ABBOTT v. UNITED STATES

OPINION OF THE COURT
ABBOTT V. UNITED STATES
562 U. S. ____ (2010)

SUPREME COURT OF THE UNITED STATES
NOS. 09-479 AND 09-7073

KEVIN ABBOTT, PETITIONER

09–479   v.

UNITED STATES

on writ of certiorari to the united states court of appeals for the third circuit

CARLOS RASHAD GOULD, PETITIONER

09–7073   v.

UNITED STATES

on writ of certiorari to the united states court of appeals for the fifth circuit

[November 15, 2010]

   Justice Ginsburg delivered the opinion of the Court.

   As one of several measures to punish gun possession by persons engaged in crime, Congress made it a discrete offense to use, carry, or possess a deadly weapon in connection with “any crime of violence or drug trafficking crime.” 18 U. S. C. §924(c)(1). The minimum prison term for the offense described in §924(c) is five years, §924(c)(1)(A)(i), in addition to “any other term of imprisonment imposed on the [offender],” §924(c)(1)(D)(ii). The two consolidated cases before us call for interpretation of §924(c) as that provision was reformulated in 1998.

   Kevin Abbott and Carlos Rashad Gould, petitioners here, defendants below, were charged with multiple drug and firearm offenses; charges on which they were convicted included violation of §924(c). Each objected to the imposition of any additional prison time for his §924(c) conviction. Their objections rested on the “except” clause now prefacing §924(c)(1)(A). Under that clause, a minimum term of five years shall be imposed as a consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by [§924(c) itself] or by any other provision of law.”

   Abbott and Gould read §924(c)’s “except” clause to secure them against prison time for their §924(c) convictions. They claim exemption from punishment under §924(c) because they were sentenced to greater mandatory minimum prison terms for convictions on other counts charging different offenses. The “except” clause, they urge, ensures that §924(c) offenders will serve at least five years in prison. If conviction on a different count yields a mandatory sentence exceeding five years, they maintain, the statutory requirement is satisfied and the penalty specified for the §924(c) violation becomes inoperative.

   The courts below, agreeing with the Government’s construction of the statute, read §924(c)(1) as independently requiring a sentence of at least five years, tacked onto any other sentence the defendant receives. The “except” clause refers to “a greater minimum sentence … otherwise provided.” “[O]therwise provided” for what, the courts below asked; their answer, for conduct offending §924(c), i.e., possessing a firearm in connection with a crime of violence or drug-trafficking crime.

   A defendant is not spared from a separate, consecutive sentence for a §924(c) conviction, the lower courts determined, whenever he faces a higher mandatory minimum for a different count of conviction. Instead, according to the courts below and the Government here, the “except” clause applies only when another provision—whether contained within or placed outside §924(c)—commands a longer term for conduct violating §924(c). For example, the mandatory minimum sentence for a §924(c) offense is five years, but if the firearm is brandished, the minimum rises to seven years, and if the firearm is discharged, to ten years. §924(c)(1)(A)(i), (ii), (iii). A defendant who possessed, brandished, and discharged a firearm in violation of §924(c) would thus face a mandatory minimum term of ten years.

   We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a §924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the “except” clause as we comprehend it, a §924(c) offender is not subject to stacked sentences for violating §924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.

I

   Abbott and Gould, defendants in unrelated prosecutions, were each charged with violating §924(c)(1)(A)(i) by possessing a firearm in furtherance of a drug-trafficking crime. Abbott’s case was tried to a jury in the Eastern District of Pennsylvania, which convicted him on the §924(c) count and three others: two predicate trafficking counts, 21 U. S. C. §§841, 846, and being a felon in possession of a firearm, 18 U. S. C. §922(g). Given Abbott’s extensive criminal history, his felon-in-possession conviction triggered a 15-year mandatory minimum under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e). The District Court sentenced Abbott to the 15 years mandated by ACCA, and to an additional five years for the §924(c) violation, yielding a total prison term of 20 years.[Footnote 1]

   Gould’s indictment listed seven separate drug and firearm charges. In return for Gould’s agreement to plead guilty, the Government dropped all but two: one §924(c) offense and one predicate drug-trafficking crime. The latter, for conspiracy to possess with intent to distribute cocaine base, carried a ten-year mandatory minimum under §841(b)(1)(A). Firearm involvement was not an element of that offense. The United States District Court for the Northern District of Texas imposed a sentence of 11 years and 5 months for the trafficking offense and an additional five years for the §924(c) violation, for a total of 16 years and 5 months.

   On appeal, Abbott and Gould challenged the five-year consecutive sentence each received under §924(c). Abbott urged that ACCA’s 15-year mandatory minimum triggered §924(c)’s “except” clause, because ACCA qualified as “[an]other provision of law” that “provided” a “greater minimum sentence.” Gould said the same of the ten years commanded by his predicate trafficking crime.

   The United States Court of Appeals for the Third Circuit affirmed Abbott’s sentence, concluding that the “except” clause “refers only to other minimum sentences that may be imposed for violations of §924(c).” United States v. Abbott, 574 F. 3d 203, 208 (2009). Gould fared no better before the Fifth Circuit. United States v. Gould, 329 Fed. Appx. 569, 570 (2009) (per curiam). That court’s precedent already confined the exception to conduct offending §924(c). United States v. London, 568 F. 3d 553, 564 (2009). To resolve the division among the Circuits on the proper construction of §924(c)’s “except” clause,[Footnote 2] we granted certiorari in both cases and consolidated them for argument. 559 U. S. ___ (2010).

II

A

   Congress enacted 18 U. S. C. §924(c) as part of the Gun Control Act of 1968, 82 Stat. 1213. The “except” clause, which did not appear in §924(c) as originally composed, was introduced by statutory amendment in 1998. See An Act [t]o throttle criminal use of guns, 112 Stat. 3469. We begin by setting out §924(c), first as it read before 1998, then as amended that year.

   The earlier version read in relevant part:

“Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) … , uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release. Notwithstanding any other provision of law, … the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.” §924(c)(1) (1994 ed.).

If this pre-1998 text governed, all agree, separate counts of conviction would have no preemptive force, and Abbott and Gould would have been correctly sentenced under §924(c). The question we confront is whether Congress’ 1998 reformulation of §924(c) rendered the sentences imposed on Abbott and Gould excessive.

   The 1998 alteration responded primarily to our decision in Bailey v. United States, 516 U. S. 137 (1995). In proscribing “use” of a firearm, Bailey held, §924(c)(1) did not reach “mere possession” of the weapon. Id., at 144. Congress legislated a different result; in the 1998 revision, “colloquially known as the Bailey Fix Act,” the Legislature brought possession within the statute’s compass. United States v. O’Brien, 560 U. S. ___, ___ (2010) (slip op., at 14) (internal quotation marks omitted).

   In addition to the change prompted by Bailey, Congress increased the severity of §924(c) sentences in two other respects: The 1998 revision “changed what were once mandatory sentences into mandatory minimum sentences,” O’Brien, 560 U. S., at ___ (slip op., at 13); and it elevated the sentences for brandishing and discharging a firearm and for repeat offenses. Congress also restructured the provision, “divid[ing] what was once a lengthy principal sentence into separate subparagraphs.” Id., at ___ (slip op., at 7). And it added the prefatory “except” clause at issue in the cases now before us. As amended, §924(c)(1)(A) prescribes:

   “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

      “(i) be sentenced to a term of imprisonment of not less than 5 years;

      “(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

      “(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

   The 1998 reformulation, furthermore, removed to separate paragraphs the provisions commanding higher penalties for especially destructive weapons and “second or subsequent” offenses. See §924(c)(1)(B), (C).[Footnote 3] While leaving the penalties for highly destructive weapons unchanged, the revision raised the base punishment for “second or subsequent” offenses from 20 years to 25. Ibid. The reformulation also transferred the bar on concurrent sentences to §924(c)(1)(D)(ii):

   “[N]o term of imprisonment imposed on a person under this subsection shall 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.”

B

   The leading portion of the “except” clause, which now prefaces §924(c)(1)(A), refers to a “greater minimum sentence … otherwise provided by this subsection,” i.e., by §924(c) itself; the second segment of the clause refers to a greater minimum provided outside §924(c) “by any other provision of law.” Beyond debate, the latter instruction does not relieve a §924(c) offender of additional punishment “simply because a higher mandatory minimum sentence exists in the United States Code.” Brief for Petitioner in No. 09–479, p. 19 (hereinafter Abbott Brief). Were it otherwise, the statute’s ascending series of minimums, set out in §924(c)(1)(A)–(C), would have no work to do; the only possible §924(c) sentence would be the Code’s highest—life. The “except” clause, it is therefore undisputed, “has to have some understood referent to be intelligible.” United States v. Parker, 549 F. 3d 5, 11 (CA1 2008). What should that referent be? As we comprehend the clause, to determine whether a greater minimum sentence is “otherwise provided … by any other provision of law,” the key question one must ask is: otherwise provided for what? As earlier noted, see supra, at 3, most courts, in line with the courts below and the Government, have answered: for the conduct §924(c) proscribes, i.e., possessing a firearm in connection with a predicate crime.

   Abbott and Gould disagree and offer diverse readings. Gould principally would apply the “except” clause to preclude a §924(c) sentence whenever “any of a defendant’s counts of convictio[n] at sentencing” require a greater minimum sentence. Brief for Petitioner in No. 09–7073, p. 14 (hereinafter Gould Brief).

