effect to the differences between them.”). And here the
difference in language is unmistakable. So much so that if we adopted the
government’s reading of § 924(c) as imposing a categorical bar on considering
mandatory gun prison terms when sentencing for underlying crimes, we’d surely

14

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 15

have to read the virtually identical language of § 1028A in parallel fashion — and
in this way render subsection (b)(3) superfluous, itself always a disfavored result
in the business of statutory interpretation. See, e.g., TRW Inc. v. Andrews, 534
U.S. 19, 31 (2001). 2
Neither does the government’s response help its cause. The government
doesn’t dispute that § 1028A parallels § 924(c) in many ways. It doesn’t dispute
that the differences between these two similar statutes suggest differences in
meaning. It doesn’t dispute that its reading of § 924(c) would, by parallel
application in § 1028A, render § 1028A(b)(3) superfluous. Instead the
government observes that § 1028A was passed in 2004, many years after § 924(c),
and from this the government surmises that § 1028A(b)(3) was “likely drafted in
response to earlier attempts by defendants in the § 924(c) context to do what
[Mr.] Smith is doing here.” Gov’t Br. 29. But the government’s musings here are

2

Underscoring the point is how courts have interpreted § 1028A(b)(3). At
least two circuits have held that subsection (b)(3)’s language does only what it
says — preventing a sentencing court from taking account of § 1028A’s
mandatory minimums when considering a sentence for predicate offenses, but
permitting sentencing courts to consider § 1028A mandatory minimums when
sentencing for other convictions that don’t qualify as predicate offenses. VidalReyes, 562 F.3d at 56; United States v. Wahid, 614 F.3d 1009, 1013-14 (9th Cir.
2010). In reaching this conclusion, these courts have expressly rejected the
government’s argument, which it ventures again here, that the statute’s
“consecutive sentence requirement” effectively forbids sentencing judges from
considering the length of the mandatory minimum when determining the term of
imprisonment for all accompanying counts of conviction. See Vidal-Reyes, 562
F.3d at 52-53.
15

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 16

no more than that: the government nowhere seeks to document its guesswork
about Congress’s imagined collective purpose. And even if the government could
document its guesswork, it would hardly help its cause. Even supposing Congress
intended § 1028A(b)(3) to say what it believed § 924(c) meant to say all along,
that would serve only to prove that Congress itself realizes § 924(c)’s words do
not prevent sentencing judges from considering mandatory minimum sentences.
It would highlight, too, the fact that Congress has been on notice of this issue for
many years and declined to modify § 924(c) even as it has chosen to adopt
§ 1028A(b)(3) and amend § 924(c) in various other ways. See Act of Oct. 6,
2006, Pub. L. No. 109-304, § 17(d)(3), 120 Stat. 1485, 1707 (2006); Act of Oct.
26, 2005, Pub. L. No. 109-92, § 6(b), 119 Stat. 2095, 2102 (2005); cf. Ressam,
553 U.S. at 277 (“While it is possible that this omission was inadvertent, that
possibility seems remote given the stark difference that was thereby introduced
into the otherwise similar texts . . . .”). In any event, we are of course bound by
the language Congress actually employed in § 924(c) — not by the (conjectured)
aims of a subsequent Congress drafting a different statute decades later. See
Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081-82 (2011); United States v.
United Mine Workers of Am., 330 U.S. 258, 281-82 (1947).
Recognizing the weakness of the government’s reply, our dissenting
colleague offers another of his own devise. In his view, Congress added
subsection (b)(3) to § 1028A merely to underscore the point it already made in
16

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 17

subsection (b)(2). Sometimes, our colleague notes, legislatures employ redundant
language. See Dissent at 4-5. We don’t doubt that’s true but neither are we
entitled to reach such a conclusion lightly. Respect for democratic authority
requires unelected federal judges to exercise great caution before declaring the
words enacted by the people’s representatives to be superfluous. As the Supreme
Court has (repeatedly) instructed, “[i]t is our duty to give effect, if possible, to
every clause and word of a statute” and we should be “reluctant to treat statutory
terms as surplusage in any setting.” Duncan v. Walker, 533 U.S. 167, 174 (2001)
(internal quotation marks and brackets omitted). In fact, the Court has called this
a “cardinal principle” of statutory construction. Id. Our reading of § 1028A
abides these directions and affords meaning to all of Congress’s words while our
respected colleagues’ reading does not, effectively leaving an entire statutory
subsection with nothing to do. 3
*
So far we’ve consulted the traditional statutory sentencing structure in
§ 3661 and § 3553(a), the specific language of § 924(c) itself, and a close
legislative cousin in § 1028A. All point against the government. But what if we

