United States v. Chavez, No. 05-4679-cr (2d Cir. December 8, 2008) (Kearse, Calabresi, Sack, CJJ)
Jaime Chavez was convicted after a jury trial of a drug conspiracy and a § 924(c) offense, and faced a 50-year mandatory minimum: due to a prior conviction there was a 20-year minimum on the drug charge; and, because the gun had a silencer, he faced a 30-year mandatory consecutive sentence for the gun. The guidelines recommended a minimum sentence of 60 years; 30 for the drugs plus 30 for the gun, and the district court sentenced him to 55 years.
Chavez had asked the court to shorten the sentence on the drug charge in light of the long sentence he faced for the gun, but the district court concluded that it could not lawfully do this. Rather, the court independently selected 25 years as the appropriate sentence for the drug conspiracy, then imposed the mandatory 30-year § 924(c) sentence.
On appeal, Chavez argued that the district court misunderstood its sentencing authority, but the circuit affirmed. It read § 924(c) as “plainly designed to impose penalties that are cumulative to the penalties imposed for other crimes.” Moreover, there is nothing in § 3553(a) that would give a district court the authority to reduce a sentence on one count in light of the penalties prescribed for another: “consideration of only the factors set out in § 3553(a) could lead the court to conclude that a shorter total sentence than the total specified for a § 924(c) conviction and recommended for the underlying crime would be appropriate.” Thus, a sentencing court must first determine the appropriate prison term for the count to which the § 924(c) count is to be consecutive, then impose the gun sentence. If the court reduces the prison term on the underlying count on the ground that the total sentence is too severe, it “conflates the two punishments and thwarts the will of Congress that the punishment imposed for violating § 924(c) be” additional and consecutive.
This decision is unconvincing. Several of the § 3553(a) factors arguably permit a sentencing court to consider the § 924(c) sentence in selecting an appropriate sentence on the underlying count: the “nature and circumstances of the offense”; the need for the sentence to reflect the “seriousness of the offense”; the “respect for the law” and “just punishment” provisions and the deterrence provisions all seem to cover this. Moreover, in a similarly structured statue, 18 U.S.C. § 1028A, which mandates a 2-year consecutive sentence for aggravated identity theft, Congress specifically directs that the sentencing court “shall not in any way reduce the term to be imposed” on the underlying offense “so as to compensate for, or otherwise take into account,” the § 1028A sentence. The absence of a similar instruction in § 924(c) would seem to suggest that the circuit got this one wrong. Finally, and in any event, under Kimbrough, district courts are clearly permitted to “thwart the will of Congress” in exercising their sentencing discretion.