Transcript

IN THE SUPREME COURT OF THE UNITED STATES

THOMAS LEE DEAL, Petitioner v. UNITED STATES

No. 91-8199

March 1, 1993

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:02 a.m.

APPEARANCES:

DOLA JEAN YOUNG, ESQ., Houston, Texas; on behalf of the Petitioner.

MIGUEL A. ESTRADA, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

11:02 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 91-8199, Thomas Lee Deal v. the United States.

Ms. Young, you may proceed.

ORAL ARGUMENT OF DOLA JEAN YOUNG ON BEHALF OF THE PETITIONER

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

Thomas Lee Deal, the petitioner, committed six bank robberies in the Houston, Texas area during a 4-month period. In addition to being found guilty and sentenced for those bank robberies he was found guilty and sentenced for six counts of using a firearm during a crime of violence and for being a felon in possession of a weapon. At issue in this case is whether Mr. Deal was given notice that he would receive 20-year sentences on five of the six counts for using a firearm during a crime of violence pursuant to 18 U.S.C. 924(c).

Mr. Deal contends that his Fifth Amendment due process rights were violated because the rule of lenity was not applied when imposing the 20-year sentences under section 924(c).

QUESTION: It's your position, Ms. Young, that the rule of lenity is required by the Fifth Amendment?

MS. YOUNG: No, Your Honor, it is required by the rulings of this Court when a statute is ambiguous. So for that reason petitioner is asking this Court to construe the statute as imposing a 20-year sentence only if the offense is committed after a previous 5-year sentence has been, has become final. Such a construction is necessary because the language of section 924(c), specifically in the case of his second or subsequent conviction, is ambiguous for several reasons when both the language of the statute and the structure and operation of the statute are considered.

Turning to the language of the statute, the specific language at issue has two meanings, one of two meanings. It can be construed as multiple convictions occurring at the same time, or it can be construed as multiple convictions occurring in chronological sequence. Also --

QUESTION: Ms. Young, if you prevail here what will be the ultimate outcome? 30 years instead of --

MS. YOUNG: Of 105, yes, sir.

QUESTION: 105. So he is put away for 30 years anyway?

MS. YOUNG: Well, 30 years on the 924(c) counts, plus he received approximately 14 years on the bank robberies which was to run concurrently with 10 years for being a felon in possession of a weapon. So the total sentence would be approximately 44 years.

QUESTION: But the six counts were bank robbery, was it?

MS. YOUNG: Yes, sir, that was the crime of violence.

QUESTION: They were different dates and different places, I suppose?

MS. YOUNG: Yes, sir, they were. There were six bank robberies, there were four different banks, and two of the banks were robbed twice but at different dates, on different dates.

QUESTION: So if there had just been, if there had just been separate indictments for the six bank robberies, one indictment for each bank robbery, you wouldn't be here, I suppose?

MS. YOUNG: Yes, Your Honor, we would still be here because looking at the operation of the statute, the statute is in two parts. The first part, which calls for a 5-year sentence when a firearm is used during a crime of violence, is clearly an enhancement statute. That is the penalty is imposed for violation of another statutory provision.

QUESTION: But suppose the, there was a bank robbery by your client and he was indicted and convicted for it?

MS. YOUNG: Yes, sir.

QUESTION: And similarly for the other five. Wouldn't the statute apply, the enhancement apply there?

MS. YOUNG: No, Your Honor, because the second part of the statute, in the case of his second or subsequent conviction, is a recidivist statute, and that language, in the case of, is linking the second part of the statute to the first, and it's --

QUESTION: Well, when would enhancement ever apply?

MS. YOUNG: When the offense occurs after a previous sentence has become final.

QUESTION: Well, that's -- I thought I was posing that in my last hypothetical.

MS. YOUNG: The offense would have to occur after the previous 5-year sentence had become final. The hypothetical --

QUESTION: Oh, after, you mean after he had served the 5-year sentence?

MS. YOUNG: Yes. And that's because of the language in the case of, because it's referring back to that part in the first clause, that use of a firearm and receiving a 5-year sentence.

QUESTION: Wouldn't your argument be served going back to Justice White's hypo? If he had been sentenced to the 5-years enhancement and if for some reason he escaped from custody before being sent to prison and committed another bank robbery, wouldn't he be subject to the second enhancement for that even though he had not served the first one?

MS. YOUNG: Well --

QUESTION: Even on your theory that it's a recidivism statute?

MS. YOUNG: Well, I think we would have to look at the general policy of recidivist statutes, and that is for --

QUESTION: Well, I don't mean to cut you off there, but I just thought on your own argument that in the case that I give he would be subject to the second enhancement. Did I misunderstand you?

MS. YOUNG: The position is that the offense would have to have become final, the offense would have to occur after. And you are correct, because your hypothetical said that if he had been sentenced, he was in prison and he escaped. Then yes, you are correct, then for the bank robbery that occurred after the escape the 20 years would apply.