3

Neither, for that matter, does the legislative history our colleague points
to license reading plain statutory terms out of the law. It merely offers an
overview of § 1028A’s provisions and remarks unremarkably that they are meant
“to ensure the intent of [the] legislation is carried out.” H.R. Rep. No. 108-528,
at 10 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 785-86.
17

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 18

broaden our view still further and ask about those who ventured down this road
before us? Have they found the enormous change to traditional sentencing
principles hidden in § 924(c) that we cannot find? The answer does little to help
the government’s cause.
Take the sentencing commission. It isn’t necessary for us to decide what
deference (if any) this court owes the commission’s interpretations of sentencing
statutes. For our present purposes it is surely notable, however, that those
appointed by Congress to advise the federal courts on their sentencing
responsibilities don’t seem to read § 924(c) as the government proposes. The
advisory sentencing guidelines expressly state that a § 924(c) sentence should
influence (and serve to reduce) a sentencing court’s calculation of the guidelines
range for the underlying offense in at least one way. When a § 924(c) sentence
exists, § 2K2.4 advises district courts not to apply certain otherwise available
enhancements for the defendant’s underlying criminal conduct. Applying weapon
enhancements while also sentencing under § 924(c) would amount to “duplicative
punishment” in the commission’s view by counting the defendant’s weapon use
twice. See U.S. Sentencing Guidelines Manual app. C, amend. 599; id. § 2K2.4
cmt. n.4. If, as the government supposes in this appeal, the statute’s text barred
district courts from considering § 924(c) punishments when issuing sentences for
underlying offenses, the guidelines’ concern about double-counting would violate
this textual command. After all, the government tells us a district court may
18

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 19

never consider a § 924(c) sentence when fashioning a sentence for the underlying
crime — precisely what the Sentencing Commission in § 2K2.4 says a district
court ought to do. 4
Next consider the case law. The government argues before this court that
§ 924(c)(1)(A) and (c)(1)(D)(ii) radically limit district courts’ traditional
discretion to fashion punishments for underlying offenses that are both condign
and fully considered. Yet for years the government has suggested just the
opposite — contending in case after case that district courts may and should
consider § 924(c) sentences when sentencing for related crimes. And court after

4

The dissent suggests the government’s reading of § 924(c) might be
reconciled with § 2K2.4 if the guideline is interpreted to permit considering the
§ 924(c) conviction alone, apart from the accompanying sentence. See Dissent at
5. But of course § 2K2.4 fears duplicative punishment and does so only because
the § 924(c) conviction comes with a prison sentence attached.
The government (but not the dissent) argues that § 5G1.2(a) advises
sentencing courts to disregard § 924(c) mandatory minimums when fixing related
prison sentences. In fact, § 5G1.2(a) does no such thing. That provision merely
advises that mandatory minimum sentences like those found in § 924(c) should
“be determined by that statute and imposed independently” of other sentences. So
a § 924(c) gun sentence should be determined by the minimums prescribed in that
statute rather than using a § 3553(a) analysis (no surprise there) and should run
consecutively to any other sentence imposed for the underlying crime (no surprise
there either). Absent in § 5G1.2(a) is any suggestion that the sentence for the
underlying crime must be calculated without reference to the existence of the
§ 924(c) sentence. See United States v. Rodriguez, 112 F.3d 26, 30 (1st Cir.
1997); Vidal-Reyes, 562 F.3d at 55. Indeed, the applicable note confirms that
§ 5G1.2(a) only requires that § 924(c)’s mandatory minimum “be imposed to run
consecutively to any other term of imprisonment.” U.S. Sentencing Guidelines
Manual § 5G1.2 cmt. n.2. Here again there is no effort to control or dictate what
that “any other term of imprisonment” should be.
19

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 20

court has agreed.
Many cases arise this way. In light of § 924(c)’s mandatory minimum for a
gun charge, the district judge decides that a relatively modest sentence for the
underlying crime of violence (or drug offense) would serve § 3553(a)’s parsimony
principle. Then the court of appeals overturns the § 924(c) conviction and,
despite the defendant’s protests, permits the district court to revisit and adjust
upward its sentence for the underlying crime. At no point in this process does the
government say what it says here — that it would be entirely wrong for a district
court to assess the impact of the § 924(c) sentence when sentencing for the
underlying offense under § 3553(a). Instead, the government says of course the
district court properly considered the § 924(c) sentence in its original § 3553(a)
sentencing analysis for the underlying crime. And the government says of course
the district court on remand should now account for the fact that the § 924(c)
sentence is gone. The government says all this even when the district court in the
initial sentencing proceeding offered no hint that the defendant’s mandatory
§ 924(c) sentence influenced its sentence for the underlying crime.
Typically, the government’s argument goes like this: “[T]he fact that the
District Court imposed separate sentences on [the defendant] for each count of
conviction did not diminish their legal relatedness . . . .” 5 And typically the