   In lieu of Gould’s position that any greater minimum sentence on a different count of conviction will do, Abbott advances a somewhat narrower “transactional approach.” Any sentence imposed on the defendant fits the bill, he urges, so long as the sentence was imposed “because of the criminal transaction that triggered §924(c) in the first place.” Abbott Brief 10. Accord United States v. Williams, 558 F. 3d 166, 171 (CA2 2009).

   Abbott also tenders an alternative construction: The minimum sentence “otherwise provided” must be for a firearm offense—for example, Abbott’s felon-in-possession charge—involving the same firearm that triggered §924(c).[Footnote 4] Conceding that this reading is “not commanded by the [statute’s] plain language,” Tr. of Oral Arg. 24, Abbott asserts that it advances §924(c)’s goal—to discourage bearing arms in furtherance of crime—while avoiding the imposition of “two consecutive mandatory minimum sentences for the single use of a single firearm,” Abbott Brief 47 (emphasis omitted).

   The three interpretations just described share a common premise. In adding the “except” clause in 1998, all three posit, Congress adopted a less aggressive mode of applying §924(c), one that significantly reduced the severity of the provision’s impact on defendants. Like the courts below, we regard this premise as implausible. As earlier observed, see supra, at 5–6, the pre-1998 version of §924(c) prescribed a discrete sentence—punishment to be imposed regardless of the sentence received for the predicate crime or any separate firearm conviction. Abbott and Gould think the “except” clause installed, instead, a modest scheme designed simply to ensure that all §924(c) offenders “serve at least 5 years in prison.” Gould Brief 5; see Abbott Brief 10. We doubt that Congress meant a prefatory clause, added in a bill dubbed “An Act [t]o throttle criminal use of guns,” to effect a departure so great from §924(c)’s longstanding thrust, i.e., its insistence that sentencing judges impose additional punishment for §924(c) violations.

   Were we to accept any of the readings proposed by Abbott or Gould, it bears emphasis, we would undercut that same bill’s primary objective: to expand §924(c)’s coverage to reach firearm possession. In 1999, more than half of those who violated §924(c) in connection with a drug-trafficking offense received a mandatory minimum of ten years or more for that trafficking offense. Letter from Glenn R. Schmitt, United States Sentencing Commission, to Supreme Court Library (Nov. 10, 2010) (available in Clerk of Court’s case file). Congress, however, imposed only a five-year minimum for firearm possession “in furtherance of” a drug offense. As construed by Abbott and Gould, the amendment to include firearm possession as a §924(c) offense would spare the most serious drug offenders from any discrete punishment for the very firearm activity the amendment targeted. “We are disinclined to say that what Congress imposed with one hand … it withdrew with the other … .” Logan v. United States, 552 U. S. 23, 35 (2007).

   Abbott’s and Gould’s proposed readings, moreover, would result in sentencing anomalies Congress surely did not intend. We note first that §924(c), as they construe it, would often impose no penalty at all for the conduct that provision makes independently criminal. Tr. of Oral Arg. 52. For example, an individual who sold enough drugs to receive a ten-year minimum sentence under §841(b)(1)(A) could, so far as §924(c) is concerned, possess or even brandish a gun without incurring any additional punishment.

   Stranger still, under the Abbott and Gould readings, the worst offenders would often secure the shortest sentences. Consider two defendants convicted of trafficking in cocaine. The first possesses 500 grams and is subject to a mandatory minimum of five years, §841(b)(1)(B); the second possesses five kilograms and is subject to a mandatory minimum of ten years, §841(b)(1)(A). Both brandish firearms, calling for a sentence of seven years under §924(c)(1)(A)(ii). The first defendant, under all readings, will spend at least 12 years in prison. The second defendant’s ten-year drug minimum, according to Abbott and Gould, triggers the “except” clause and wipes out that defendant’s §924(c) penalty; though the more culpable of the two, the second defendant’s minimum term would be just ten years. Brief for United States 40. Like the Third Circuit below, “[w]e are confident that Congress did not intend such a bizarre result.” 574 F. 3d, at 209.

   Abbott’s alternative construction, which homes in on other firearm offenses, gives rise to similar oddities. On this reading, Abbott’s 15-year ACCA sentence for being a felon-in-possession would preempt his five-year §924(c) sentence, and his minimum term would be 15 years, rather than 20.[Footnote 5] But if ACCA were not at issue, Abbott’s minimum term would be the same 15 years: his five- year §924(c) sentence on top of his ten-year drug sen- tence. Qualification as a career criminal would carry no consequence.

   Nor does Abbott’s second construction necessarily promote more equitable outcomes. Suppose, for example, that a career criminal sold drugs together with a first-time offender, and both brandished firearms in the process. The first-time offender, lacking a felon-in-possession conviction, would serve a seven-year §924(c) sentence on top of a ten-year drug sentence, for a total of 17 years. But the career criminal’s ACCA sentence would preempt the §924(c) sentence; he would serve only 15 years.

   Abbott and Gould respond that sentencing judges may take account of such anomalies and order appropriate adjustments. We observe first that no correction or avoidance appears possible for the anomaly that, while §924(c) “defines a standalone crime,” a §924(c) sentence would be wiped out by a wholly separate and independent conviction. United States v. Easter, 553 F. 3d 519, 526 (CA7 2009) (per curiam) (“A determination of guilt that yields no sentence is not a judgment of conviction at all.”). We do, however, agree that a judge exercising discretion under 18 U. S. C. §3553(a) “would [not] be required to sentence” a more culpable defendant to a lesser term; the judge could increase that defendant’s sentence for a predicate crime to make up for §924(c)’s failure to effect any enlargement of the time served. United States v. Whitley, 529 F. 3d 150, 155 (CA2 2008). But we doubt Congress had such a cure in mind in 1998, seven years before we held, in United States v. Booker, 543 U. S. 220 (2005), that district courts have discretion to depart from the Sentencing Guidelines on the basis of §3553(a).

   Abbott and Gould alternatively contend that Congress could have anticipated that the then-mandatory Guidelines would resolve disparities. See Abbott Brief 32–35; Gould Brief 30–32. On this view, the “except” clause ensures that a §924(c) offender incurs a minimum sentence of considerable length; the Guidelines would then control, elevating that sentence based on firearm possession or use. See United States Sentencing Commission, Guidelines Manual §§2D1.1(b)(1), 2K2.1(b)(5) (Nov. 1998) (increasing offense level for defendants who use or possess firearms in course of violent crime or drug trafficking); §§2D1.1(b)(1), 2K2.1(b)(6) (Nov. 2009) (same).

   We do not gainsay that Abbott and Gould project a rational, less harsh, mode of sentencing. But we do not think it was the mode Congress ordered. Congress expressly rejected an analogous scheme in 1984, when it amended §924(c) in the same law that created the Sentencing Commission and the Guidelines. Pub. L. 98–473, 98 Stat. 1987, 2138. Four years earlier, in Busic v. United States, 446 U. S. 398, 404 (1980), we had read §924(c) to impose no penalty when the predicate crime itself prescribed a firearm enhancement; similarly, Abbott and Gould now read §924(c) to impose no penalty when the Guidelines prescribe a firearm enhancement to the predicate sentence. The 1984 legislation “repudiated” Busic, clarifying that §924(c) applied even when the predicate crime already “provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device.” United States v. Gonzales, 520 U. S. 1, 10 (1997) (internal quotation marks omitted).

   Between 1984 and 1998, Congress expanded the reach or increased the severity of §924(c) on four occasions, never suggesting that a Guidelines firearm enhancement might suffice to accomplish §924(c)’s objective.[Footnote 6] Nor is there the slightest indication that Congress was contemplating the Guidelines’ relationship to §924(c) when it added the “except” clause in the 1998 amendments.[Footnote 7]

    The “except” clause, we note, would have been a most haphazard way to achieve a Guidelines-driven rollback of §924(c). If Congress wanted to ensure that §924(c) offenders “receive at least five years in prison,” and to rely on the Guidelines for the rest, Abbott Brief 10, there was an obvious solution: Congress could have excised all prescriptions ordering that §924(c) sentences shall run consecutively to other sentences. Without such a requirement, all defendants would benefit from a minimum-plus-Guidelines regime—not just the most culpable offenders. Congress did not adopt that obvious solution, we think, because it did not want the Guidelines to supplant §924(c).

C

   The Government’s reading of the “except” clause, we are convinced, makes far more sense than the interpretations urged by Abbott and Gould. In imposing a sentence for a §924(c) violation “[e]xcept to the extent that a greater minimum sentence is otherwise provided . . . by any other provision of law,” Congress meant:

“[I]f another provision of the United States Code mandates a punishment for using, carrying, or possessing a firearm in connection with a drug trafficking crime or crime of violence, and that minimum sentence is longer than the punishment applicable under §924(c), then the longer sentence applies.” Brief for United States 17.

   This reading gives effect to the statutory language commanding that all §924(c) offenders shall receive additional punishment for their violation of that provision, a command reiterated three times. First, the statute states that the punishment specified in §924(c)(1) “shall” be imposed “in addition to” the penalty for the predicate offense. §924(c)(1)(A). Second, after Busic, §924(c) demands a discrete punishment even if the predicate crime itself “provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device.” Ibid. Third, §924(c)(1)(D)(ii) rules out the possibility that a §924(c) sentence might “run concurrently with any other term of imprisonment.” We doubt that Congress, having retained this thrice-repeated instruction, would simultaneously provide an exception severely limiting application of the instruction. Cf. Greenlaw v. United States, 554 U. S. 237, 251 (2008) (“We resist attributing to Congress an intention to render a statute so internally inconsistent.”).