QUESTION: Okay.

QUESTION: Ms. Young, do we know that -- how do we know this is a recidivist statute? Maybe it's just a habitual criminal statute. You seem to think that the only reason for imposing greater sentences for the later crime is that this guy just doesn't learn from being in jail. Maybe another reason is, whether he has been in jail or not, people who are habitual criminals are worse than people who on one occasion robbed a bank. This guy robbed six banks, one after another.

MS. YOUNG: Well, we don't know that Congress intended this to be a habitual --

QUESTION: We don't know, so we have to look to the text, I assume. And what the text says, in the case of his second or subsequent conviction. It seems to me the most you can make out of that, the very most is that the first conviction has to have been final before the second, which means in Justice White's hypothetical you would have to say so long as he has been sentenced on the first count, when he is sentenced for the second count you are dealing with in the case of a second conviction and he should get the enhanced sentence.

MS. YOUNG: Well, given that situation we don't know which of the counts would be the second conviction. There is no notice of where the second conviction occurs.

QUESTION: Well, it means second in time, don't you think? What else could it mean? Second or subsequent. Subsequent --

MS. YOUNG: It could mean second in order or it could mean subsequent, take the meaning of subsequent, which would refer to later in time. But he had -- the problem is that Mr. Deal, a person in Mr. Deal's position would not have any notice of when that enhancement would apply, the 20-year sentence would apply.

The respondent I think concedes the ambiguity of this language by rewriting the statute in a manner that changes the language. Respondent's construction of this statute, which as I said is a rewrite, is that there would be 20 years for any subsequent offense, and that does not give effect to every clause and word of the statute.

If we look at the operation of the statute because the language itself is ambiguous, I would also -- I need to back up a minute to the language of conviction. That also goes to the ambiguity of the language because conviction, as this Court has noted in previous opinions, that the word conviction carries two different meanings and Congress has attached different meanings to different statutes. And there is no definition of the word conviction in the statute, so we would have to construe conviction as meaning a final judgment and not simply a finding of guilt, as the respondent would have us do.

Now, turning to the structure and operation of the statute, although the language is unclear we can glean some help from the structure in support of petitioner's construction. The first part is the sentence enhancement, that is it imposes an increased punishment for one convicted under another statutory provision. The second part is a recidivist statute because of the words in the case of, which clearly refer to a legal proceeding which introduces a stiffer penalty for one who has ignored a previous notice by way of a conviction. The --

QUESTION: You say -- what meaning is it you attach to the words in the case of?

MS. YOUNG: A legal proceeding.

QUESTION: Well why, don't we use the phrase in the case of very often just to identify a particular episode that doesn't necessarily have anything to do with a legal proceeding?

MS. YOUNG: Yes, we do, but as this Court has noted, when a term has more than one meaning and there is a meaning that is applicable in a legal sense, then the legal sense is the one that governs, and that would be the reason for construing in the case of as a legal proceeding.

QUESTION: And what case would you cite for the proposition that you just stated?

MS. YOUNG: That case comes, that comes from the case -- I don't have it on the tip of my tongue right now, but there is a case and it is cited in our brief for that proposition. The dependence --

QUESTION: So you would read the statute as if it said after conviction in a second or subsequent case?

MS. YOUNG: I would --

QUESTION: That's the way you would have us interpret the statute?

MS. YOUNG: I would read it after conviction --

QUESTION: In a second or subsequent case.

MS. YOUNG: If an offense after conviction, an offense that is sentenced in a proceeding after conviction would receive a 20-year sentence.

QUESTION: Well, actually you would say after conviction and after the sentence has been served?

MS. YOUNG: Yes.

QUESTION: Yes. But what you're applying that after to is not the later case. You're really reading it to say in the case of -- not in the case of his second or subsequent conviction, but you're saying in a case involving criminal activity, alleged criminal activity that occurred after his first conviction.

MS. YOUNG: That's correct, Justice Scalia.

QUESTION: You insist not just that the case be second, but that the criminal, alleged criminal activity upon which the case is based be second.

MS. YOUNG: That's correct.

QUESTION: That's -- I mean, I can follow you the first step, that the case has to be second, although I can't see why anyone would want such a disposition, why you would insist on six separate trials instead of one trial in order to get the enhancement. It makes no sense. Your disposition makes some sense, it turns this into a recidivist statute, but I don't see how you can get it out of the language. All it says is in the case of his second or subsequent conviction.

MS. YOUNG: That's exactly the point, Justice Scalia, that we don't get it from the language. We look at the operation of the statute and we look also at the fact that there are different sentences imposed, because it makes no sense to impose 5 years and 20 years at the same time. If Congress had wanted something like that to apply, Congress could simply have said 20, or 10 or 20 years for any offense where a firearm is used during a crime of violence. There is no real reason, it just doesn't make sense to have those different sentences imposed at the same time.