5

Brief for the United States of America at 18, Rodriguez v. United States,
116 F.3d 1002 (2d Cir. 1997) (No. 96-2763), 1996 WL 33667818; see also Final
20

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 21

courts of appeals respond with a remand for resentencing like this: “Clearly, the
§ 924(c) offense and the underlying offense are interdependent and result in an
aggregate sentence, not sentences which may be treated discretely.” 6
That in all these cases stretching back nearly twenty years no one has found
anything cowled within § 924(c) to prohibit district courts from accounting for a
§ 924(c) sentence when fixing the length of a related sentence — that the
government itself has previously argued that the relevant statutes allow district
courts just this discretion — surely counts as further evidence that the
government’s current interpretation of § 924(c) is, well, rather remarkable. 7

Brief and Addendum for Appellee at 18, United States v. Townsend, 178 F.3d 558
(D.C. Cir. 1999) (No. 98-3041), 1998 WL 35240367 (“[T]he inter-dependency
between § 924(c) and [the guidelines calculation for the underlying drug offense]
results in an aggregate sentence for drug convictions and simultaneous § 924(c)
convictions, not separate and distinct sentences for each violation.”); Brief of
Plaintiff-Appellee United States of America at 12, United States v. Watkins, 147
F.3d 1294 (11th Cir. 1998) (No. 97-2224), 1997 WL 33574255 (“The district
court properly viewed Defendant’s sentence as a ‘package’ . . . .”).
6

United States v. Mendoza, 118 F.3d 707, 710 (10th Cir. 1997); see also
United States v. Townsend, 178 F.3d 558, 568 (D.C. Cir. 1999) (“[A] mandatory
[§ 924(c)] sentence may influence the sentence imposed on other counts.”);
United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Mata,
133 F.3d 200 (2d Cir. 1998); United States v. Davis, 112 F.3d 118 (3d Cir. 1997);
United States v. Smith, 115 F.3d 241 (4th Cir. 1997); United States v. Rodriguez,
114 F.3d 46 (5th Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir.
1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996); Gardiner v. United
States, 114 F.3d 734 (8th Cir. 1997); United States v. McClain, 133 F.3d 1191
(9th Cir. 1998); United States v. Easterling, 157 F.3d 1220 (10th Cir. 1998);
United States v. Watkins, 147 F.3d 1294 (11th Cir. 1998).
7

The dissent suggests that the weapon enhancement provision in § 2K2.4
“explains” why district courts may reconsider underlying offense sentences upon
21

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 22

Of course and as our dissenting colleague rightly notes, a handful of recent
cases from outside the resentencing context do adopt the government’s (current)
view that § 924(c) mandatory minimums may never influence the sentence for an
underlying crime. See Dissent at 3-4. 8 Yet many others expressly reject just this
line. 9 Neither do we find the dissent’s handful of cases persuasive on their own
terms. They are often terse to the point of being summary (one contains two
paragraphs of reasoning, another four). None pauses to consider the import of

a defendant’s successful challenge to a § 924(c) conviction. As the dissent notes,
once the § 924(c) conviction evaporates applying a weapon enhancement for the
underlying offense no longer threatens to count the same conduct twice. See
Dissent at 5 n.1. But none of this helps the dissent’s cause. Even if true, it still
implies that a § 924(c) punishment may be considered at sentencing for an
underlying offense. Besides, in truth, these cases generally don’t restrict the
sentencing judge’s discretion at resentencing solely to applying the weapon
enhancement. See, e.g., Townsend, 178 F.3d at 568 (collecting cases).
8

See, e.g., United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007);
United States v. Chavez, 549 F.3d 119, 133-35 (2d Cir. 2008); United States v.
Franklin, 499 F.3d 578, 584-85 (6th Cir. 2007); United States v. Hatcher, 501
F.3d 931, 933 (8th Cir. 2007); United States v. Powell, 444 F. App’x 517, 522 (3d
Cir. 2011); United States v. McCullers, 395 F. App’x 975, 978 (4th Cir. 2010)
(per curiam).
9