   Interpreting the “except” clause to train on conduct offending §924(c) also makes sense as a matter of syntax. The “except” clause is not a standalone enactment, or even a standalone sentence. Rather, it precedes and qualifies §924(c)(1)(A)’s principal clause, which punishes the possession of a firearm in connection with specified predicate crimes. The “grammatical and logical scope” of a proviso, we have held, “is confined to the subject-matter of the principal clause” to which it is attached. United States v. Morrow, 266 U. S. 531, 534–535 (1925). As a proviso attached to §924(c), the “except” clause is most naturally read to refer to the conduct §924(c) proscribes. Accord United States v. Villa, 589 F. 3d 1334, 1343 (CA10 2009).

   There is strong contextual support for our view that Congress intended the “except” clause to serve simply as a clarification of §924(c), not as a major restraint on the statute’s operation. At the same time Congress added the “except” clause, it made the rest of §924(c) more complex. The 1998 revision divided the statute’s existing sentencing prescriptions into four paragraphs in lieu of one, and added new penalties for brandishing and discharging a firearm. §924(c)(1)(A)–(D). We know that Congress thought the restructuring might confuse sentencing judges: Warding off confusion, all agree, was the Legislature’s sole objective in adding the initial part of the “except” clause, which covers greater minimums provided “by this subsection.” That portion of the clause instructs judges to pick the single highest sentence stipulated for a §924(c) violation within §924(c) itself, and not to stack ten years for discharging a gun on top of seven for brandishing the same weapon, whenever a defendant does both.

   In referencing greater minimums provided by “any other provision of law,” we think, the second portion of the “except” clause simply furnishes the same no-stacking instruction for cases in which §924(c) and a different statute both punish conduct offending §924(c). Congress likely anticipated such cases when the “except” clause was framed in 1998, for the bill that reformulated the text of §924(c) did just one thing more: It amended 18 U. S. C. §3559(c) to command a life sentence when certain repeat felons are convicted of “firearms possession (as described in §924(c)).” Pub. L. 105–386, §1(b), 112 Stat. 3470.

   Our interpretation, Abbott and Gould protest, renders the second part of the “except” clause effectively meaningless. Section 3559(c) is the only existing statute, outside of §924(c) itself, the Government places within the “except” clause. Tr. of Oral Arg. 32–35, 42–44.[Footnote 8] But §3559(c) already imposes a life sentence. A defendant would find little comfort in knowing that no §924(c) sentence, say five years or seven, will be tacked on to his §3559(c) life term.

   As Courts of Appeals have observed, however, the “any other provision of law” portion of the “except” clause installs a “safety valve.” United States v. Studifin, 240 F. 3d 415, 423 (CA4 2001). It “allow[s] for additional §924(c) sentences,” akin to the sentence prescribed in §3559(c), that Congress may codify outside §924(c) “in the future.” See Abbott, 574 F. 3d, at 208. We do not regard this allowance as “implausible.” See Abbott Brief 22; Gould Brief 21. As the Government points out, “there is nothing unusual about Congress prescribing mandatory minimum penalties for substantive offenses codified in other provisions.” Brief for United States 22. See, e.g., §3559(c) (prescribing penalties for violations of, inter alia, 49 U. S. C. §46502 and 18 U. S. C. §§1111, 2111, 2113, and 2118); §3559(d) (prescribing penalties for violations of, inter alia, 18 U. S. C. §§2422, 2423, and 2251); 18 U. S. C. §924(e) (prescribing penalty for violation of §922(g)). See also 18 U. S. C. §924(j)(1) (prescribing a nonmandatory penalty of death for individuals who commit murder with a firearm in the course of a §924(c) offense).

   Our decisions in Gonzales and Republic of Iraq v. Beaty, 556 U. S. ___ (2009), do not warrant a different conclusion. We observed in Gonzales that “the word ‘any’ [ordinarily] has an expansive meaning.” 520 U. S., at 5 (holding that “any other term of imprisonment” includes terms imposed by state courts). See also Beaty, 556 U. S., at ___ (slip op., at 7) (the word “any” in “any other provision of law” was “no warrant to limit the class of provisions of law”). But our decision on the petitions of Abbott and Gould does not turn on artificial confinement of the phrase “any other provision of law.” We rely, instead, on the different direction Congress prescribed for the “except” clause: It applies only when “a greater minimum sentence is otherwise provided.” “In the contest between reading” that phrase “to refer to penalties for the [§924(c)] offense in question or to penalties for any [other] offense [a defendant commits], we believe the former is the most natural.” Easter, 553 F. 3d, at 526.[Footnote 9]

*  *  *

   For the reasons stated, the judgments of the Court of Appeals for the Third Circuit and the Court of Appeals for the Fifth Circuit are

Affirmed.

   Justice Kagan took no part in the consideration or decision of these cases.

Footnote 1

 Abbott received ten years on each drug-trafficking count. Those sentences, imposed concurrently, did not alter his total term of imprisonment and do not figure in this case.

Footnote 2

 Compare United States v. Williams, 558 F. 3d 166, 171 (CA2 2009) (clause covers “minimum sentences for … offenses arising from the same criminal transaction or operative set of facts”); and United States v. Almany, 598 F. 3d 238, 241 (CA6 2010) (clause applies whenever a defendant “is subject” to a greater mandatory minimum), with United States v. Parker, 549 F. 3d 5, 11–12 (CA1 2008) (clause does not cover sentences for predicate drug offenses but might cover sentences for ACCA firearm offenses); United States v. Villa, 589 F. 3d 1334, 1343 (CA10 2009) (clause covers only sentences for conduct offending §924(c)); United States v. Segarra, 582 F. 3d 1269, 1272–1273 (CA11 2009) (same); 574 F. 3d, at 208 (case below) (same); United States v. Easter, 553 F. 3d 519, 526 (CA7 2009) (per curiam) (same); United States v. Studifin, 240 F. 3d 415, 423 (CA4 2001) (same); United States v. Alaniz, 235 F. 3d 386 (CA8 2000) (same); and 329 Fed. Appx., at 570 (case below) (same).

Footnote 3

 These provisions read:

   “(B) If the firearm possessed by a person convicted of a violation of this subsection—

   “(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

   “(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

   “(C) In the case of a second or subsequent conviction under this subsection, the person shall—

   “(i) be sentenced to a term of imprisonment of not less than 25 years; and

   “(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.”

Footnote 4

 Because Gould’s only firearm-related offense is his §924(c) offense, Gould’s sentence would stand under Abbott’s alternative construction.

Footnote 5

 ACCA sentences may run concurrently with drug sentences.

Footnote 6

 Firearms Owners’ Protection Act, 1986, Pub. L. 99–308, §104(a), 100 Stat. 456–457 (increasing sentences for certain firearms and adding drug trafficking as a predicate felony); Anti-Drug Abuse Act of 1988, Pub. L. 100–690, §6460, 102 Stat. 4373–4374 (increasing sentences); Crime Control Act of 1990, Pub. L. 101–647, §1101, 104 Stat. 4829 (same); Public Safety and Recreational Firearms Use Protection Act, 1994, Pub. L. 103–322, §110102(c), 108 Stat. 1998 (same).

Footnote 7

 For those who take legislative history into account, it is as silent as is the statute’s text. The sole reference to the “except” clause appears in the statement of one witness at a Senate hearing. See Hearing on S. 191 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 38 (1997) (statement of Thomas G. Hungar) (“[B]y adding an introductory clause authorizing imposition of stiffer minimum sentences if required under other provisions of law, S. 191 eliminates any potential inconsistency with other statutes.”).

Footnote 8

 We agree with the Government that a qualifying statute need not “explicit[ly] reference” §924(c), Tr. of Oral Arg. 27; a statute will fit the bill if it provides a greater mandatory minimum for an offense that embodies all the elements of a §924(c) offense.

Footnote 9

 Abbott and Gould invoke the rule of lenity as a final reason to construe the “except” clause to bar their punishments under §924(c); if their proposed limitations are textually possible, they maintain, we may not choose the Government’s. “[T]he touchstone of the rule of lenity is statutory ambiguity.” Bifulco v. United States, 447 U. S. 381, 387 (1980) (internal quotation marks omitted). “[A]fter consulting traditional canons of statutory construction,” United States v. Shabani, 513 U. S. 10, 17 (1994), we are persuaded that none remains here: The “except” clause covers only conduct offending §924(c). Although the clause might have been more meticulously drafted, the “grammatical possibility” of a defendant’s interpretation does not command a resort to the rule of lenity if the interpretation proffered by the defendant reflects “an implausible reading of the congressional purpose.” Caron v. United States, 524 U. S. 308, 316 (1998).

Print this transcript Transcript: 

ORAL ARGUMENT OF DAVID L. HORAN ON BEHALF OF THE PETITIONER IN NO. 09-7073

Chief Justice John G. Roberts: We will hear argument next in Case 09-479, Abbott v. United States and the consolidated case, 7073, Gould v. United States.

Mr. Horan.

Mr. Horan: Mr. Chief Justice, and may it please the Court:

The statutory interpretation question here is what laws trigger section 924(c)(1)(A)'s except clause.

Mr. Gould offers an interpretation that gives meaning and effect to every word and phrase of section 924(c)(1)(A) and follows this Court's recent holdings regarding the broad scope of the phrase "any other provision of law".

The Government, on the other hand, advocates a narrow construction that is not supported by the text and defends it primarily on the basis that section 924(c) supposedly should always produce the most severe mandatory minimum sentence for every defendant.