QUESTION: Well, it certainly could, I suppose. I mean, the district judge at sentencing in this case might say, after having sentenced on the first count, now I'm about to enter a second judgment of conviction. Therefore this is a case of a second judgment of conviction and therefore the 20-year provision applies. I mean, you can certainly read the statute that way.

MS. YOUNG: That is one possibility, but I think, as this Court has recognized, that a mere possibility, a mere construction is not sufficient to provide a person with notice. That is one possible reading of it, but again the issue is whether there is notice that the defendant, when he knows that he will be subject to the 20-year sentence

Respondent points --

QUESTION: Do you think the conviction word used in this enhancement provision refers to a criminal judgment?

MS. YOUNG: Yes, sir, I do. And that's for two reasons.

QUESTION: It's not return of the jury verdict?

MS. YOUNG: Not, absolutely not. For two reasons. One, the last part of the statute refers to convicted. The court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection. So therefore we would have to refer to that as a judgment. A finding of guilt also does not, a finding of guilt requires some indicia of finality, and just a simple finding of guilt does not require, it does not give a defendant any, it does not give the sentence -- excuse me. A simple finding of guilt does not provide an indicia of finality.

QUESTION: How about a finding of guilt plus a sentence?

MS. YOUNG: There there would be an indicia of finality.

QUESTION: Well, then if the judge, on the basis of the jury's verdict, says with respect to the first count, you know, I sentence you to 5 years, why isn't that then final if you agree with the question that I just asked you? So that when the time comes to impose the sentence on the second count, it is final since there has been not only a finding of guilt but a sentence.

MS. YOUNG: Then yes, you're correct, then it's final because the sentence has been imposed. But, as I stated earlier, the requirement to then turn around and do, impose a 20-year sentence, there is no notice and there is nothing in the language to support that.

QUESTION: Well, to what was your argument about lack of finality addressed, Ms. Young, because I assume from your answers that you have just given that you do not think that a jury verdict of guilt plus a sentence indicates lack of finality?

MS. YOUNG: It does not.

QUESTION: So wherein does the lack of finality occur that you object to?

MS. YOUNG: I don't recall which justice it was, but asked me if a conviction would refer to a finding of guilt, and that's when I responded that a conviction would not refer to a simple finding of guilt.

QUESTION: But a conviction would refer to a finding of guilt plus a sentence?

MS. YOUNG: Yes.

QUESTION: And in this case, Ms. Young, how many judgments were entered?

MS. YOUNG: One single judgment.

QUESTION: One judgment including, all the sentences on all the counts were incorporated in a single judgment?

MS. YOUNG: Yes, sir.

QUESTION: So you say in this case there was one conviction, as you define the term?

MS. YOUNG: That's correct. Respondent --

QUESTION: But the trial court could have changed all that on the basis of the same jury verdict had he simply entered six judgments?

MS. YOUNG: That would not be proper, Your Honor. I don't think that that would solve --

QUESTION: Well, should it then depend on whether or not there was one judgment based on six convictions or six different judgments based on six findings of guilt?

MS. YOUNG: I'm sorry, I did not follow your question.

QUESTION: Well, ought the outcome in this case, whether your client is sentenced to 40 years, as you say he should be, or 105, ought it to depend on whether the trial court says I am going to enter six different judgments here because there have been six different findings of guilt by the jury, or if he says there have been six different findings of guilt by the jury but I am going to enter just one judgment?

MS. YOUNG: No, because then that still does not take care of the notice requirement that a defendant would not know when he would be subject to that 20-year sentence. And I think, as respondent has pointed to 21 U.S.C. section 962(b) as an example of what Congress can do to overcome this particular problem, and that is an example of what Congress can do, but that statute was enacted 2 years after 924(c), and 924(c) was the first attempt that Congress made to resolve this issue. And Congress made a deliberate choice of words to say subsequent conviction and not subsequent offense, as it had in other statutes earlier, and I think this is because Congress was struggling with a different situation. And also the fact must be noted that this statute was passed in great haste when compared to other recidivist statutes.

QUESTION: Subsequent offense would be better for your position, wouldn't it, I mean if it had read subsequent offense it would make your argument easier, I assume?

MS. YOUNG: If it had read subsequent offense, I don't think so, because that's the exact structure that the Government is relying on in order to get this 105-year sentence, because the Government says for any subsequent offense then it's 20 years. And so then no, it would not help my position.

QUESTION: May I ask you, following up on the Chief Justice's question, what is your experience? Do the trial judges normally enter separate judgments on each of several counts or do they generally enter one judgment covering the whole case?

MS. YOUNG: It has been my experience one judgment covering the whole case.

QUESTION: Isn't your strongest argument that the ambiguity simply in here is in the word, in the referent to the word subsequent? You don't know whether it means subsequent to, an offense subsequent to another offense or an offense subsequent to a prior conviction. That's your ambiguity argument, isn't it?