See, e.g., United States v. Webster, 54 F.3d 1, 4 (1st Cir. 1995) (“[I]n
departing from a guideline sentence the district court is free to exercise its own
judgment as to the pertinence, if any, of a related mandatory consecutive sentence
[under § 924(c)].”); Franklin, 499 F.3d at 587-89 (Moore, J., concurring in the
judgment); United States v. Ezell, 417 F. Supp. 2d 667, 678 (E.D. Pa. 2006), aff’d
on other grounds, 265 F. App’x 70 (3d Cir. 2008); Angelos, 345 F. Supp. 2d at
1260; United States v. Ciszkowski, 430 F. Supp. 2d 1283, 1288 (M.D. Fla. 2006),
aff’d on other grounds, 492 F.3d 1264, 1271 (11th Cir. 2007); United States v.
Roberson, 573 F. Supp. 2d 1040, 1050-51 (N.D. Ill. 2008); United States v.
Barton, 442 F. Supp. 2d 301, 303-04 (W.D. Va. 2006); United States v. Bailey,
No. CR 12-4083-MWB-2, 2013 WL 4735697 (N.D. Iowa Sept. 3, 2013).
22

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 23

§ 3661. None addresses § 924(c)’s demand only that its sentences run
consecutively to any other sentences, in addition to whatever punishment is
“provided for” underlying offenses, without purporting to provide that
punishment itself or affect its length. All overlook § 1028A, failing to consider
the fact their interpretations of § 924(c) effectively render § 1028A(b)(3)
superfluous. None repudiates (or even mentions) the many cases — including
cases from these very same courts — treating § 924(c) and underlying sentences
as properly interrelated when the government seeks resentencing after the
defendant’s § 924(c) conviction is vacated. One case even seems to treat the
sentencing guidelines as binding rather than advisory.
Neither can anyone be expected to remain insensible to the anomaly the
government’s notably inconsistent advocacy on this issue would seem to invite.
On the one hand, the government seems to think that when a sentencing judge
shows any sign of accounting for § 924(c) by reducing prison time for an
underlying offense, it can object and require the latter sentence to be
independently calculated (and in all likelihood longer). On the other, the
government presumably wishes to preserve the option to insist on the
recalculation (and in all likelihood the lengthening) of underlying offense
sentences should any § 924(c) convictions be overturned, because whether or not
the sentencing court showed any sign of doing so it did consider the § 924(c)
sentence in its § 3553(a) analysis for the underlying crime. But it seems to us
23

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 24

that district courts either may lawfully consider § 924(c) when sentencing for
underlying offenses under § 3553(a) or they may not. Surely (hopefully) the
government does not mean to suggest a district court may consider a § 924(c)
sentence only when that helps it win longer prison terms.
*
With so much against it in the text and structure of the relevant statutes,
with so little support from administrative or case law authorities, the government
is left with a vague purposive argument. Because Congress meant to be “severe”
in punishing § 924(c) for gun convictions with long mandatory minimum
sentences, we should also ensure “severity” by precluding district courts from
taking § 924(c) sentences into account even when they are engaged in sentencing
for separate convictions under § 3661 and § 3553(a). Cf. Dissent at 2. If there’s
any doubt about how best to interpret § 924(c), we should opt for the more severe
option to effect (presumed) congressional intent: a sort of rule-of-severity
interpretive canon, if you will.
This suggestion commits the logical mistake of overgeneralization.
Because the statute may command severity in one way (lengthy mandatory
minimums for gun convictions) the government surmises we should be severe in
another way too (upending normal sentencing procedure for related crimes). But
that much doesn’t follow. Rather than attempt to divine some abstract purposes
the government surmises Congress sought to achieve and then force all the
24