Respectfully, the Government's interpretation is incorrect.

Its reading gives no practical effect to the phrase v. Beaty just last year.

Unlike the Government's, Mr. Gould's interpretation is true to the text, is true to this Court's holdings, and it's true to Congress's evident purpose in 924(c)(1)(A), and in particular in its except clause.

Justice Samuel Alito: Well, if the text of this is so clear, how is it that Mr. Gould and Mr. Abbott proposed different interpretations of this provision?

Mr. Horan: Your Honor, as a judicial matter, I would note that I think our interpretations are not that far apart.

Justice Samuel Alito: But they are not the same, are they?

Mr. Horan: They are not.

And our interpretation, we believe, is the closest to the actual text.

Our interpretation requires reading no language into the text.

It--

Justice Samuel Alito: Isn't it -- there is a missing prepositional phrase in this -- in the provision that we are looking at.

It says,

"except to the extent that a greater minimum sentence is otherwise provided. "

For what?

And all of you have to -- are filling in the prepositional phrase.

For an offense of conviction, for -- for an offense that's part of the underlying transaction, for a violation of this particular provision or one that's very similar to it.

There is just no way of getting around the fact that something has to be read in there.

Something is implied; isn't that right?

Mr. Horan: --Your Honor, respectfully, I believe under our interpretation, it -- there is -- you do have to understand something to be in there, but we are not actually reading anything into the text.

That is the reason -- to be sure, the words "any kind of conviction" are not in there.

However, the most natural reading of the text, without adding anything to it, is that 924(c)(1)(A) requires a five-year -- at least a five-year minimum sentence, in addition to any sentence for the predicate drug trafficking or violent crime, except to the extent that a greater minimum sentence is provided for the defendant by subsection 924(c) or by any other provision of law.

Justice Ruth Bader Ginsburg: So that means there would be no punishment, added punishment, at all for the possession of the gun; that is, you have the possession with intent to distribute, no gun involved, and you get ten years mandatory minimum for that.

That automatically would wipe out any add-on for the gun, under your reading.

Mr. Horan: Yes.

Yes, Justice Ginsburg.

To follow on that, it is true that our interpretation -- we think that the plain text dictates that if the except clause is triggered, the lesser mandatory minimum sentence under 924(c)(1)(A) shall not be imposed; that is--

Justice Sonia Sotomayor: I'm sorry.

You keep saying that you are not reading anything into the statute under your interpretation, but you are.

You are limiting the -- the "any other provision of law" to any other provision of law specified in the charging -- in the counts of conviction, correct?

Mr. Horan: --That is the -- yes, Your Honor.

We are recognizing that limitation.

Justice Sonia Sotomayor: So you -- you said to Justice Alito that you weren't reading anything in, but you are.

You are reading into it that the other provision of law to refer to counts of conviction at sentencing, correct?

Mr. Horan: That is correct, Your Honor.

Justice Sonia Sotomayor: All right.

So why is that read-in logical, meaning it's giving no extra punishment for the possession of a firearm?

Mr. Horan: Your Honor, two things--

Justice Sonia Sotomayor: Which is, I think, Justice Ginsburg's.

Justice Ruth Bader Ginsburg: Yes.

I think you weren't finished answering my question.

Mr. Horan: --If I may, and I think it will help in answering your question, Justice Sotomayor, that is correct.

The only thing I would say, the thing I would additionally say, though, is that there is -- in the sentencing guidelines, which must be applied even now, as -- to provide a recommended range, there would in each of these instances be a firearm enhancement that enhances the underlying predicate offenses' sentence that the defendant would be facing and how the district court would work.

So I believe--

Justice Ruth Bader Ginsburg: But that is not mandatory?

Mr. Horan: --That is no longer mandatory.

That is correct.

And then with regard to your question, Justice--

Justice Ruth Bader Ginsburg: So you are saying that the gun possession could be accounted for by the judge as a matter of discretion using guidelines, but there is no mandatory at all?

Mr. Horan: --Yes, Your Honor.

That is correct.

There would no longer be a mandatory sentence for -- mandatory additional punishment for the firearm possession.

Justice Antonin Scalia: And I suppose the prosecution can alter the consequence based on what it chooses to bring in a single prosecution.

I mean, if it has a -- other enhancements, it should bring a separate prosecution for that.

So long as it brings it in one suit, you say, in one prosecution, you get the break.

But if -- if the other enhancement is brought -- has been brought in a separate prosecution, you don't get it.

Mr. Horan: Justice Scalia, I think that's correct to an extent.

The main exception to that, and I think it's a significant one, is that the except clause would most often be triggered in the majority of cases by the predicate drug trafficking or violent crime that carries with it a greater mandatory minimum sentence that is, for double jeopardy purposes, the same offense as 924(c).

So, in fact, there is a significant constraint on the prosecution, that it cannot bring a separate prosecution for 924(c) and its predicate drug or trafficking -- drug trafficking or violent crime.

So it's a significant limitation on this--

Justice Antonin Scalia: Yes.

Yes, I understand what you are saying.

Mr. Horan: --Okay.

And Justice Sotomayor, to return to your question, -- if I could answer it in two parts.

First -- and I didn't mean to overstate, if I did -- we are not reading additional language into it.

Our reading is contained within the context and the actual text that -- that is confined to section 924(c).

Justice Sonia Sotomayor: Explain how, because you just said to Justice Scalia that if the mandatory minimum is in a separate charging instrument, then it doesn't affect you at all.

It only affects you if the count is in a count of conviction at sentencing.

Mr. Horan: Yes, Your Honor.

That's correct.

Justice Sonia Sotomayor: So what in the language of 924(c) sets forth that limitation?

Mr. Horan: Your Honor, I would say that it is the words "is otherwise provided" and the context in which any textual reading--

Justice Sonia Sotomayor: Well, their "otherwise provided by law" could be Federal, State laws.

It could be in the indictment, not in the indictment.

You are proposing that we limit this somehow, but I want to see what the language is that you are relying upon to limit it.

Mr. Horan: --Your Honor, it is -- first of all, the statute begins by directing the defendant -- I mean, directing the district court to any person.

So they are focusing on the defendant.

That is the offense defining provision, to be sure, of the sentence.

But throughout the text, it also directs the district court to take account of minimum sentences that are provided for other crimes; for instance, primarily the predicate--

Justice Sonia Sotomayor: In relationship to what?

Isn't that the Government's argument, which is that you have to say in relationship to something, whether it's the indictment or, as the Government would have it, in relationship to the possession or carrying of a firearm?

Why isn't that the more natural reading?

Mr. Horan: --Your Honor, because that -- because the statute as a whole is essentially instructions to the district court on how to sentence the defendant, if at all, for the 924(c)(1)(A) offense.

It directs them to, after considering the person in front of them, to impose a sentence of five years or less, in addition to the predicate -- any penalty for the -- the predicate drug trafficking or violent crime, except to the extent that a greater minimum sentence is otherwise provided.

The natural reading of that is -- must be that it is a -- a greater minimum sentence is provided for that defendant; that is, before the particular district court with the particular offenses that he has before him at sentencing.

Justice Ruth Bader Ginsburg: Don't most crimes of violence and drug trafficking carry more than a five-year sentence?

Mr. Horan: Many of them do, Your Honor.

In fact, those that carry a mandatory minimum sentence largely carry -- all carry, in fact, ten years.

There are some -- there are some both predicate drug trafficking offenses and predicate violent crimes that carry either no minimum at all or a mandatory minimum of five years or less, and so would not trigger the except clause.

Justice Antonin Scalia: 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.

You are saying he could get that enhancement and the enhancement under this -- under this gun -- he had a gun at the same time.

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?

Mr. Horan: That's correct, Your Honor.

Justice Antonin Scalia: That seems--

Justice Stephen G. Breyer: I'm not sure that that's right.

I think that this may well apply to the crime that is being -- that is being prosecuted where the crime is defined as a real offense in the world, with the limitations put on that term by the guidelines.

I would think that would be a natural reading, in which case you would look to the conduct of the person.

And if the conduct of the person is such that it calls for a mandatory minimum of a certain kind, there we are.

If that exceeds this amount, there we are.

You can't apply it.

And if it doesn't, you do apply it.

Mr. Horan: Yes.

Justice Stephen G. Breyer: Have you looked into that?

I mean, that was my reading of it as -- in the most natural way.

The word "crime" is ambiguous.

Sometimes it means words in a statute.

Sometimes it means an affair in the world.

And I thought this one probably meant the affair in the world.

Mr. Horan: In answering your question, Justice Breyer, and in answering Justice Scalia's question, my assumption was that there were, in fact, mandatory minimums such that this would play out with one being greater than the other.

Justice Antonin Scalia: --He's disagreeing with you.

He -- your theory -- you are not reading a crime to mean an affair in the world.

You are reading it to mean a particular prosecution for a particular violation of a statute.

Right?

Mr. Horan: No, that's correct.

Justice Antonin Scalia: Well, read it that way.

If he wants to read it as an affair in the world, what--

Justice Stephen G. Breyer: If that's so, then this gives tremendous power to the prosecutor to decide what the sentence will be in terms of how he manipulates the charge.

And I thought that probably this, read with the guidelines, is designed not to -- not to permit that.

It's to minimize the discretion, not to maximize.

Mr. Horan: Your Honor, there will be circumstances in which the prosecutor for the Government, based on how it makes its charging decisions, can affect the floor that's created by the minimum sentence.

It's a different situation than Deal, which is actually determinant sentences.

