Filed: Jan. 23, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4634 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSE ARMANDO BRAN, a/k/a Pantro, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:12-cr-00131-REP-1) Argued: September 19, 2014 Decided: January 22, 2015 Amended: January 23, 2015 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by published opinion. Jud
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4634 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSE ARMANDO BRAN, a/k/a Pantro, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:12-cr-00131-REP-1) Argued: September 19, 2014 Decided: January 22, 2015 Amended: January 23, 2015 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by published opinion. Judg..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4634
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE ARMANDO BRAN, a/k/a Pantro,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:12-cr-00131-REP-1)
Argued: September 19, 2014 Decided: January 22, 2015
Amended: January 23, 2015
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the majority
opinion, in which Judge Agee joined. Judge King wrote an
opinion dissenting in part.
ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente,
Acting United States Attorney, Alexandria, Virginia, Roderick C.
Young, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
SHEDD, Circuit Judge:
A federal jury convicted Jose Armando Bran of five criminal
counts relating to his involvement with the street gang La Mara
Salvatrucha, also known as MS-13. On appeal, Bran primarily
argues that the district court erred by denying his motion for
judgment of acquittal on Count 3 and by imposing a mandatory
consecutive sentence for his Count 3 conviction. For the
following reasons, we affirm.
I
Bran was convicted of conspiracy to commit murder in aid of
racketeering (Count 1); murder in aid of racketeering (Count 2);
use of a firearm during a crime of violence causing death to
another (Count 3); conspiracy to commit murder in aid of
racketeering (Count 4); and maiming in aid of racketeering
(Count 5). Counts 1, 2, and 3 arise from the murder of Osbin
Hernandez-Gonzalez. Counts 4 and 5 arise from the attempted
murder of Florintino Ayala. The district court sentenced Bran to
120 months for Count 1, mandatory life for Count 2, 120 months
for Count 4, and 360 months for Count 5, all to run
concurrently, and life for Count 3, to run consecutively to the
sentences for Counts 1, 2, 4, and 5.
Generally, the government presented evidence at trial
tending to establish that Bran was the leader of the Richmond
Sailors Set, which is a violent clique of MS-13. During Bran’s
2
involvement with the Sailors Set, the clique was a criminal
enterprise engaged in drug trafficking, money transfers to MS-13
leadership in El Salvador, witness tampering, violent physical
assaults – including the attempted murder of Ayala and the
murder of Hernandez-Gonzalez – and other racketeering
activities.
Bran’s principal argument relates to his conviction and
sentence on Count 3. In Count 3, the government charged Bran
with violating three criminal statutes: 18 U.S.C. §
924(c)(1)(A), 18 U.S.C. § 924(j)(1), and 18 U.S.C. § 2. Section
924(c)(1)(A) “prohibits the use or carrying of a firearm in
relation to a crime of violence or drug trafficking crime, or
the possession of a firearm in furtherance of such crimes,” and
a violation of the statute “carries a mandatory minimum term of
five years’ imprisonment,” United States v. O’Brien, 560 U.S.
218, 221 (2010), which must run consecutively to any other
sentence, Abbott v. United States,
562 U.S. 8, 23 (2010).
Section 924(j)(1) provides that a person who causes the murder
of another through the use of a firearm in the course of
committing a violation of § 924(c) shall “be punished by death
or by imprisonment for any term of years or for life.” Section
2 provides that a person “is punishable as a principal” if the
person: (a) “aids, abets, counsels, commands, induces or
procures” the commission of a criminal offense; or (b)
3
“willfully causes an act to be done which if directly performed
by him or another” would be a criminal offense.
Pertinent to Count 3, the government presented evidence
tending to establish that in July 2011, Bran ordered prospective
MS-13 members Jeremy Soto and Luis Cabello to murder Hernandez-
Gonzalez, whom Bran believed to be an informant for a rival
gang. Bran further instructed Michael Arevalo, another Sailors
Set member, to ensure Soto and Cabello successfully killed
Hernandez-Gonzalez. Bran gave Soto and Cabello a firearm to
commit the murder. Pursuant to Bran’s order, Arevalo, Soto, and
Cabello led Hernandez-Gonzalez to a path along the James River,
where they shot him four times using Arevalo’s firearm, stole
his cellphone, and left him to die which he did soon thereafter.