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 25

statute’s provisions into their service, courts owe respect first and foremost to
“the means [Congress] has deemed appropriate, and prescribed, for the pursuit of
those purposes.” MCI Telecomm’ns Corp. v. Am. Tel & Tel. Co., 512 U.S. 218,
231 n.4 (1994). After all, it’s a rare statute that pursues a single purpose
unrelentingly. In the real world, laws embody legislative compromises and seek
to balance disparate interests. And it’s hardly strange to think that Congress
might have wished to preserve a degree of judicial discretion at sentencing —
discretion, after all, that both represents the historical norm and is itself embodied
in congressional statutes. See Bd. of Governors v. Dimension Fin. Corp., 474
U.S. 361, 374 (1986) (“Invocation of the ‘plain purpose’ of legislation at the
expense of the terms of the statute itself . . . prevents the effectuation of
congressional intent.”); Genova v. Banner Health, 734 F.3d 1095, 1099 (10th Cir.
2013) (“[O]ne can go badly awry assuming . . . that whatever might seem to
further a statute’s primary objective must be the law.” (citation and quotation
marks omitted)).
Besides, even if the government’s arguments about the import of
§ 924(c)(1)(A) and (c)(1)(D)(ii) might be thought by others to contain some
ambiguous force we have failed to appreciate fully, we don’t default to a
presumption of severity but to the rule of lenity. The rule of lenity dictates that
any doubts at the end of a thorough statutory investigation must be resolved for
the defendant, any tie must go to the citizen, not the state. In our legal order it is
25

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 26

not the job of independent courts to bend ambiguous statutory subsections in
procrustean ways to fit the prosecutor’s bill. See, e.g., Bifulco v. United States,
447 U.S. 381, 387 (1980); United States v. R.L.C., 503 U.S. 291, 305-06 (1992);
United States v. Universal C.I.T. Credit Corp, 344 U.S. 218, 221-22 (1952).
The government’s contrary argument brings to mind Kimbrough v. United
States, 552 U.S. 85 (2007). There the trouble began when Congress set minimum
and maximum sentences for cocaine offenses at a 100:1 powder-to-crack ratio.
From this fact, the government inferred that courts sentencing between the
minimum and maximum had to use the same 100:1 ratio. Though nothing in the
statutory text compelled such a result, the government argued that anything less
would’ve offended Congress’s overarching (if unexpressed) purpose. The
Supreme Court rejected that view emphatically because it “lack[ed] grounding” in
the statutory text. 552 U.S. at 102. The statute in that case set sentencing floors
and ceilings using a 100:1 ratio but said “nothing about the appropriate sentences
within these brackets” and left those matters to the normal operation of § 3661
and § 3553(a). Id. at 102-03. Exactly the same holds true here. The statute in
our case sets sentencing floors for gun crimes under § 924(c). We respect and
enforce that direction. But nothing in § 924(c) speaks to the length of sentence a
district court must issue for an underlying crime or the factors it may or must
consider. The sort of restrictions the government seeks simply lack grounding in

26

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 27

statutory text. 10
*
Having said so much to this point we should take care to emphasize what
we have not said. If sentencing judges may take § 924(c) sentences into account
when sentencing for underlying offenses, the dissent seems to worry as a
pragmatic matter that nothing will prevent them from issuing shorter underlying
offense sentences solely because they think the mandatory § 924(c) sentence
“excessive.” See Dissent at 3. But nothing we’ve said should be taken as
suggesting a district court may issue a sentence based on nothing more than a
policy disagreement with Congress about the length of the mandatory minimums
it has prescribed. In this appeal, we recognize instead and only that the length of
a § 924(c) sentence can at least sometimes bear legitimate relevance to the
sentencing considerations (like the time needed to ensure the protection of the
public) that Congress has statutorily directed courts to consider when sentencing
for the underlying crime.

10

It may pose a nice question, too, just how far Congress may go,
consistent with the Constitution’s guarantees, in forcing a sentencing judge to
disregard undisputed facts about a defendant. See Pepper, 131 S. Ct. at 1240
(noting that “both before and since the American colonies became a nation,”
courts have had “wide discretion in the sources and types” of information used to
assist at sentencing). But, happily, it is a question we need not answer in this
case because, as we’ve seen, nothing in the text of § 924(c) compels such a result.
27

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 28

Even here our point is exceedingly narrow. We don’t mean to suggest that
a district court must reduce a defendant’s crime of violence sentence in light of a
related § 924(c) sentence. We don’t even mean to suggest a sentencing judge
should determine what bottom-line aggregate sentence best serves her
understanding of a just punishment for all of the defendant’s crimes and then
adjust the individual sentences to achieve that result. Instead, we acknowledge
simply that a district court may at least sometimes find the length of a § 924(c)
sentence relevant to the sentencing factors Congress has expressly directed it to
consider when sentencing for an underlying crime. The government admits that a
district court generally may find “other sentences” it has issued for related counts
of conviction relevant when applying “§ 3553(a)’s broad categories of
consideration” to ascertain an appropriate punishment for a remaining count of
conviction. Gov’t Br. 29. Today we hold only that nothing in § 924(c) upends
this traditional principle.
To be sure, allowing districts court to consider a § 924(c) conviction and
sentence for proper purposes cannot guarantee that none will ever consider a
§ 924(c) conviction and sentence for improper purposes. But that sort of problem
is always present at sentencing — it’s always possible courts might reduce or
increase a sentence for reasons not authorized by law. And the solution for that
problem is already in hand: we engage in appellate review of sentences to guard
against such abuses of discretion. See 18 U.S.C. § 3742. Courts of appeals are
28