It's not actually a circumstance where the Government can determine the punishment itself.

That would still be to the district court.

But we maintain that this is the most natural reading.

And in fact, for instance, when this concern came up in Deal, that was confirmed the most natural reading of the plain text.

The Government would actually turn that analysis on its head under these circumstances.

Justice Sonia Sotomayor: Justice Breyer is reading a bit what your co-counsel is advocating, what Mr. Abbott is arguing?

Mr. Horan: No, Your Honor.

I--

Justice Sonia Sotomayor: No?

Justice Stephen G. Breyer: I mean, I don't know if it makes any difference.

I mean, has there ever been such a case, where the prosecutor worked this in such a way that he would produce this?

Are you aware if any such case ever happened?

Mr. Horan: --No, I'm not aware of that, Your Honor, in part because the except clause is -- there aren't that many instances of the except clause having been actually applied.

Justice Antonin Scalia: --There has never been any incentive to do so, until we accept your interpretation.

Then there will be means to do so.

Mr. Horan: There may be -- Justice Scalia, there may be some incentive do so, subject to other constraints, including the -- the usual practice of charging, for instance, most offenses as they come under the transaction in the same indictment.

There are -- will be counterincentives, to be sure.

Your Honor, for the -- in addition to the fact that our interpretation does not involve, we think, adding anything into the text that others must, we think it establishes -- it advances an evident purpose that Congress had in this, which was to ensure that a defendant who is convicted under 924(c)(1)(A) receives some sufficient minimum punishment.

After 1998, the 1998 amendments, section 924(c)(1)(A) was trafficking, in essence, in minimum sentences.

And that's what this is about.

So this way, a defendant will receive a sufficient minimum sentence by way of 924(c) -- I see that my time is up.

Mr. Abbott will be represented by Mr. Ryan at this time.

Chief Justice John G. Roberts: Thank you, Counsel.

Mr. Horan: Thank you.

Chief Justice John G. Roberts: Mr. Ryan.

ORAL ARGUMENT OF JAMES E. RYAN ON BEHALF OF THE PETITIONER IN NO. 09-479

Mr. Ryan: Mr. Chief Justice, and may it please the Court:

I would like to spend some time on the second question in our petition, regarding whether other firearms offenses are included within the scope of the except clause.

But before I do, I would like to make a couple of points about the first question, which is common to our case and to Mr. Gould's.

Justice Sotomayor asked: Why isn't the Government's reading the most natural?

And the answer is pretty simple.

The Government's reading leaves one half of the effect clause with absolutely no practical effect.

The Government has, in its current interpretation, suggested that the except clause applies to one provision of law outside of 924(c).

That is 3559(c).

And yet with respect to that provision, the except clause does absolutely no work, both for practical reasons and because of the way 3559(c) is written.

Justice Sonia Sotomayor: 930(c): A person who kills any person in the course of bringing a firearm into a Federal facility shall be punished as provided in sections setting forth minimums for murder and manslaughter.

So it would also have an effect in 930(c), no?

Mr. Ryan: It's not clear from the Government's argument, Justice Sotomayor.

Justice Sonia Sotomayor: I wasn't sure why it didn't list 930, but--

Mr. Ryan: As I understand the Government's argument, the sentence that -- the only sentence that would count outside of 924(c) would be a sentence specifically for a 924(c)(1)(A) offense--

Justice Sonia Sotomayor: --I know, but its brief does two formulations.

It says--

Mr. Ryan: --Exactly right.

Justice Sonia Sotomayor: --anything that affects 924(c); and then in other places in its brief it says the --

"the "except" clause refers to any higher minimum sentence for possessing, using or carrying a firearm in relationship to a drug or -- drug offense or a crime of violence. "

Those are two different formulations.

Mr. Ryan: That's exactly right, Justice Sotomayor.

And--

Justice Sonia Sotomayor: I am focusing on the second formulation.

Mr. Ryan: --Okay.

That point actually demonstrates why the Government's justification for this limitation doesn't hold up.

As the Government argues at one point, the reason to read 924(c)(1)(A) crimes is because the 924(c)(1)(A) offenses.

Yet that is not the case.

As this Court indicated in O'Brien, 924(c)(1)(B) is a separate offense.

Well, if 924(c)(1)(B) can trigger the 924(c)(1)(A), the Government's argument about excluding other offenses that might be separate from 924(c)(1)(A) no longer holds up.

The other difficulty with the Government's reading, to go back to the practical point, is that if you apply it just to 3559(c), it can have no effect because as a practical matter no one can serve a term of years after successfully completing a life sentence, which is what's required under 3559(c); and 3559(c) itself has a provision that, the 924(c) is the third strike for purposes of 3559(c).

That in turn just leaves future applications, and there the Government's scenario under which the language that currently has no effect might have some effect is nothing short of far-fetched.

It would require Congress to amend the sentence of 924(c)(1)(A) outside of 924(c)(1)(A) and not indicate how those two penalties should interact.

Now, if I could turn to the questions about the transactional limitation which we suggest.

The point of suggesting that the Mr. Gould's counsel.

We think that it's the more natural reading of the statute in part because of concerns recognized by this court in the United States v. Deal, namely that the statute is not designed and should not be read to give prosecutors unreviewable discretion as to when the minimum sentence in 924(c) ought to be applied or not.

It also would preclude the equally odd situation of a defendant being able to benefit from the "except" clause in a multi-count indictment when the defendant has -- faces a higher mandatory minimum sentence for a completely unrelated -- unrelated charge.

Justice Samuel Alito: Where would we look to find the definition of a criminal transaction for these purposes?

Mr. Ryan: You could look into 924(c) itself.

Our view is that it would be no different than the transaction that would give rise to the 924(c) charge itself, and so for that reason would necessarily include the predicate offense or another firearms offense.

Justice Samuel Alito: What if there were several 924(c) offenses committed during a rather brief period of time?

What if on the same afternoon an individual engaged in a number of drug trafficking offenses and during each of those used or carried a firearm?

Would they -- would they be part of the same criminal transaction?

Mr. Ryan: No.

Just as different -- different transactions can lead to multiple 924(c) charges, which is what happened in Deal, that could also occur here.

Justice Samuel Alito: Well, you say different transactions, but I'm looking for the definition of a criminal transaction.

The criminal law has labored with this for a long time.

It's not a self-defining concept, is it, a criminal transaction?

Mr. Ryan: No, it's not, but -- Your Honor, but I don't see how it would be any more difficult to determine the transaction than to look at what would constitute the 924(c) offense.

It would be the same set of operative facts that could lead to a 924(c) charge which would count as the transaction.

Justice Ruth Bader Ginsburg: Mr. Ryan, I thought that you had three positions and now you are talking about the second one, which is any greater minimum sentence arising from the same criminal episode.

But I thought your first position was any greater minimum sentence applicable to the defendant at sentencing.

Mr. Ryan: That is Mr. Gould's position.

Our position is limited to the same transaction.

Our alternative position, which I would like to turn now--

Justice Sonia Sotomayor: --charging--

Mr. Ryan: --Well, the way it would have to work is that there would have to be a previous conviction.

Now, if I could turn to the firearms argument.

Our argument here is straightforward--

Justice Antonin Scalia: Excuse me, before you go on.

Your last remark, it has to be a previous conviction.

So why doesn't that leave it in the hands of the prosecutor whether to bring that conviction, that other case, prior or subsequent?

Mr. Ryan: --I misspoke.

Justice Scalia, you are exactly right.

It would include uncharged.

It would -- it would prohibit prosecutors from being able to use charging instruments to determine whether 924(c) would apply.

I was thinking of a particular example, but in the general case you are right.

I apologize for that misstatement.

Now, if I could just spend a little bit of time on our second question.

Our argument here is fairly straightforward and fairly modest.

And it relies on the fact that 924(c) is essentially a firearms offense, and the punishment provided in the different paragraphs in 924(c) are primarily about firearms.

And so, in looking to determine the meaning of 924(c) that punish firearms offenses.

Now, to be sure, this particular limitation is not commanded by the plain language of the statute and rests, like the Government's argument, on context and purpose.

But the difference is that this argument still gives some effect to the "except" clause.

It would apply, as here, to other firearms offenses outside of 924(c) like the Armed Career Criminal Act.

Justice Samuel Alito: Well, it gives broader effect.

It gives broader effect to the "except" clause, but the Government's argument gives effect to the "except" clause, doesn't it?

Mr. Ryan: It gives no--

Justice Samuel Alito: --3359(c) which was enacted at the same time as the 924(c).

Mr. Ryan: --Two points, Justice Alito.

First, the Government's reading has no practical effect.

It leaves the "except" cause with no practical effect.

You could take the 3559(c).

As for the enactment of 3559(c), the Government's argument is actually different.

The Government argues that when 3559(c) was amended to include possession--

Justice Samuel Alito: Yes.

Mr. Ryan: --it was at that point that the except clause also entered into 924(c).

The difficulty with that argument, as we explained in our brief, is that 3559(c) was already linked with 924(c) insofar as both addressed use.

And because 3559(c) and 924(c) were already linked, and the 3559(c) indicated that if the 924(c) offense is your third strike, you get the life sentence, that's it, well, the fact that Congress then amended 3559(c) to make another connection with 924(c) can't possibly explain why there is a sudden need for the "except" clause.

But the question is an -- is an important one because it goes to the fact that the Government has offered three different interpretations of the language in this case.

The first -- one of the first was in Whitley, where it suggested 924(c) provided that they impose a consecutive sentence.

