Instant Analysis: Oral Arguments in Abbot & Gould v. United States

October 4th, 2010

Abbot v. United States,and Gould v. United States (consolidated) was argued today, and the transcripts are here. These cases consider:

From Abbot: (1) Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction?

From Gould: Does a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) apply to a count when another count already carries a greater mandatory minimum sentence?

Counsel for Gould(Mr. Horan)

Justice Scalia repeatedly asked Mr. Horan, who represented Abbot, whether the enhancement would apply if the predicate offense was charged in another indictment. Horan said it would it would not, but it would apply in the same indictment.

Perhaps the best quote came from Justice Scalia who referred to a Career Offender as a “Three-Time Violent Crime Loser.”

So let’s suppose somebody commits a rape and a maiming in the same criminal act. You are saying that the prosecution — and let’s assume it’s his third. It’s his third violent crime. So he would get the enhancement as being, you know, a three-time violent crime loser.
Scalia later referred to the career criminal enhancement as the “three-time loser enhancement.”
He can get it if the prosecution charges rape in one prosecution, for which he will get the three-time loser enhancement, and then in a separate prosecution, it charges maiming and the use of a firearm. Then he gets both enhancements, right?
Curiously Chief Justice Roberts did not ask any questions in this case.

Counsel for Abbot (Mr. Ryan)

Abbot repeated what Gould argued, noting that the Government’s reading of the case “leaves one half of the effect clause with absolutely no practical effect.” Abbot concurs with Gould, that the “except clause should be limited to sentences for the same transaction.”

Justice Alito inquired how Abbot defined a criminal “transaction.” Justice Scalia also inquired, again, about prosecutorial discretion, and whether the prosecutor brings the charge in separate cases.

Counsel for the United States

The United States explained the statute thusly:

I think that the “except clause is triggered by an offense which has a greater mandatory minimum and which has the same elements as and is the same offense as a section 924(c) offense.

The United States argued that for each 924 violation, Judges can impose one mandatory sentence.

The “except” clause operates internally to section 924(c) to tell the district court judge, very helpfully in light of the complexity of the provision: You impose one mandatory minimum sentence for each 924(c) violation, whether  aggravated or less aggravated.

Chief Justice Roberts didn’t buy this argument, contending that a District Court Judge would not need such hand-holding:

I can’t imagine a single district judge getting that wrong. To think that, oh, my gosh, here it says 10 years if you discharge the firearms and here it says 5 years if you have one, which one do I use in a case when it’s discharged? You don’t need this provision. Your argument can’t be that this language is to make sure the district judge knows in that case to use the 10-year rather than the 5-year?

The United States also had a somewhat-less-than-charitable-view of the attentiveness of District Court judges:

I agree with that, but it’s important to realize that another issue that a district court judge might confront is whether you should cumulate them so it should be, as Justice Sotomayor’s question suggests, that if there are several available that you get 20 because it’s a machine gun and 9 because it was discharged. And from the perspective of busy district court judges, a provision which says in figuring out how to sentence a 924(c) offender, you don’t have to look through this complex statute to figure out what your sentencing enhancements, do some double jeopardy analysis, all you need to do is simple math. You are directed to look to, of all the ones that are available, the one that is longest of the mandatory minimums.

Justice Scalia seems to reject this rationale:

That’s the only thing it covers, that tiny little thing which has no effect at all, except for the benefit of the busy district judges, you say. I — I find that quite implausible.

There was also a little bit of discussion about the rule of lenity, a perennial favorite in all cases governing statutory interpretation that applies except when it doesn’t apply:

JUSTICE GINSBURG: How do you answer Mr. Ryan’s argument that you can read it this way, you can read it that way; therefore, he wins under the rule of lenity?

MR. MCLEESE: Well, this Court’s cases make it clear that the rule of lenity comes into play at the end of the analysis only if there is grievous ambiguity after all the considerations of statutory construction have been considered. We haven’t yet discussed all of them and I think when all of them are discussed, there is no grievous ambiguity. In fact, the reading that we suggest is the only reasonable reading, all factors considered.

CHIEF JUSTICE ROBERTS: But that’s a difficult — you are saying because Congress wanted to get tough on the people that use firearms in this provision, every ambiguous clause should be read in a way that makes it tougher on the criminal defendant?

MR. MCLEESE: I don’t — that would push the argument too far. I think it is highly relevant to construing this — the statute as a whole, that that was the clear overall function of that amendment.

There was also a little discussion on legislative history, and of course, Justice Scalia got a dig in.

CHIEF JUSTICE ROBERTS: Is there any evidence in the legislative history that the reason they put this in was to ensure that people who got life would not get life plus five years?

MR. MCLEESE: There is no explicit reference to that. But that is, I think, a good inference from the fact that all of the other explanations are far more implausible. And there is something — there are two things which support that inference more specifically,one of which is, again, that Congress did have in front of it section 3559(c) and was amending it. The second is that the sole reference anywhere in the legislative history to the except clause is in the testimony of a witness at a hearing, and what that witness said about it was that it will prevent confusion with other provisions. And so there is, I think, a strong indication —

JUSTICE SCALIA: One witness at a hearing? At a hearing? And you really think that the rest of the Congress knew about that hearing?

Justice Alito asked many questions of Petitioners, and Justice Roberts asked many probing questions of Respondent. Justices Scalia, Sotomayor, Ginsburg asked questions of both parties. Surprisingly, Justice Kennedy did not ask a single question during this transcript. Justice Thomas was mum, as usual.