Soto and Cabello were later initiated into Sailors Set for their
participation in the murder.
Regarding Count 3, the district court instructed the jury
that the government had to prove three elements beyond a
reasonable doubt: (1) that Bran aided and abetted the murder of
Hernandez-Gonzalez; (2) that during and in relation to
commission of the murder, Bran knowingly aided or abetted the
use, carriage, or discharge of a firearm; and (3) that the
firearm caused the death of Hernandez-Gonzalez. The court
further instructed the jury that Bran could be convicted on
4
Count 3 under the theory of aiding and abetting. Bran did not
object to the jury instructions.
On the verdict form, the district court titled Count 3 “Use
of a Firearm During a Crime of Violence Causing Death to
Another.” J.A. 1311. The court instructed the jury to return a
general verdict on Count 3 and, if the jury determined Bran was
guilty, to then answer a three-part special interrogatory. The
interrogatory asked the jury to state whether Bran aided,
abetted, counseled, commanded, induced, or caused another to:
(1) use a firearm during and in relation to a crime of violence;
(2) carry a firearm during and in relation to a crime of
violence; and/or (3) cause a firearm to be discharged during and
in relation to a crime of violence. The court instructed the
jury that in answering the interrogatory, it should check which
fact or facts, if any, it unanimously found the government
proved beyond a reasonable doubt. Bran did not object to the
verdict form or the instructions by the court.
The jury returned guilty verdicts on all counts. As to
Count 3, the jury returned a general verdict of guilty and
answered in response to the special interrogatory that Bran
aided, abetted, counseled, commanded, induced, or caused another
to cause a firearm to be discharged during and in relation to a
crime of violence. Because the jury did not find that Bran aided
or abetted another to use or carry a firearm during and in
5
relation to a crime of violence, the district court convened
counsel upon receipt of the verdict to discuss the implications
of the jury’s answer to the special interrogatory. Ultimately,
all parties agreed that it would be inappropriate to ask the
jury any further questions about the verdict and to “go with the
verdict form as it is.” J.A. 1299.
Bran thereafter moved for judgment of acquittal arguing,
among other things, that the jury’s failure to specifically find
“use” of a firearm amounts to an acquittal on the § 924(j)
offense. The district court denied the motion. At sentencing,
the court imposed a life sentence for Count 3. Over Bran’s
objection, the court determined that § 924(c)(1)(A)(iii)
mandates that the § 924(j) life sentence run consecutively to
the sentences imposed for Counts 1, 2, 4 and 5.
II
As we have noted, Bran’s main arguments on appeal relate to
Count 3. Specifically, he contends that the jury verdict is
insufficient to support a conviction under § 924(j) and,
therefore, the district court erred in denying his motion for
judgment of acquittal. Further, he argues that the court erred
in interpreting § 924(j) to require a mandatory consecutive
sentence.
6
A.
Bran couches his challenge to his conviction under § 924(j) 1
as a challenge to the sufficiency of the evidence. We review a
challenge to the sufficiency of the evidence de novo, United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), and we must
sustain the verdict if there is substantial evidence, viewed in
the light most favorable to the government, to support it, Burks
v. United States,
437 U.S. 1, 17 (1978). Substantial evidence is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.
Alerre, 430 F.3d at 693. A
defendant bringing a sufficiency challenge “must overcome a
heavy burden,” United States v. Hoyte,
51 F.3d 1239, 1245 (4th
Cir. 1995), and reversal for insufficiency must “be confined to
cases where the prosecution’s failure is clear,”
Burks, 437 U.S.
at 17.
1
The appeal in this case was, at the very least, muddled.
Throughout his appeal, Bran argued he had been convicted under §
924(c), until his rebuttal at oral argument when he argued for
the first time his conviction was under § 924(j). The government
appeared to argue in its brief that Bran had been convicted of
both a violation of § 924(c) and § 924(j). However, at oral
argument the government stated that Bran had been convicted only
under § 924(j). Nevertheless, by the end of oral argument, both
sides agreed with the district court that Bran had been
convicted, if at all, under § 924(j).
7
In order to prove a violation of § 924(j), the government
must prove: “(1) the use of a firearm to cause the death of a
person and (2) the commission of a § 924(c) violation.” United
States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001). A
defendant can be convicted for aiding and abetting a § 924(j)
violation. See United States v. Foster,
507 F.3d 233, 246 (4th
Cir. 2007).