That argument was rejected for the idea that, instead, 924's 3559(c); and it has come up with a new theory as to why the "except" clause exists in the first place.

But that theory doesn't hold up, and the Government's shifting interpretations, if nothing else, suggests that the Government has not hit upon the most natural reading.

Justice Ruth Bader Ginsburg: But you have offered three different readings, so one can't say that this statutory text has a clear meaning, which I think is your first argument -- that it has a clear meaning.

And yet, we have Mr. Gould's reading and then the two readings that you have offered us, same episode and same gun.

Mr. Ryan: Yes, Justice Ginsburg.

We think our first argument is the most natural and the clearest, but I take your point; and the only response I would make is, if shifting interpretations or different interpretations suggest that at the end of the day the language is ambiguous and grievously so, under the rule of lenity, we ought to prevail.

So I'm perfectly comfortable with that conclusion.

If there are no further questions, I would like to reserve the remainder of my time for rebuttal.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. McLeese.

ORAL ARGUMENT OF ROY W. MCLEESE ON BEHALF OF THE RESPONDENT

Mr. McLeese: Mr. Chief Justice, and may it please the Court:

A district court judge in--

Justice Sonia Sotomayor: Counsel, could I just ask one simple question, the one I started with earlier, which was, which of the two statements are you advocating, that the 924(c) explicitly, or are you saying the "except" clause -- and I'm quoting from your brief, in two different places --

"The "except" clause refers to a higher minimum sentence for possessing, using a firearm in relationship to a crime of violence or a drug offense? "

Mr. McLeese: --I don't think there needs to be an explicit reference.

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. "

Justice Sonia Sotomayor: All right.

If that's the case, your adversary just said, Mr. Abbott's attorney just said, that you don't believe that section 924(c)(1)(A) is trumped by 924(c)(1)(B) or by 18 U.S.C. section 930(c).

Is his allegation correct or is he wrong?

Mr. McLeese: He is incorrect.

Justice Sonia Sotomayor: Okay.

Mr. McLeese: First, with respect to the internal structure of 924(c), 924(c) as it was amended in 1998 is a somewhat complex statute.

It has a mix of sentencing enhancements and elements which create aggravated versions of the offense; but it is all a single offense for double jeopardy purposes, for purposes of what punishment to impose.

And therefore, the 924(c) menu items, they are all a single offense, and you impose a single mandatory minimum sentence that is the greatest of those which are applicable.

Now, with respect to 930(c)--

Justice Sonia Sotomayor: I'm sorry.

So that if he discharges a firearm and it says it is a sentence of not less than 10 years and he -- and that firearm is also a short barrelled rifle with a 10 year minimum, does he get 10 years or does he get 20 years?

Mr. McLeese: --He gets 20 years.

Justice Sonia Sotomayor: How?

Mr. McLeese: Because the 924(c) offense.

In that instance there are two.

One of them provides for a 7-year mandatory minimum, one provides a 20-year mandatory minimum.

Justice Sonia Sotomayor: So if it's a machine gun where there is a 30-year minimum, does he get 40 or 30?

Mr. McLeese: He gets 30.

The 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 John G. Roberts: But that's not -- 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?

Mr. McLeese: --That point, Mr. Chief Justice, applies in support of our position, because everyone agrees that the primary function, the first half of the "except" clause, does exactly that.

That's all it does.

It does nothing else.

To the extent the "except" clause says

"except to the extent a greater minimum sentence is provided by this subsection. "

the only function--

Justice Antonin Scalia: But that would include (b).

But that would include (b).

(B) is part of the same subsection, isn't it?

Mr. McLeese: --Yes.

Justice Antonin Scalia: So, you know, I think what the Chief Justice says is very obvious when you are just talking about C(1)(a), but it isn't obvious to me that if -- if the firearm is discharged and in addition it's a machine gun or destructive device, that you'd only get the 30 rather than the 30 plus 10.

Mr. McLeese: Quite so.

Justice Antonin Scalia: That isn't obvious to me.

And the "except" clause would -- would handle that.

Mr. McLeese: Correct.

And it's important to realize--

Chief Justice John G. Roberts: Well, I guess things are obvious to different people.

I would have thought it would be odd to say when there are increased minimums that the highest minimum applicable isn't the one that applies.

Mr. McLeese: --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 10 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.

The point I was trying to make, though, Mr. Chief Justice, is all of this, the idea that it really isn't that critical even to clarify in the first half of the 924(c) and as it reaches externally, is about clarifying something that it may be true district court judges otherwise would have been able to figure out had they done a lot of analysis, but it makes it much simpler and the practical utility of it is to clarify a sentencing judge's options with respect to a statute that has been made much more complex.

Chief Justice John G. Roberts: But your main -- the meat of your argument focuses on 3559(c), right?

There is this significant provision out there that does provide a greater mandatory minimum.

And I just don't see as a practical matter why people would worry about that.

Under 3559(c), you get life.

And you are saying, well, they put in the 5 years at the end of a life sentence.

Mr. McLeese: Mr. Chief Justice, I think the effect of the "except" clause is the opposite, which is it makes sure that a judge imposes only life and does not add additional sentences.

Chief Justice John G. Roberts: Yes, exactly.

Yes, I'm sorry.

Mr. McLeese: And I agree, from the perspective of a defendant, that may not be most consequential.

But this is a provision which, taken as a whole, was clarifying not just externally to 924(c), but also internally what district court judges should do with a complex--

Chief Justice John G. Roberts: Okay.

Well, just so I make sure I understand, the basic point you are making is that there are some things under your reading that this deals with.

One is the internal point, and we can disagree as to whether that is necessary or not, and the other is 3559(c), where it seems to me it doesn't make any difference whether you are in there for life or life and the additional 5 years.

Mr. McLeese: --I agree, it's not practically significant to a defendant, although sentences of life plus additional terms or consecutive life are not at all uncommon in the code.

But it is of significance to district court judges who are trying to figure out what sentence to impose.

And this provision--

Justice Sonia Sotomayor: What do you do with 930(c)?

Don't leave without answering my question.

Mr. McLeese: --Yes.

I do not interpret 930(c) as subject to the "except" clause.

I believe it is a separate offense with different elements and under the double jeopardy analysis that would apply it is possible--

Justice Sonia Sotomayor: But your answer to me was, you read the "except" clause as applying to any higher minimum sentence for possessing, using or carrying a firearm in relationship to a drug offense or crime of violence.

Isn't killing a person a crime of violence?

Mr. McLeese: --Yes.

Although 930(c)--

Justice Sonia Sotomayor: And isn't bringing of a firearm into a Federal facility the carrying of a firearm?

Mr. McLeese: --Yes.

Although 930(c) does not require the killing of a person, it extends to attempts--

Justice Antonin Scalia: Where is 930(c)?

Can you tell me where it is--

Mr. McLeese: --I don't believe -- it is referred to only in Petitioner Abbott's brief at a page number I don't recall.

It is not one of the provisions that--

Justice Sonia Sotomayor: No, but I'm still trying to understand your position, which is -- I read what you said to me the 930(c) and I couldn't figure out why you didn't list it.

Mr. McLeese: --Because 930(c) does not require an actual killing of a person.

It extends to conspiracy and attempt.

Therefore, one can violate 930(c) without violating 924(c) and vice versa.

Justice Sonia Sotomayor: How?

Mr. McLeese: By conspiring or--

Justice Sonia Sotomayor: A person who kills any person--

Mr. McLeese: --Or by attempting to do so.

So 930(C) has a broader reach because of these vicarious and inchoate forms of liability.

So a defendant could be convicted separately of 930(c) and of 924(c).

They are not the same offense for double jeopardy--

Justice Stephen G. Breyer: So there are two possible readings now of the "except" clause where it says -- the words are the subsection doesn't apply where a mandatory -- where any other provision of law sets forth a higher mandatory.

Now, one possible reading, which is yours, is what this means is that, judge, where you are operating under that provision you just mentioned, and the guy has committed two serious 924(c) things, and so he is entitled to life -- this is just what the Chief Justice said -- this is done to remind the judge don't give him life plus 25 years, because it would be 25 years under this statute, not 5.

That is one possibly reading.

The other possible reading is, judge, where, in fact, you have the underlying drug offense, that's going to get you up into the 30s in the guidelines, it's going to be probably 10, 5 years, or whatever it is.

You have a pretty high drug offense already.

And now we give him 5 extra years, say, for having a gun under this, unless he's already gotten, say, a mandatory minimum of 7 years.

And if he's already gotten the mandatory minimum of 7 years, here's what's happened: Judge, turn to the guidelines and the guidelines will tell you to add 3 or 4 extra years.

So in one -- those are the two possible readings.

Now, the first reading to me makes very little sense.

The second reading to me says, yeah, this is serving a purpose.

It's once you are sure this guy has to go to jail for 5, 6, 7, maybe 10 or 20 years for sure, extra amounts are controlled by the guidelines, which is administered by a judge.

Now, if you just came across that for the first time, which would you think was most probable?

Mr. McLeese: --Well, I think when you place this in the context of the 1998 amendments that enacted the "except" clause, it is quite clear that the former is more plausible.

And the reason I say that, there are really five features of the 1998 amendments that illustrate that the 924(c) offense, but rather is clarifying which sentence to impose.

The first is that the 1998 amendments, setting aside the 924(c).

It changed what had been mandatory sentences to mandatory all the way to life.

It responded to this Court's decision in Bailey by increasing the substantive scope of the provision.

It increased the -- it created increased mandatory minimums for 7-year and 10-year offenses.