MS. YOUNG: Yes, sir. Another --

QUESTION: Well, but no. You want to go further than that. You want to say it has to be subsequent to serving a sentence. The options are not conviction or offense, subsequent to a prior conviction or subsequent to a prior offense. That won't satisfy you. You insist that it be subsequent to serving the sentence from the prior conviction. Isn't that your position?

MS. YOUNG: No, because as one of the other justices pointed out, if the person had been incarcerated and escaped and committed an offense, then the 20 years would be applicable in that situation.

QUESTION: You have to have at least begun to serve your sentence, is that it?

MS. YOUNG: That's correct, Your Honor, because that puts you on, the imposition of the sentence puts you on notice for any subsequent offenses.

QUESTION: Not the imposition of the sentence, the serving of the sentence.

MS. YOUNG: Well, correct. Well, I am assuming that once it's imposed you begin to serve it. But --

QUESTION: Immediately. You're immediately in custody. Well then, then if you sentence the person in six separate counts, one after another, he immediately begins serving the first count as soon as you sentence him.

MS. YOUNG: But then the offense has not occurred --

QUESTION: The offense hasn't occurred yet.

MS. YOUNG: Another aspect --

QUESTION: Of course that is inconsistent with your own interpretation of the second use of the term conviction, where the statute directs that the sentence not be suspended. It's a very odd result to say you can't suspend a sentence until after the sentence has been served. I mean, that doesn't make any sense.

MS. YOUNG: You could not suspend --

QUESTION: Well, you were arguing that the second use of the word conviction in the statute, which says that the judge shall not place on probation, the court shall not place on probation or suspend the sentence of any person convicted, has bearing on the definition of the word conviction in the statute. It's a very strange construction to say that he cannot suspend the sentence until after the sentence has been completed. So therefore the use of the term conviction cannot comprehend the serving of the sentence or that sentence just doesn't make any sense.

MS. YOUNG: That's -- I did not say it would require the serving of the sentence. I thought that I was saying that the imposition of the sentence in response to Justice Scalia's question.

QUESTION: Yes, because you answered an earlier question of mine in which I posed the situation in which the individual is sentenced and immediately escapes. He runs out of the courtroom and commits another robbery. In that case you agreed that the 20-year enhancement could be applied when he was convicted for the second offense.

MS. YOUNG: Yes, sir, I did.

QUESTION: Okay.

MS. YOUNG: Another aspect of the structural ambiguity lies in the fact that it was almost 20 years before prosecutors leaped to this interpretation. The statute was enacted in 1968 and it was 1987 before we saw an issue of this type come before the courts. Prosecutors across the country conceded to two or three consecutive 5-year sentences being imposed even as late as 1991. There are some cases cited in the brief to that effect. The split in the circuits also attests to the structural ambiguity.

And finally, the respondent concedes by asking this Court to construe this statute in a manner that no other recidivist statute operate, and it would make this statute very different from any, the operation of any other statute of its kind. Respondent's construction is an anomaly for five reasons. One, it changes the language of the statute. It changes, substitutes offense in for conviction, and substitutes any subsequent for second or subsequent. Two --

QUESTION: Why isn't it enough for you to say, well, second or subsequent conviction means second or subsequent judgment? And there was only one judgment here so why shouldn't you win?

MS. YOUNG: That we would also win if it said second or subsequent judgment, because there was only one judgment.

QUESTION: Well, it does say second or subsequent judgment because it says second or subsequent conviction.

MS. YOUNG: But then it does not take into effect the relationship to the first part --

QUESTION: But I don't know why you want to win more than you have to to win your case here. There is only one judgment. There is not a second or subsequent judgment on which there can be an enhancement. Why isn't that enough to solve your case?

MS. YOUNG: That is true in this case, Your Honor.

QUESTION: Maybe you haven't argued that because it makes it really a very silly statute. It means that you can give this person 100 years if you bring six separate prosecutions, but you can't if you join them all in one. That doesn't make much sense at all.

MS. YOUNG: No, it does not, and that -- in construing the statute I think the Court would need to be, we'd need to look at that. That is not the situation that Mr. Deal faced, but it is, it sort of makes it irrelevant that we're even here if that is the construction that the Court gives the statute.

If there are no other questions, I'd like to reserve my remaining time for rebuttal.

QUESTION: Very well, Ms. Young.

Mr. Estrada, we'll hear from you.

ORAL ARGUMENT OF MIGUEL A. ESTRADA ON BEHALF OF THE RESPONDENT

MR. ESTRADA: Thank you, Mr. Chief Justice, and may it please the Court:

Mr. Deal was found guilty of using a gun in six different bank robberies on six different dates. The district court sentenced him to 20 years on each count on which he was found guilty of using a gun, save for the first, finding that each of those counts was a second or subsequent conviction under section 924(c). Eight of the nine courts of appeals that have considered that issue have agreed with the district court --

QUESTION: What do you think a conviction is?