We hold that the evidence is clearly sufficient to support
Bran’s conviction under § 924(j). The jury was presented with
substantial evidence from which to find that Bran aided and
abetted the murder of Hernandez-Gonzalez through the use of a
firearm. As noted, the government presented evidence that Bran
commanded Soto and Cabello to murder Hernandez-Gonzalez, and he
provided them with a firearm to commit the murder. 2 Bran also
directed Arevalo to ensure the murder was successful.
Despite the fact that Bran generally characterizes the
challenge to his conviction under § 924(j) as a challenge to the
sufficiency of the evidence, his specific argument focuses more
narrowly on the jury verdict form and the effect of the special
interrogatory answer. Bran does not seriously contend that the
government failed to present adequate evidence for the jury to
2
When Soto and Cabello were carrying out Bran’s
instruction, this gun misfired, so they used Arevalo’s gun to
carry out Bran’s command to murder Hernandez-Gonzalez.
8
convict him under § 924(j). Rather, he claims that the jury
actually acquitted him of the § 924(j) charge when it did not
check the box that corresponded to the fact that Bran aided or
abetted the use of a firearm on the special interrogatory. We
disagree.
As an initial matter, Bran’s argument ignores the jury’s
general verdict of guilt on Count 3. Without objection, the
district court sufficiently instructed the jury as to the
elements required to sustain a conviction under § 924(j) and the
law of aiding and abetting under § 2. With those instructions,
the jury found Bran guilty of aiding and abetting the “Use of a
Firearm During a Crime of Violence Causing Death to Another.”
While the jury’s general guilty verdict alone is sufficient
to uphold Bran’s § 924(j) conviction, the jury’s special finding
regarding “caused a firearm to be discharged” further supports
the § 924(j) conviction. In the context of the evidence
presented at trial, the jury’s finding of “caused a firearm to
be discharged” necessarily includes a finding of “use of a
firearm.” See Smith v. United States, 508 U.S. 223, 240 (1993)
(broadly defining “use” of a firearm for purposes of § 924(c)).
9
For the foregoing reasons, we affirm Bran’s Count 3
conviction. 3
B.
Bran also argues that even if we affirm his § 924(j)
conviction, the district court erred by treating his sentence
for Count 3 as a mandatory consecutive sentence. We review this
issue de novo. United States v. Lighty, 616 F.3d 321, 370 (4th
Cir. 2010).
All but one circuit court to consider this issue have held
that a sentence imposed for a violation of § 924(j) must run
consecutively to other sentences because Congress intended that
punishment imposed for a § 924(j) violation be subject to the
consecutive sentence mandate of § 924(c). 4 See United States v.
Berrios, 676 F.3d 118, 143 (3d Cir. 2012) (“[B]ecause a § 924(j)
sentence is imposed on a defendant for violating subsection (c),
3
Bran also argues that the district court erred by denying
his motion for judgment of acquittal as to each count of
conviction because the evidence is insufficient to support a
finding that he was involved in an enterprise engaged in
racketeering activity. We hold that the evidence is more than
sufficient for the jury to convict on all counts. Bran further
contends that the court erred in denying his motion to exclude
the government’s expert testimony regarding the criminal street
gang MS-13. We hold that the court did not abuse its discretion
in admitting the expert testimony. See United States v. Wilson,
484 F.3d 267, 273 (4th Cir. 2007) (noting abuse of discretion
standard).
4
While these circuits may have differed in their view of §
924(j), they all agree on this point.
10
such a sentence is ‘imposed under’ subsection (c).”); United
States v. Battle, 289 F.3d 661, 666 (10th Cir. 2002) (“The plain
meaning of the words used in § 924(j) unequivocally provide that
if the evidence shows a violation of § 924(c) . . ., a district
court must impose a consecutive sentence over and above the
punishment prescribed for the violent crime.”); United States v.