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 29

fully empowered to intervene when a district court bases a sentence solely on
hostility to Congress’s laws (including § 924(c)) rather than a good-faith
application of Congress’s laws (including § 3553(a)), or when a court’s attempts
to apply sentencing law yield a result outside the realm of the reasonable. See,
e.g., Gall v. United States, 552 U.S. 38, 51 (2007). 11
Worries that district courts might abuse the discretion afforded them by law
may be reason enough to permit appellate review, but they aren’t reason enough
to withdraw that discretion in defiance of the plain text of the relevant statutory
authorities. Maybe we can debate whether in other areas the law is or should be
written with an eye to the likely reaction of the “bad man.” Compare Oliver
Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459-61 (1897)
(suggesting yes), with H.L.A. Hart, The Concept of Law 40 (3d ed. 2012)
(suggesting no). But surely we have not yet arrived at the day when appellate
judges feel the need to adorn sentencing statutes with new language of their own
hand out of concern for the “bad district judge.” 12
11

So, for example, we suspect it will be a good deal harder for a judge
striving to follow § 3553(a) to sustain a sincere judgment that zero years provides
“sufficient, but not greater than necessary” punishment for an underlying offense
when the § 924(c) gun sentence is 5 years — as in our colleague’s hypothetical
example — than when it’s the 35 years Mr. Smith faces or still longer terms
defendants in other cases have confronted. See Dissent at 1. And on appellate
review, such a judgment (whether sincere or not) might again be harder to sustain.
12

Even if we were tempted to manufacture a rule based on a cynical
assumption about the nefarious hidden motives of sentencing judges, the
government’s proposal in this case would do little to address the perceived
29

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 30

*
At the end of this long road, it is apparent to us that nothing in current law
prohibits a district court’s considering a § 924(c) conviction and sentence when
seeking to assign a just punishment for a related crime of violence. Sentencing in
this context may proceed just as it does elsewhere, with a humble recognition that
“no more difficult task confronts judges than the determination of punishment”
and “[e]ven the most self-assured judge may well want to bring to his aid every
consideration that counsel for the accused can appropriately urge.” Carter v.
Illinois, 329 U.S. 173, 178 (1946). 13
problem. A “bad judge,” after all, could just as easily reduce the sentence for an
underlying crime out of sheer dislike of § 924(c) — or for any number of
impermissible reasons — all while insisting on the record that his decision was
influenced only by lawful factors.
13

There remains one final matter we must address. Mr. Smith also argues
the district court erred by admitting testimony from a forensic firearm and
toolmark examiner. Firearm toolmark analysis has recently come under attack for
depending on subjective judgment, rarely using control weapons, and risking an
observer effect. See, e.g., United States v. Taylor, 663 F. Supp. 2d 1170, 1179
(D.N.M. 2009); United States v. Green, 405 F. Supp. 2d 104, 119-23 (D. Mass.
2005); see also Nat’l Research Council, Strengthening Forensic Science in the
United States: A Path Forward 150-55 (2009). The problem is, Mr. Smith made
plain at oral argument that he doesn’t challenge the expert’s admission in this
case on substantive grounds: he argues only that the district court should have
held a hearing before allowing his testimony rather than inviting the parties’
submissions on paper. But Mr. Smith identifies no evidence or argument he
wanted to place before the court in person that he wasn’t able to put forth on
paper. If the district court erred at all, then, Mr. Smith gives us no reason to
think the error was anything but harmless. And we won’t require a new
proceeding in the district court when there’s so little reason to doubt “the existing
one reached the right result.” StorageCraft Tech. Corp. v. Kirby, 744 F.3d 1183,
1191 (10th Cir. 2014); see also Kinser v. Gehl Co., 184 F.3d 1259, 1271-72 (10th
30

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 31

The conviction is affirmed but the case is remanded for resentencing
consistent with the terms of this opinion.