MR. ESTRADA: A conviction is a finding of guilt by a court or jury, Justice White.

QUESTION: Or jury, you think.

MR. ESTRADA: Yes.

QUESTION: So that the conviction happens when the jury verdict is returned?

MR. ESTRADA: That is right, or when a plea of guilty is entered.

QUESTION: You don't have to enter a judgment on it before there is a conviction?

MR. ESTRADA: Not as the word is used in context in this case.

QUESTION: Well, what did we say in Dickerson?

MR. ESTRADA: In Dickerson the Court was dealing with section 922(g), which is part of the same chapter where section 924(c) is now. And the term in Dickerson was that someone who had been convicted of a felony was not allowed to have a firearm. The word --

QUESTION: Well, and we said conviction meant it didn't occur with the entry of the plea, but only after the sentence and judgment were imposed.

MR. ESTRADA: With all respect, Justice O'Connor, that is in fact not what the Court said. The Court at page 111, if I recall, said that all that was necessary was the entry of the plea and more was not required, and those were the words that the Court used. As it happens --

QUESTION: Well, even if you say the conviction occurs with the return of the jury verdict, there was only one conviction here. The, there was only one verdict. One verdict came in. There wasn't a second or subsequent conviction in the sense of a second or subsequent jury verdict, was there?

MR. ESTRADA: No. That is not right, Justice White, for the following reason. The statute uses the word conviction under this subsection, which means a finding of guilt under this subsection, and there were six different findings of guilt by the jury under section 924(c). Each of them was a conviction under the statute.

QUESTION: Yes, but it wasn't a second finding, was it?

MR. ESTRADA: Well, the word second in this --

QUESTION: So you rely on second rather than subsequent?

MR. ESTRADA: No, we think that each of the two terms has a distinct meaning in the statute, Justice White. The word second in everyday language means the number two in a countable series or what follows the first, either in time or in number sequence. The word subsequent in this context means what follows the second, either in time or in number sequence, and it is just a proxy for Congress to have said third, fourth, fifth, sixth, et cetera.

QUESTION: So the jury must have, the jury couldn't have considered all counts at the same time, so at least they had to consider them separately and so their finding of guilt on each, for each bank robbery, they were -- some were later and some were earlier.

MR. ESTRADA: The significant point is that they made seven different findings of guilt under section 924(c), and that is all that the statutory language calls for in this case, Justice White. Those are, five of those are second or subsequent convictions under the plain terms of the statute.

I think the most significant and salient point about the case is that this is a dangerous person statute. It is not in anyway a recidivist statute. The structure of the language, and especially the scale of penalties in section 924(c) make that very clear.

QUESTION: Why wouldn't that be clear if the enhancement were the same in each instance, but in this case the enhancement is 4 times for the second or subsequent what it is in the first, which indicates that it's something other than just a dangerous person statute, isn't it?

MR. ESTRADA: That is not right, Justice Souter, because the first sentence of the statute makes clear that what Congress is doing in the statute is two things. It is looking to identify persons who do even one crime with especially dangerous weapons, and also looking to identify those who do dangerous or even more dangerous crimes more than once. Even a first --

QUESTION: Well, when you get into comparative danger you are getting into recidivism, aren't you? In other words this is a person who does not learn from his offense.

MR. ESTRADA: That is not necessarily so as a general matter, Justice Souter. That is not so in this statute. Under this statute even a first crime carries a mandatory penalty of 30 years imprisonment if the firearm used is equipped with a silencer, if it is a machine gun, or under the most recent changes, if the firearm is a bomb or any similar explosive. And Congress has made a judgment that those types of activities are so dangerous that even someone who does that only once, and for the very first time in his life, should be subject to the 30-year mandatory sentence.

We think that the second or subsequent clause that immediately follows is written in the same vein, and simply seeks to identify a particularly dangerous class of criminals, those who would use a gun to do a crime more than once and who thereby place at risk the lives of other people every time they do so.

What Congress in effect is saying to those persons is if you are the type of person who would do a crime with a gun more than once you are just too dangerous to have around and you must be separated and incapacitated from society.

QUESTION: Mr. Estrada, is Ms. Young correct when she told us that from 1968 to 1987 the prosecutors did not read the statute this way?

MR. ESTRADA: That is not right in the sense that the issue did not come up in a litigated case until 1987.

QUESTION: You mean in all those years there were no charges where the defendant had robbed more than one bank?

MR. ESTRADA: The issue wouldn't be really --

QUESTION: I mean, obviously it wasn't appealed on this issue if the practice was always to do as she says the right reading of the statute is. But was that, I'm asking you do you think that was the practice or do you know?