So it would be odd to think that in the second half of a presumptively narrow exception clause, Congress at the same time ran in the direct opposite direction and had a substantial rollback of preexisting section 924(c) sentencing provisions.

And that's -- to be clear, at the time of the 1998 amendments these Petitioners would have been subject to the mandatory minimum sentences that they received.

They would have been subject to 10 years in one of the cases for the drug offense and 5 additional years mandatory and consecutive under 924(c).

For the other they -- he would have been subject to 15 years for being a felon in possession and an armed career criminal and 5 additional under 924(c).

So one of the features that is key is putting this in the context of the 1998 amendments which were in every respect--

Justice Antonin Scalia: --Wait, but it -- but it does -- it does subject them to less, at least with respect to those -- those enhancements set forth within the subsection itself.

Mr. McLeese: --That is true.

But that is not a rollback of preexisting provisions.

It's a way of--

Justice Antonin Scalia: Why?

Mr. McLeese: --Because none of -- in prior 924(c) law, there wasn't a body of law that would have given anybody who would get the benefit of the 924(c) a higher sentence.

What all -- what the 7 or 10, you shouldn't telescope them all inside 924(c).

You shouldn't add them all together; you pick the highest.

And so it -- the "except" clause is not a rollback.

It is a way of accommodating and giving clear direction to the complexity of the newly enacted provision.

Justice Stephen G. Breyer: When -- when did Congress pass the statute that they amended in 1998?

The one you are saying -- I mean, it's a good point, you have a point, that this would make it more lenient, the interpretation.

But the "it" was passed when?

Mr. McLeese: Well, section 924(c) in its original form I think was passed in the 1960s.

Justice Stephen G. Breyer: So that's way before the guidelines.

So what they are trying to do now, in 1998, is they are trying to -- see, in 1998 what they are trying to do is take some of these old provisions and reconcile them with this new system that has come along.

So I agree you have a point there.

But it -- it does make a certain amount of sense, because what it is saying is, in these cases where you have a WAPPO mandatory minimum anyway, so you are sure he has got it, now the additional amount will be controlled by the guidelines, which are subject to not much discretion.

They are pretty close to mandatory minimums, but there is a little wiggle room.

Mr. McLeese: On the general approach of Congress under 924(c), it also bears note that in the last 25 years Congress has amended section 924(c) six times, and setting aside for a moment the "except" clause, in all of those amendments Congress has uniformly expanded its scope or increased the severity of sentences.

So the 924(c).

And there are several other features of the 1998 amendment that make clear that that is not what Congress did.

Justice Ruth Bader 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.

And if I can turn back to a couple of other features of the 1998 amendments, another feature is the -- the title of the act itself, which is an Act to Throttle the Criminal Use of Guns.

And again it's just inconsistent with the provision that has these features and has that act, and it would be a substantial important decrease in the mandatory minimum sentences applicable to a large class--

Chief Justice John G. 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.

Now there are two other features of the 1998 amendment, which are, it did as has been previously noted -- also, the only other thing that Congress did in the 1998 amendment, other than modifying section 924(c), is it made a corresponding change in section 3559(c) to -- to correspond.

So we know that section 3559(c) was front and center in Congress's mind as it was enacting the 1998 amendments and it is very natural when Congress is creating a more complex statute and giving district court judges guidance about which mandatory minimums to select under that statute, to mention and have language that accommodates the fact that there is--

Chief Justice John G. Roberts: With respect to 3559(c) they were in fact being more lenient, not stricter, right?

Mr. McLeese: --No, I think they were clarifying--

Chief Justice John G. Roberts: I thought you said earlier the purpose of this, what it does, is it makes sure that you don't add five extra years on the people who are sentenced to life.

Mr. McLeese: --I think it clarifies the relationship, and in fact arguably it could have clarified the situation in a way that would have been beneficial to defendants.

And the reason I say that is when Congress enacted the first half of the 924(c) -- if it hadn't mentioned 3559(c) there could have been the idea that if there -- if Congress didn't direct the same approach with respect to 3559(c), there is an implication that in fact you should impose both.

And so what it really was doing was clarifying what would have been unclear.

And it is again, only half of a presumptively narrow provision which is just clarifying the relationship--

Chief Justice John G. Roberts: Which is just saying when you get life, or you get 5, just serve life, don't serve the extra 5.

Mr. McLeese: --Yes.

Yes, but it's not saying that to defendants.

It's saying that to busy district court judges who just need to know in a simple, clear way, what am I supposed to -- what sentence am I supposed to--

Justice Antonin Scalia: That's the only thing that that additional language which says,

"otherwise provided by this subsection or by any other provision of law. "

--why didn't they just mention 3559(c)?

Mr. McLeese: --Well--

Justice Antonin Scalia: 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.

Mr. McLeese: --Well, remember that it was -- although it is not hugely consequent actual to defendants, it was a provision that Congress was directly considering then.

But there is another function, which is it creates a default rule for future similar provisions like 3559(c).

And so there -- and had -- again -- so it's not limited to its function with respect to 3559(c), it also serves, as Congress often provides, a default rule.

And so again there is a fifth feature of the 1998 amendments for those of whom this is concern, which is the legislative history of the provision strongly corroborates our interpretation.

Justice Stephen G. Breyer: It's not strongly.

The -- what is it an example?

You're saying this thing also serves the purpose that perhaps someday Congress will pass a new statute, a totally different one, and a busy district judge might think that he should add the 5 or 25 years from this provision on to whatever sentence this hypothetical new statute provides, but this will tell him not to do so.

Did you have anything in mind?

Mr. McLeese: Well, I -- there are -- there are other provisions that, like 924(j), which do provide sentences for 924(c) offenses that are codified elsewhere in the code.

And with respect to other offenses that is also quite common.

So there is nothing implausible about the idea that--

Justice Stephen G. Breyer: I take it in those other sentences there are other thing in the code, and the odd thing about this one is there no other thing in the code except the one we have been discussing.

And so I just wondered if there -- was there at the time anybody thinking of adding some new thing, that this might have been applicable to?

Or have you come across anything?

I take it your answer is no.

Mr. McLeese: --I'm not aware that -- that Congress had some particular pending legislation in mind.

My point more generally, though, is that it is quite common for Congress to provide penalties for offense A in a different section, and so creating a default rule is a perfectly reasonable thing for Congress to have done while it was clarifying the internal relationships among the various 924(c) provisions and the provision in 3559(c) which is front and center in front of it.

With respect to the legislative history the "except" clause language was proposed by Senator Jesse Helms.

In the legislative provision there is nowhere any comment by anyone suggesting that anyone understood it as rolling back preexisting section 924(c) penalties or as reflecting a new policy different from the fundamental policy of section 924(c), which has always been: Defendants who create drug trafficking offenses or violent crimes and who involve a weapon will get an additional--

Chief Justice John G. 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 Antonin Scalia: One witness at a hearing?

At a hearing?

And you really think that the rest of the Congress knew about that hearing?

Mr. McLeese: --I don't.

My point is really more the negative, which is if the except clause, in the second half of an exception that is in its first part intended to clarify, was instead a major policy shift from the preexisting policy of section 924(c), additional mandatory consecutive sentences.

And instead of shift over to sentences which we will try to adjust or ameliorate in light of other--

Justice Stephen G. Breyer: No, no, no.

It's a shift over to the sentencing guidelines which say a person like this one will receive an extra three or four or five years depending on the circumstances.

Will receive it, just like a mandatory.

Unless, of course, it is an unusual case.

That's what it's a shift to.

Am I wrong?

Mr. McLeese: --Two responses.

Two responses, Justice Breyer, one of which is that Congress has amended 924(c) both before and after this provision, and it's clear that Congress is not shifting from a mandatory minimum regime to a regime that -- where the guidelines are relied upon to provide the minimum sentence that Congress requires.

And it is a shift not just to a guidelines regime, because if this a major policy shift into a different world, there -- it poses a question of statutory construction as well, not just about guidelines.

And that's the next topic, which is--

Justice Antonin Scalia: Well, wait.

I mean, the guidelines can't be, as Justice Breyer said, just like a mandatory.

They can't be, can they?

Justice Stephen G. Breyer: I did.

Mr. McLeese: --They could not have been, even in the pre-Booker world.

Certainly, in the post-Booker world, they cannot.

Justice Antonin Scalia: Advisory.

Mr. McLeese: But the point is that Congress -- if Congress was shifting in the except clause, the question is, what is the nature of that policy shift?

If you were going to try to reduce 924(c) sentences to accommodate sentences on other provisions of law, instead of just making them an add-on always, then there is a question: What policy should you pick?

Should you pick any other sentence the defendant is facing at this sentencing?

Should you pick any other sentence arising out of this transaction?

That is not a guidelines issue.

That's a question of: What is the policy reflected by the statute?

Chief Justice John G. Roberts: You should pick any other violent or drug trafficking offense that already provides a higher minimum.

Mr. Ryan: That--

Chief Justice John G. Roberts: No, it seems to me the perfectly natural reading to say: Look, we are providing some minimum sentences when this happens, when this is the violent crime and you use a gun, but if you have already got a higher sentence for the violent crime, then this doesn't apply.

Mr. McLeese: That is a possible policy, to be sure, but one thing: It's certainly not the only reasonable policy.

You could focus on the transaction or you could focus on what the defendant is facing at the sentencing.

All those are among the policy options you could consider.

And what is interesting is that Petitioners can't agree on those policy options.

And they can't agree on the policy options because section 924(c) has no guidance about it.