Cir. 1999), abrogated in part on other grounds by Weisgram v. Marley Co., 528
U.S. 440 (2000).
31

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 32

13-1112, United States v. Smith
LUCERO, J., concurring in part, dissenting in part.
My colleagues ask: “Must a sentencing court studiously ignore one of the most
conspicuous facts about a defendant when deciding how long he should spend in prison?”
(Majority Op. 1.) That might be an interesting question to address, but as I see it, the real
question presented in this appeal is whether the plain language of 18 U.S.C. § 924(c)
allows a trial court to reduce a defendant’s sentence for an underlying crime of violence
based on concerns that the statutorily prescribed § 924(c) sentence is too harsh. Because
Congress has mandated that § 924(c) sentences be imposed “in addition to” the sentence
for an underlying crime of violence, I would answer that question in the negative.
Consider a district court judge who, after weighing the factors set forth in
§ 3553(a), determines that a defendant convicted of robbery should be sentenced to five
years’ imprisonment. Upon announcing his intent to impose the sentence, the prosecutor
interjects that the defendant has also been convicted of using a firearm during and in
relation to a crime of violence under § 924(c), which carries a five-year minimum. The
judge acknowledges that he overlooked the § 924(c) count, but rules that a total sentence
of five years is nevertheless proper. Because the § 924(c) sentence must be imposed
consecutive to the robbery sentence, the district court revises the robbery sentence down
to zero.
Under these circumstances, no one would describe the § 924(c) sentence as having
been imposed “in addition to” the robbery sentence, as § 924(c)(1)(A) requires.
Nonetheless, the majority concludes that this type of procedure would not violate the text
-1-

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 33

of § 924(c). Because the unambiguous statutory language precludes such a result, I
respectfully dissent.
Mandatory minimum sentences contained in § 924(c) have been described as
“extremely severe,” United States v. T.M., 413 F.3d 420, 426 (4th Cir. 2005),
“draconian,” United States v. Hebert, 131 F.3d 514, 526 (5th Cir. 1997) (DeMoss, J.,
dissenting in part), and “unjust, cruel, and irrational,” United States v. Angelos, 345 F.
Supp. 2d 1227, 1263 (D. Utah 2004). It is difficult to quibble with these statements. The
Judicial Conference of the United States, the U.S. Sentencing Commission, and the
American Bar Association have all urged Congress to reconsider the prudence of lengthy
mandatory minimums. See United States v. Bowen, No. CR-10-204, 2012 U.S. Dist.
LEXIS 50670, at *24-44 (E.D. La. Apr. 11, 2012) (unpublished) (collecting
commentary).
Despite the problems with § 924(c), “[i]t is well established that when the statute’s
language is plain, the sole function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its terms.” First Nat’l Bank v.
Woods (In re Woods), 743 F.3d 689, 694 (10th Cir. 2014) (quotation omitted).
Mandatory minimums in § 924(c)(1)(A) must be imposed “in addition to the punishment
provided for [an underlying] crime of violence or drug trafficking crime,” § 924(c)(1)(A),
and “[n]otwithstanding any other provision of law,” may not “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,” § 924(c)(1)(D).
-2-

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 34

As the foregoing hypothetical illustrates, accepting Smith’s argument would
permit district courts to reduce or even replace an otherwise proper sentence for an
underlying crime of violence based on the court’s concern that the mandatory minimum
is excessive. I agree with the vast majority of circuits to have considered this issue that
such a procedure violates the unambiguous command that § 924(c) sentences be imposed
“in addition to” the sentence for an underlying crime of violence. See United States v.
Chavez, 549 F.3d 119, 135 (2d Cir. 2008) (“[A] sentencing court is required to determine
the appropriate prison term for the count to which the § 924(c) punishment is to be
consecutive; and if the court reduces the prison term imposed for that underlying count
on the ground that the total sentence is, in the court’s view, too severe, the court conflates
the two punishments and thwarts the will of Congress that the punishment imposed for
violating § 924(c) be ‘addition[al]’ and ‘no[t] . . . concurrent[].’”); United States v.
Hatcher, 501 F.3d 931, 933 (8th Cir. 2007) (sentencing court could not permissibly
“conflate[] the sentences for the § 924(c) offenses and the related [underlying] crimes”);
United States v. Franklin, 499 F.3d 578, 583 (6th Cir. 2007) (“This statutory language
reflects the intent of Congress that the § 924(c)(1) sentence must be imposed ‘in addition
to’ a reasonable guideline range sentence.”); United States v. Roberson, 474 F.3d 432,
436 (7th Cir. 2007) (“[T]o use the presence of a section 924(c)(1) add-on to reduce the
defendant’s sentence for the underlying crime would be inconsistent with Congress’s
determination to fix a minimum sentence for using a firearm in [the underlying crime].”);
see also United States v. Powell, 444 F. App’x 517, 522 (3d Cir. 2011) (unpublished)
(“The District Court properly refused to give any weight to the severity of the statutory
-3-