MR. ESTRADA: I don't know, and I think that the reason it did not come up is because until the mid eighties the penalties for a first and/or second were quite close to one another. They were 5 and 10. And in fact there were --

QUESTION: But you're telling me you really don't know what the practice was?

MR. ESTRADA: That's correct.

QUESTION: But she is correct that it wasn't litigated until 1987?

MR. ESTRADA: It was not -- the first court of appeals case dealing with the issue was Rawlings coming from the circuit in Florida, the --

QUESTION: Eleventh Circuit.

MR. ESTRADA: Right.

QUESTION: In 1987.

MR. ESTRADA: In 1987.

QUESTION: 19 years after the statute had been passed.

MR. ESTRADA: 19 years. And for most of that time, Justice Stevens --

QUESTION: Rather strange.

MR. ESTRADA: -- the important point is that the penalty ranges with the first few years were overlapping.

QUESTION: Were not sufficient to justify a defendant having an interest in appealing if he wanted to challenge this statute.

MR. ESTRADA: Well, there were two different issues, Justice Stevens. For part of the time the statute was written in a way where the sentence was not fixed. There were two ranges, and the ranges were overlapping. That is the first problem. So there was a measure of discretion in the district court to give a slightly different sentence.

The second issue is that even when Congress changed that --

QUESTION: When was that? When did it eliminate the overlapping?

MR. ESTRADA: I think they did that in the early eighties.

QUESTION: Okay.

MR. ESTRADA: Justice Scalia. I beg your pardon.

QUESTION: I just wanted to get the date. Please finish the sentence.

MR. ESTRADA: And following that the range was 5 under the first clause and 10 under the next, so it was not the type of issue that would be actively litigated because even though it obviously mattered it didn't matter as much as it does now. It was not until --

QUESTION: You mean you didn't think a defendant would appeal a 10-year enhancement but he would appeal a 30-year enhancement? That's what you're saying in effect?

MR. ESTRADA: Well, I think that he is more likely to take issue with the plain meaning of the statute if more turns on it than not. I think that is right.

The next point I was going to make in reference to what counsel said is that it is not the case that there were other cases in which the Government stipulated to a lower sentence by reason of any view it had of the second or subsequent clause. The cases it cites, one from the Tenth Circuit and one from the Ninth, both deal with a different problem that is not raised in this case and which is logically antecedent to the problem in this case, which is what the unit of the offense is under section 924(c), specifically whether using multiple firearms to do a single crime is a single or a multiple crime under section 924(c). And in those, based on guidance from this Court in Busic and from what the courts of appeals have told us, we have taken the view that if a person uses more than one firearm to do a single crime of violence, that is a single crime under section 924(c).

Those are the cases that she is pointing to, and those raise an entirely different issue that is not raised in this case because it is conceded here that he is guilty of six different 924(c) crimes.

Now, the important point about 924(c), as I was saying earlier, is that this is not a recidivist statute but a dangerous person statute.

QUESTION: I suppose, Mr. Estrada, that if a person robs a single bank on a single day and takes both money and Government securities as part of the hold up and there are two counts, that the consecutive sentence rule or the enhanced sentence rule would apply here?

MR. ESTRADA: It is generally the case, Justice Kennedy, that if a person is guilty of two crimes of violence that he does as part of the same episode, it is true that two 924(c) crimes could be charged. I don't understand the facts that you gave me as really raising that, because I don't think that the separate taking of the bonds as part of the same bank robbery would necessarily be a separate crime of violence.

QUESTION: Well, suppose there were two counts charged. I certainly think that it would be more serious to take bonds and money than just money. Suppose two counts were charged. What would be the result under this statute?

MR. ESTRADA: I am answering yes to your question, Justice Kennedy. If a person, as part of a single criminal episode, is guilty of more than one crime of violence or drug trafficking crime, it is in fact the case under our reading of the statute that if he uses a firearm with respect to each of those crimes and thereby makes more grave each of them, that he would be subject to two separate counts under section 924(c).

QUESTION: Even though it's really one episode.

MR. ESTRADA: That is right. And in other circumstances where Congress has thought that type of a circumstance significant, for example in section 924(e), it has expressly stated that the crimes must be, must happen on occasions different from one another. And Congress knows fairly well to write, how to deal with that type of issue if it thinks it should make a difference.

With respect to whether this is in fact a statute that is designed to teach a person a lesson, as I stated earlier, it is not. It is a dangerous person statute. And in fact it bears very little resemblance to a true recidivist statute. When Congress has enacted a true recidivist statute it has generally been quite explicit about the level of finality that a conviction must have attained in order for it to count under that statute. And I think all of the several statutes that we have cited in title XXI in the narcotics area are fairly instructive on that score.

In addition, it would be an odd recidivist statute that asks not only whether the defendant had served time in jail before for any crime or whether he had served time in jail for a state or Federal crime of the same general type as he is now charged with, those are clearly the case here, but which asks whether he had served that time in jail under this subsection of this statute and no other. And that is a very strange version of a recidivist statute.