Allen,
247 F.3d 741, 769 (8th Cir. 2001) (“Although § 924(j)
does not explicitly contain the same express mandatory
cumulative punishment language as found in § 924(c), it
incorporates § 924(c) by reference without disclaiming the
cumulative punishment scheme which is so clearly set out in §
924(c).”), vacated on other grounds,
536 U.S. 953 (2002); see
also United States v. Young, 561 F. App’x 85, 94 (2d Cir. 2014)
(holding that § 924(j) “incorporates the penalty enhancements of
§ 924(c)”), cert. denied,
135 S. Ct. 387 (2014), and sub nom.
Chambliss v. United States,
135 S. Ct. 388 (2014).
Only the Eleventh Circuit has held to the contrary. United
States v. Julian, 633 F.3d 1250, 1253 (11th Cir. 2011). Bran
argues that we should follow Julian, which held that a district
court has discretion to decide whether to impose a concurrent or
consecutive sentence for a § 924(j) violation.
Julian, 633 F.3d
at 1253–56. We find the Eleventh Circuit’s reasoning
unpersuasive.
11
When interpreting a statute, we apply its plain language,
unless the result would be absurd. Lamie v. United States Tr.,
540 U.S. 526, 534 (2004). We also consider the specific context
in which that language is used, and the broader context of the
statute as a whole. Robinson v. Shell Oil Co.,
519 U.S. 337, 341
(1997). Here, the plain language of § 924(j) does not expressly
answer the question of whether any term of imprisonment imposed
thereunder must be consecutive. However, the language itself
suggests that such a sentence must be consecutive, and to read §
924(j) otherwise would create an absurd result.
Section 924(j)(1) reads: “A person who, in the course of a
violation of subsection (c), causes the death of a person
through the use of a firearm, shall – (1) if the killing is a
murder . . . be punished by death 5 or by imprisonment for any
term of years or for life.” (emphasis added). At a minimum, the
inclusion of the language “in the course of a violation of
subsection (c)” indicates that § 924(c) plays a role in a §
924(j) offense and, to understand that role, we must consider §
924(j) in the context of § 924(c).
Section 924(c) sets out the elements required to violate
that section. Additionally, § 924(c) sets out the nature of the
5
The government did not seek the death penalty in this
case.
12
punishment thereunder; such punishment must be consecutive. 18
U.S.C. § 924(c)(1)(D)(ii). No one, including Bran, contests
those points. Viewed in this light, “[i]t takes no special
insight or leap of logic to conclude that the central reason for
Congress’s choice of language in writing [§ 924(j)] – ‘during
the course of a violation of [§ 924(c)]’ – was to ensure that
separating out subsection (j) from subsection (c) did not
deprive the law of a coherent sentencing scheme, the heart of
which is the consecutive sentence mandate.” Berrios, 676 F.3d at
141.
Further, because of the inclusion of the § 924(c) language,
to prove a violation of § 924(j), the government must prove that
a defendant also committed a violation of § 924(c). See United
States v. Smith, 452 F.3d 323, 335–36 (4th Cir. 2006).
Accordingly, a defendant who violates § 924(j) by definition
violates § 924(c), and would necessarily face a mandatory
consecutive sentence under § 924(c) if it had been charged as a
freestanding offense. Therefore, to read § 924(j) as not subject
to the consecutive sentence mandate of § 924(c) would mean that
a defendant convicted under § 924(j) would face a more lenient
sentencing scheme – under which a defendant’s sentence would not
have to be consecutive – simply because, in the course of
violating § 924(c), he murdered someone. To read § 924(j) in
this way would give rise to a truly absurd result with perverse
13
incentives; a defendant facing life or a term of years could
create a more favorable sentencing environment for himself by
committing a murder during his commission of the § 924(c)
offense. See Berrios, 676 F.3d at 141;
Battle, 289 F.3d at 668;
Allen, 247 F.3d at 769. It is “highly ‘unlikely that Congress,
which clearly intended to impose additional cumulative
punishments for using firearms during violent crimes in cases
where no murder occurs, would turn around and not intend to
impose cumulative punishments in cases where there are actual
murder victims.’”
Berrios, 676 F.3d at 141 (quoting
Battle, 289
F.3d at 668); see also
Allen, 247 F.3d at 769. 6
III
For the foregoing reasons, we affirm the judgments of
conviction and sentence.
AFFIRMED
6
Of course, Congress could legislate that a sentence
imposed for a violation of § 924(j) need not be consecutive.
However, in the absence of clear language or context, we should
not presume they intended such an anomalous and absurd result.
See Berrios, 676 F.3d at 141 (“In light of the statutory scheme
and purpose shared by subsection (c) and subsection (j), we
simply cannot impute a contradictory intent to Congress without
some underlying rationale.”).