And the reason section 924(c) has no guidance about it is because Congress was not making the policy choice at all.

Congress was simply clarifying how to implement the preexisting policy under 924(c), which is always imposed, for a section 924(c) violator, an additional separate mandatory minimum sentence.

But here is advice about how to do that.

Here is advice about how to do that internal to section 924(c).

Here is advice about how to do that external to 924(c) under 3559(c) and with a default rule for other similar provisions.

That is the -- the modest objective that Congress was attempting to achieve.

And as everyone agrees--

Justice Antonin Scalia: Excuse me.

For other provisions anywhere in the code?

I mean, regardless of whether those provisions are being prosecuted in this particular indictment?

I mean, you--

Mr. McLeese: --No--

Justice Antonin Scalia: --You are saying that the other side has to say: Well, it's only those that are in this particular criminal transaction, or only those in the particular indictment.

Do you escape that necessity?

Mr. McLeese: --I think we do, and the reason we do is because, in our view, this provision operates only when you are talking about prosecution for the same offense in double jeopardy purposes.

And so it's not possible for, under our submission, for the Government to prosecute somebody for one of these variants of section 924(c) and then come back again later and prosecute again and then manipulate the overall structure of sentences, because they are the same offense.

If you move outside that, into things that are not the same offense for double jeopardy purposes, then the prospects do open up for irrational patterns of outcome based on the order in which things are prosecuted, and in addition, irrational patterns of the mandatory minimums based on--

Justice Sonia Sotomayor: --So how is your reading different from Mr. Abbott's?

Mr. McLeese: --Mr. Abbott has two readings, and our reading differs from each of them.

The first of Mr. Abbott's readings is transactional in nature.

Ours is focused on the section 924(c) offense itself.

The second of our readings is -- the second of Mr. Abbott's readings is focused on a firearm, just the fact that a firearm is involved.

And again, ours is focused on the use of a firearm in a way that constitutes the section 924(c) offense.

So those are the differences.

But if I could just point out the other anomalies, there are two other anomalies that we have not yet touched upon.

One of them is that Petitioner's submissions create anomalous patterns of floors of statutory minimums, as we've discussed in the briefs.

If a defendant under Petitioner's submission, the principal submission, has committed a drug offense that carries a five-year mandatory minimum sentence and brandishes a firearm, it is -- carrying a seven-year minimum, the floor is 12 years.

If that defendant's drug offense is more aggravated and carries a greater sentence so that there is a 10-year mandatory minimum, the overall mandatory minimum, under Petitioner's submission, reduces to 10.

And there is the further anomaly that for offenses that are different, the Petitioner's submission is that the defendant will end up, although adjudicated guilty of a section 924(c) offense, with no sentence whatsoever.

There will be a free-floating adjudication of guilt.

And because the defendant, let's say, is a felon in possession and is sentenced under the Armed Career Criminal Act, when the judge goes to sentencing, the judge, on Petitioner's view, says: I will give you 15 years under the Armed Career Criminal Act; that triggers the except clause, and therefore, I impose no sentence whatsoever under section 924(c).

That also is an anomaly.

Chief Justice John G. Roberts: As Justice Breyer has pointed out, he can take that into account in figuring out what sentence he would want to impose beyond the greater minimum.

Mr. McLeese: That is true.

My point about the anomaly is just that it is very strange, to my knowledge unheard of, to have a judge go to sentencing and have a series of adjudications and to tell the judge as to one of them that it's not the greater or lesser included offense of another; you don't even need to impose a sentence on that adjudication.

The backdrop basic assumption is, on each of the adjudications, you impose a sentence.

Now, that is not true if offenses are greater or lesser or are the same offense, for double jeopardy purposes.

But under Petitioner's submission, that is true with respect to offenses like being a felon in possession of a firearm and being someone who violated 924(c) that are different offenses in double jeopardy law and have always been given separate judgments, separate punishments.

If the Court has no further questions, we would request that the judgements below be affirmed.

Chief Justice John G. Roberts: Thank you, Mr. McLeese.

Mr. Ryan, you have three minutes remaining.

REBUTTAL ARGUMENT OF JAMES E. RYAN ON BEHALF OF PETITIONER IN NO. 09-479

Mr. Ryan: I would like to make two points on rebuttal.

There has been a great deal of discussion about the general purpose of 924(c).

But as this Court has indicated, the best indication of a statute's purpose is the statute's language, and although the Government argues that the sole purpose of 924(c) was to enhance punishment for defendants, the except clause belies that simplistic assertion of the purpose.

The except clause actually mediates the punishment that is provided in 924(c).

The Government's reading, at the end of the day, wants to rely on purpose in order to give no effect to the except clause.

The idea that 3559(c) is an instruction to busy district court judges, even putting aside the impossibility of serving an additional sentence after completing a life sentence, doesn't hold up, because the Government never disputes the fact that 3559(c) begins with the statement,

"Notwithstanding any other provision of law. "

So the busy district court never needs to turn to the except clause in 924(c)(1)(A) to know that you impose a life sentence when the third strike is a 924(c).

Justice Samuel Alito: Whenever Congress uses a phrase like that,

"notwithstanding any other provision of law. "

does that mean that Congress must think that there is some provision of law that falls within that?

Mr. Ryan: Possibly, yes.

And here, the other provision of law would be 924(c), and--

Justice Samuel Alito: Doesn't Congress commonly do that to make sure that something covers any existing statute there might be that would fall within that, without necessarily saying: Well, there are two of them -- if there are two, maybe there are three?

Going through the entire code to find out how many there might be, or if there is any?

Mr. Ryan: --Yes, Justice Alito, and that is consistent with my point, is that--

Justice Samuel Alito: It is not consistent with your main argument about the except clause, is it?

Mr. Ryan: --Well, yes, it is, because the except clause would also apply to any other provision of law.

Justice Samuel Alito: No, but your argument is the except clause has to have some pretty substantial effect, or otherwise, the "any other provision of law" part of it -- otherwise, they wouldn't have put it in.

Mr. Ryan: Oh, I apologize.

I misunderstood your question.

The

"notwithstanding any other provision of law. "

in the context of 924(c), would not have any effect if the except clause was considered first.

But 3559(c) applies to many other triggering offenses and so with regards to those, and the Government has not suggested that 3559(c) has -- has no effect.

The last point I would like to make is that there is no doubt that regardless of one's view about mandatory minimum sentences as a matter of policy, no one doubts that Congress has the authority, if it chooses to exercise it, to stack one mandatory minimum sentence on top of another.

But as this Court's cases make clear, Congress, under the Rule of Lenity, needs to make that choice clear.

And if nothing else, the Government's shifting views indicate that Congress has not exercised that choice clearly in this case.

Chief Justice John G. Roberts: Thank you, Counsel.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned and will resume tomorrow at 10 a.m..

Print this transcript Transcript: 

Justice Ruth Bader Ginsburg: A federal criminal statute, Section 924(c) of Title 18, makes it a discrete offense to use, carry or possess a deadly weapon in connection with any crime of violence or drug trafficking crime.

The statute imposes a mandatory minimum sentence of five years to run consecutively to any other term of imprisonment imposed on the offender.

In 1998, Congress reformulated 924(c) in the name, to enlarge its scope and heighten penalties for violation of the provi -- provision.

Spotting the question we decide today, Congress also added a preparatory except clause.

The clause states that the five-year minimum sentence shall be imposed except to the extent that a greater minimum sentence is otherwise provided by 924(c) itself or by any other provision of law.

In unrelated cases, petitioners Kevin Abbott and Carlos Rashad Gould, each received a five-year sentence for violating 924(c) by possessing a firearm in connection with the drug trafficking crime.

Abbott's five-year sentence was imposed on top of a 15 year mandatory sentence for being a felon in possession of a firearm.

Gould's five-year term was added to a ten-year mandatory sentence for his drug trafficking crime.

Abbott and Gould contend that there are heavier sentences imposed for counts of conviction other than 924(c), each of them greater than five years, triggered the “except” clause.

The clause as they read it, exempts them from serving the additional five-year term specified for violating 924(c) by possessing a firearm in connection with the drug trafficking crime.

The courts below, at the second -- the U.S. Courts of Appeals for the Third and Fifth Circuits, rejected Abbott's and Gould's interpretations.

The “except” clause, those courts noted, refers to a greater minimum sentence otherwise provided.

“Otherwise provided for what?”

the courts asked.

They answered, “A conduct violating 924(c) that is, possessing a firearm in connection with a violent or drug trafficking crime.”

We affirm the judgments of the Circuit Courts.

The “except” clause we hold, applies only when another provision whether contained within or placed outside 924(c) imposes a higher mandatory minimum penalty for conduct violating 924(c).

As an illustration, the mandatory minimum sentence for a 924(c) offense is five years but if the firearm is brandished, the minimum rises to seven and if the firearm is discharged, to ten years.

A defendant who possess, brandished and discharged a firearm in violation of 924(c), would thus face a mandatory of minimum term of ten years, the penalty for firing a weapon.

But there is no stacking five years and seven on that added to 10.

And dispositive here, the defendant is not spared from serving a discrete 924(c) sentence by virtue of receiving a higher mandatory minimum on a different count of conviction in Abbott's case, being a felon in possession of a firearm and in Gould's, drug trafficking.

Rather a 924(c) violator is subject to the highest mandatory minimum specified for the conduct offending 924(c) unless another provision of law addressed to the conduct prescribed by 924(c), imposes an even greater mandatory minimum.

Our decision is unanimous.

Justice Kagan took no part in the consideration or decision of these cases.