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 35

minimum sentences for the § 924(c) counts when determining the sentence for the
[underlying] counts.”); United States v. McCullers, 395 F. App’x 975, 978 (4th Cir.
2010) (unpublished) (“[U]nder § 924(c), a defendant is first sentenced for the underlying
drug trafficking offense, without consideration for the applicable consecutive sentences
related to the firearm violations.”). But see United States v. Webster, 54 F.3d 1, 4 (1st
Cir. 1995) (“[I]n departing from a guideline sentence the district court is free to exercise
its own judgment as to the pertinence, if any, of a related mandatory consecutive
sentence.”).
The majority cites to §§ 3553 and 3661, which set the general sentencing policies
district courts must follow. (Majority Op. 4-9.) I agree that § 924(c) strays from these
general policies, and from our history of individualized judicial sentencing practices.
(See Majority Op. 4-5.) But “specific statutory provisions prevail over more general
provisions.” United States v. Burke, 633 F.3d 984, 989 (10th Cir. 2011) (quotation
omitted). And Congress may impinge upon judicial discretion by setting mandatory
minimums. See United States v. Hatch, 925 F.2d 362, 363 (10th Cir. 1991).
In addition to the general statutory provisions, the majority relies on 18 U.S.C.
§ 1028A, another mandatory minimum that includes language similar to § 924(c), but
adds the proviso that “a court shall not in any way reduce the term to be imposed for [an
underlying] crime so as to compensate for, or otherwise take into account, any separate
term of imprisonment imposed or to be imposed for a violation of this section.”
§ 1028A(b)(3). If the “in addition to” language contained in both § 924(c) and § 1028A
were enough, the majority concludes, this latter proviso would be superfluous. (Majority
-4-

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 36

Op. 14-15.) But Congress may include technically unnecessary language out of an
abundance of caution under the canon ex abundanti cautela. See Marx v. Gen. Revenue
Corp., 668 F.3d 1174, 1183 (10th Cir. 2011). Indeed, the legislative history of § 1028A
indicates that Congress directed the mandatory minimum to be imposed “in addition to
any term of imprisonment for the underlying offense,” and included subsection (b)(3) “to
ensure the intent of th[e] legislation is carried out.” H.R. Rep. No. 108-528, at 10 (2004),
reprinted in 2004 U.S.C.C.A.N. 779, 785-86. That Congress chose a belt-and-suspenders
approach in one statute does not render suspenders alone insufficient.
Finally, the majority cites to a Guidelines application note, U.S.S.G. § 2K2.4, cmt.
n.4, which provides that a sentencing enhancement for using a firearm should not be
applied to an underlying crime of violence if the defendant is also convicted under
§ 924(c). (See Majority Op. 18-19.)1 Whether this note is consistent with the statute is a
reasonable question, but not one before us. It may be that the application note
permissibly allows for consideration of a § 924(c) conviction rather than a § 924(c)
sentence given that its treatment of the enhancement does not vary based on which of
§ 924(c)’s several mandatory minimum sentences applies. In any event, a Guidelines

1

The availability of this enhancement for an underlying crime of violence absent a
§ 924(c) conviction explains most of the cases discussing the legal relatedness of the two
charges. (See Majority Op. 21 & n.6.) These cases concern resentencing for defendants
whose § 924(c) convictions were vacated. See, e.g., United States v. Mendoza, 118 F.3d
707, 710 (10th Cir. 1997). But see United States v. Watkins, 147 F.3d 1294, 1296-97
(11th Cir. 1998) (holding that the availability of the § 2D1.1(b)(1) enhancement is not
“an integral component of the court’s jurisdiction to resentence on unchallenged counts”
after a § 924(c) conviction is vacated).
-5-

Appellate Case: 13-1112

Document: 01019271041

Date Filed: 06/30/2014

Page: 37

application note cannot trump plain statutory language. See Dorsey v. United States, 132
S. Ct. 2321, 2327 (2012).
My colleagues present the best argument I have seen for the proposition that
district courts may consider § 924(c) mandatory minimums when sentencing defendants
for underlying crimes.2 The plain language of the statute, however, compels me to
respectfully dissent.

2

I also agree with my colleagues in their resolution of Smith’s argument regarding
the admission of the firearm toolmark analysis. (See Majority Op. 30 n.13.)
-6-