14
KING, Circuit Judge, dissenting in part:
Because the district court was entitled to sentence Bran on
Count III to something other than a mandatory consecutive life
sentence, I respectfully dissent. In affirming Bran’s sentence,
my friends in the majority rely on the erroneous conclusion that
18 U.S.C. § 924(c) requires a consecutive sentence on Bran’s
§ 924(j) conviction. As explained below, nothing in either
§ 924(c) or § 924(j) mandates such a ruling. I would therefore
vacate Bran’s sentence on Count III and remand.
The relationship between § 924(c) and § 924(j) is not
insignificant — each criminalizes a firearm offense occurring
during the commission of a crime of violence or a drug
trafficking offense. Notwithstanding those two shared elements,
§ 924(j) has a third and independent element (conduct causing
death). The penalty provisions of § 924(c) and § 924(j) are
also distinct. Of importance in that regard, a sentence under
§ 924(c) must run consecutively to any other sentence. See 18
U.S.C. § 924(c)(1)(D)(ii) (the “consecutive sentence mandate”).
The consecutive sentence mandate applies, however, to § 924(c)
offenses only, as stated therein: “no term of imprisonment
imposed on a person under this subsection shall run concurrently
with any other term of imprisonment imposed on the person.” Id.
(emphasis added); see United States v. Julian,
633 F.3d 1250,
15
1253 (11th Cir. 2011) (ruling that consecutive sentence mandate
not applicable to § 924(j) offense).
It is now undisputed that, on Count III, Bran was convicted
of violating § 924(j), an offense resulting in death “in the
course of” a § 924(c) violation. 18 U.S.C. § 924(j). 1 The
alternative punishments authorized by § 924(j) — death, life, or
a term of years — do not refer to the consecutive sentence
mandate. See id. 2 Because a § 924(j) offense occurs in the
course of a § 924(c) violation, however, the majority rules that
the consecutive sentence mandate must be applied to a § 924(j)
1
Prior to oral argument, Bran and the prosecution disagreed
over whether Bran had been convicted of a § 924(c) offense or a
§ 924(j) offense. That issue traced to the duplicitous
indictment in this case, which alleged § 924(c) and § 924(j)
offenses in a single count — Count III. In briefing, Bran
challenged his Count III conviction on the ground that the jury
had acquitted him of the § 924(j) offense and convicted him of
violating § 924(c) only. At oral argument, Bran abandoned that
position and agreed that he was convicted under § 924(j).
2
Pursuant to § 924(j) of Title 18:
A person who, in the course of a violation of
subsection (c), causes the death of a person through
the use of a firearm, shall —
(1) if the killing is a murder (as defined in [18
U.S.C. §] 1111), be punished by death or by
imprisonment for any term of years or for life.
(2) if the killing is manslaughter (as defined in
[18 U.S.C. §] 1112), be punished as provided in that
section.
18 U.S.C. § 924(j).
16
offense to avoid an “absurd result.” Ante at 12. The majority
relates that a defendant convicted under § 924(j) would
otherwise “face a more lenient sentencing scheme” than one
convicted under § 924(c). Id. at 13. For reasons I view as
compelling, I reject the majority’s ruling.
1.
First, a § 924(j) offense is discrete from a § 924(c)
offense, and must be treated accordingly. As we recognized
years ago, a § 924(j) offense is a separate violation of federal
law. See United States v. Johnson (Shaheem), 219 F.3d 349 (4th
Cir. 2000). Judge Luttig’s opinion for the Court in that case
spelled out the elements of a § 924(j) offense: “(1) a drug
trafficking crime committed, (2) the use of a firearm during the
commission of the trafficking crime, and (3) malice aforethought
in causing the death of the victim in relation to the commission
of the crime.”
Id. at 358 n.7. Soon thereafter, in United
States v. Robinson, Judge Wilkins’s opinion treated a § 924(j)
violation in a like manner. See
275 F.3d 371, 379 (4th Cir.
2001).
Nevertheless, the majority argues that its ruling today —
that the consecutive sentencing mandate applies to a § 924(j)
offense — garners support from four of our sister circuits.