QUESTION: Mr. Estrada, do you take the position that there is no ambiguity whatever in this statute?

MR. ESTRADA: Well, there is none as to the issue raised in this case, Your Honor. It is certainly --

QUESTION: Well, I'm asking you about the statute. Is it, is there no ambiguity in the meaning of the term conviction?

MR. ESTRADA: None as used in this statute. We readily concede that with every other word, that as with every other word in the English language it is possible that each of the words used conceivably might have a different meaning. What is important and dispositive in this case --

QUESTION: How about the term in the case of a second or subsequent?

MR. ESTRADA: There is no ambiguity whatever in those words. The thought that in the case of, for example, might mean in the legal case of makes no sense for three reasons. The first one is that the most natural reading of the words in the case of is simply in the event of, and that is how the expression is used in everyday language.

The second one is that even reading the word case to mean legal case doesn't really do anything for Mr. Deal's case unless he also adds words like involving or similar words, as he does in his reply brief I think at page 7, whose purpose is essentially to nullify the choice of tense that Congress placed into the statute. It is those words, which are in essence fudge words, that really do the work for the alternative version of the statute that is being urged.

And finally, that reading wouldn't make sense as well because saying that case means legal case would turn the result of each case on how counts are joined in that case by the Government. That would be an unusual reading of a sentencing statute because sentencing statutes usually deal with the defendant's conduct, to what he did, not to how he was charged and tried. And all of those reasons I think clearly indicate that the plain meaning of the words in case of is simply in the event of.

QUESTION: How about the word subsequent?

MR. ESTRADA: Again, I think it is possible to read the word subsequent in isolation to have more than one meaning. Our submission in this case, Justice O'Connor, is that each of the words second or subsequent take meaning from the other and make the context clear. For example, it is a possible meaning of the word second that it is the sixtieth part of a minute. No one has ever said that that might be the meaning in this case for the obvious reason that everyone understands that in this context that can't be the meaning.

Again, we think that as used in the statute the expression second or subsequent really means another finding of guilt at any time after the first.

Finally, as to the word conviction --

QUESTION: Excuse me, after the first in time? It must be after the first in time, and not just in addition to the first?

MR. ESTRADA: No, I think it can mean in addition to the first. In order or in time, or at any time. But I think that given our reading of the word second to mean what its plain language says, something that follows the first either in time or in number sequence, or simply the number 2 in a countable series, it is the case that it can be in time or in order and the statute clearly encompasses both.

As I was about to turn to the following -- excuse me, to the final word that is of consequence here, Justice O'Connor, which is the word conviction, again we readily concede that there may be other contexts in which the word taken in isolation might mean a judgment of conviction. In this case it is clear from the context that its ordinary rather than its technical meaning is intended. The statute by its plain terms sets forth a chronological order in which events are to occur. Before a 20-year sentence may be imposed there must be a second or subsequent conviction. The statute therefore makes it clear that the, excuse me, that the conviction must come before the sentence, and therefore conviction cannot mean a judgment which already incorporates a sentence.

Now, I think the Government --

QUESTION: I assume that would only be a problem for the second one. After the second one you would be okay, right?

MR. ESTRADA: Well, I think it's a problem for any of them, Justice Scalia.

QUESTION: Well, you would have two before. I mean, with the second one -- well --

MR. ESTRADA: Certainly. We think that our submission as to the meaning of the statute is also reinforced by the history of section 924(c) because, as this Court indicated in Busic and in Lewis, the Gun Control Act of 1968 in general and section 924(c) specifically were passed in 1968 in response to an unprecedented wave of assassinations, riots, and violent crime. Since 1968 Congress repeatedly has thought, sought, excuse me, to turn the screw on armed violent crime, to single out those instances of armed conduct that give rise to intolerable risks to human life.

By and large the changes that Congress has made to the scope of the statute since 1968 or to the scale of its penalties, including its 1984 decision to change the result in Busic, manifest an attitude not of leniency but of increasing severity toward this very serious problem.

The second or subsequent clause in our view is a plain dangerous person statute and is not different from those other steps that Congress has taken. With the sole exception of the Tenth Circuit, every court of appeals to consider the issue that is raised here has discerned Congress' intent from the clear language of section 924(c), and because that language is indeed clear we ask that the Court affirm the judgement of the Fifth Circuit.

QUESTION: May I just ask one more question? Would you agree that if one should read the word conviction to mean judgment, that then the judgment has to be reversed?

MR. ESTRADA: I cannot agree with that, Justice Stevens, for the reason that we have taken the view that if one were to read the word conviction to mean a judgment the statute would make no sense. And if we were not told anything more than is in your question right now we would not know what follows from that decision.

QUESTION: Well, you would know there have to be at least two judgments, because it has talked about a second or subsequent conviction or judgment. I suppose one judgment could not satisfy the requirement of needing a second or subsequent judgment.

