Off-Whitley

United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)

Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except “to the extent that a greater minimum sentence is otherwise provided by … any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir. 2008), the defendant received a fifteen-year mandatory minimum under the Armed Career Criminal Act, and a five-year consecutive 924(c) sentence. The court held that the “except” clause exempted the defendant from the 924(c) sentence, since he was subject to a greater minimum on the ACCA count. Whitley left open whether the “except” clause applied to non-firearms offenses. Here, a different panel, following Whitley, answered that question with a resounding “yes.”

The government made largely the same arguments it made in Whitley, and the court again rejected them. First, it held that the statutory text supported Williams. The phrase “any other provision of law” includes all crimes that carry a mandatory minimum sentence, as long as the firearm was possessed in connection with a predicate offense arising from “the same criminal transaction or operative set of facts.”

Nor does this interpretation produce “anomalous sentencing results.” Exempting the defendant from the 924(c) sentence in some cases does not mean that he will necessarily get a lower sentence than Congress prescribed. A court could, as a matter of discretion, impose the same sentence on the predicate that the defendant would have received if he had been subject to both the predicate and the 924(c) sentences.