Those decisions, however, analyzed the relationship between
§ 924(c) and § 924(j) in a fundamentally different manner than
17
does the majority. Two of those courts ruled that § 924(j) is a
sentencing factor only, and not a separate offense. See United
States v. Battle, 289 F.2d 661, 667 (10th Cir. 2002) (“Section
924(j) does not set forth a discrete crime.”); United States v.
Allen,
247 F.3d 741, 769 (8th Cir. 2001) (concluding that
Ҥ 924(j) is fairly interpreted as an additional aggravating
punishment for the scheme already set out in § 924(c)”). Two
other courts of appeals failed to definitively resolve the
discrete offense issue. See United States v. Berrios,
676 F.3d
118, 140 (3d Cir. 2012) (“Although the government concedes that
§ 924(j) establishes a discrete crime from § 924(c), this has no
bearing on our decision.”); see also United States v. Young, 561
F. App’x 85, 94 (2d Cir. 2014) (unpublished) (observing that
§ 924(j) “likely indicates that it is a stand-alone offense”),
cert. denied,
135 S. Ct. 387 (2014).
My position in this regard is simple. I would apply the
reasoning of the Eleventh Circuit in Julian, which is consistent
with our decisions in Johnson (Shaheem) and Robinson. See 633
F.3d at 1254. That is, § 924(j) constitutes a discrete offense
from § 924(c), and thus can only be punished under § 924(j).
2.
The foregoing discussion leads to my second point: Because
§ 924(j) is a discrete offense from a § 924(c) violation, a
sentence under § 924(j) does not produce an absurd result. And,
18
absent an express statutory mandate to the contrary, a federal
criminal offense does not require either a concurrent or a
consecutive sentence. That decision with respect to sentencing
is reserved to the discretion of the district court. See 18
U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed at the
same time run concurrently unless the court orders or the
statute mandates that the terms are to run consecutively.”); see
also United States v. Johnson (Keith), 138 F.3d 115, 119 (4th
Cir. 1998) (determining that § 3584(a) “gives district courts
discretion in choosing concurrent or consecutive terms of
imprisonment”). Nonetheless, the majority cites the Supreme
Court as foreclosing application of the plain text of § 924(j).
Ante at 12 (citing Lamie v. United States Trustee,
540 U.S. 526
(2004)). In its Lamie decision, however, the Court carefully
emphasized that “[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.’”
Lamie, 540
U.S. at 534 (quoting Hartford Underwriters Ins. Co. v. Union
Planters Bank, N.A.,
530 U.S. 1, 6 (2000)). Because § 924(j)
does not require a particular disposition, we should simply
enforce its plain terms.
In any event, applying the plain terms of § 924(j) does not
produce an absurd result. As the government conceded at oral
19
argument, the potential availability of a death penalty is the
reason a prosecutor would pursue a charge under § 924(j). See
Julian, 633 F.3d at 1256 (“The main point of section 924(j) is
to extend the death penalty to second-degree murders that occur
in the course of violations of section 924(c).”). To me, it
defies common sense to contend that a death sentence for a
§ 924(j) offense creates a more lenient sentencing scheme than a
non-death sentence under § 924(c). 3 Similarly, I readily reject
the majority’s contention that § 924(j) creates “perverse
incentives” for an aspiring criminal. Ante at 13-14. To the
contrary, a person contemplating commission of a § 924(c)
offense is not likely to commit murder merely to avoid the
consecutive sentence mandate.
On this record, we are obliged to presume that Congress
properly assessed each of the foregoing considerations when it
enacted § 924(j). See Russello v. United States, 464 U.S. 16,
23 (1983) (“Where Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”)
3
I note that the death penalty is potentially available
under § 924(c)(5) for causing death by use of armor piercing
ammunition. See 18 U.S.C. § 924(c)(5)(B)(i). Bran, however,
was not charged with any such offense.
20
(brackets omitted). Rather than second-guess Congress and
judicially amend § 924(j) to include the consecutive sentence
mandate, I would simply rule that § 924(j) — rather than
§ 924(c) — controls Bran’s sentence for the § 924 offense in
Count III.
Pursuant to the foregoing, I would vacate Bran’s
consecutive life sentence on Count III and remand. The
sentencing court should be entitled to exercise its informed
discretion, pursuant to 18 U.S.C. § 3584, to impose a sentence
on Count III that is either consecutive or concurrent.
I respectfully dissent.
21