MR. ESTRADA: On that theory, and if that were all the Court said, Justice Stevens, the judgment would be vacated and sent back to the district court where we would move to sever the sentences.

QUESTION: But you would agree there would have to be some, at least have to be sent back to the district?

MR. ESTRADA: There would have, on that reading --

QUESTION: You'd have to do that in every case where the district judge made a mistake of entering just one judgment.

MR. ESTRADA: That's correct.

QUESTION: Which is what normally happens at the end of criminal trials.

MR. ESTRADA: Well, that is what does normally happen at the end of what happens in the district court.

QUESTION: One piece of paper entitled judgment, I suppose, could, you could say that that really is several judgments because he has entered judgment on several counts.

MR. ESTRADA: That is right, Justice White, and I think the, how that is treated tends to vary from district to district. Ms. Young indicated that in her district this is thought of as a single judgment. I formerly worked in a different Federal district in New York City where the document was called a judgment and commitment order, and it was thought there to incorporate several judgments as to each of the counts. So I think this is a matter that is thought of differently in every district.

QUESTION: Because on your, if I recall, your argument is that judgment can never mean final judgment here because that doesn't occur until after the sentencing and therefore you would have the anomaly of having an addition to the sentence after the sentencing was complete and judgment had been entered.

MR. ESTRADA: Right. That the statute as written, and especially in light of the tense Congress chose, would make no sense because whereas the statute sets forth a clear order in which events are to occur and that therefore dictates that the conviction must come before the sentence, you would be reading the word conviction to include the sentence, which in this context we think would make no sense.

QUESTION: Certainly the Federal Rules of Criminal Procedure contemplate that the judgment will occur after the sentence.

MR. ESTRADA: That is right. Federal Rule 32(b)(1) says exactly that, Mr. Chief Justice.

If there are no other questions we will rest on our briefs. Thank you.

QUESTION: Thank you, Mr. Estrada.

Ms. Young, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF DOLA JEAN YOUNG ON BEHALF OF THE PETITIONER

MS. YOUNG: I would begin by taking issue with Mr. Estrada's position that conviction means a finding of guilt. As Justice O'Connor questioned this Court's opinion in the Dickerson case, Dickerson does require an indicia of finality. And Mr. Estrada referred specifically to page 111 as support for his position that it's a finding of guilt. However, on that page the Court also noted that of significance was that the, that Mr. Kenneson was placed on probation even though sentence had not been imposed. There was an indication of finality from the fact that he was placed on probation.

QUESTION: What you had there, was it not, Ms. Young, was a plea of guilty? No finding of guilt and no sentence, but placing on probation?

MS. YOUNG: Yes, sir.

QUESTION: And the Court said that's enough to amount to a conviction?

MS. YOUNG: Yes, sir. And there was not just simply a finding of guilt in that case.

QUESTION: But there was not any finding of guilt in the case.

MS. YOUNG: Well, that's true. There was not any finding of guilt because it was a deferred adjudication type case. The statute is ambiguous --

QUESTION: Well, I guess Dickerson does point in the direction that supports Mr. Estrada more than it supports your view that there has to be a sentence actually imposed.

MS. YOUNG: It does not require that sentence has to be actually imposed, you are correct, Justice O'Connor.

QUESTION: Right.

MS. YOUNG: However, I think that it does not support Mr. Estrada's position that simply a finding of guilt is sufficient for a conviction. The Dickerson case, I might also note, was a civil case and not really a criminal case, so there is just some indication of support. It's not exactly on point.

QUESTION: Well, we do have here ultimately a determination by the judge on each count that there is guilt and the imposition of a sentence on each count. We do have that here.

MS. YOUNG: This was a jury trial, and the jury found Mr. Deal guilty on each count.

QUESTION: Yes, but then the judge followed through and imposed a sentence separately on each count.

MS. YOUNG: That's correct. Yes.

QUESTION: So for your purposes we just have to come to grips with any ambiguity perhaps in the case of any second or subsequent --

MS. YOUNG: That's correct.

QUESTION: -- the meaning of that language.

MS. YOUNG: Yes, Your Honor. The change, Mr. Estrada referred to changes in the statute, and there have been several amendments to the statute since 1968, but I would point out to the Court that none of those amendments have dealt with this particular language and there has been no further elucidation or any changes to this specific language.

Due process is required from the law and the indictment, and not just from merely splitting the indictments. So splitting the indictments still does not address the issue of the due process in this case.

I would also point out the, in reference to dangerous people, 18 U.S.C. section 924(e), which is also a part of the Gun Control Act, is similar to 924(c) in that they are both designed to eliminate the use of firearms and get them out of the hands of dangerous people. 924(e) also uses the word conviction and does not define conviction. This -- thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Young.

The case is submitted.

(Whereupon, at 11:58 a.m., the case in the above-entitled matter was submitted.)