Court unanimously holds that double jeopardy bars convictions for two firearm offenses

In Barrett v. United States, the court held in an opinion by Justice Ketanji Brown Jackson that the Constitution’s double jeopardy clause prohibits a defendant from receiving two convictions for a single act that violates two closely related federal firearm offenses, 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 924(j).

In reaching that result, the court applied, and did not alter, its interpretation of a nearly century-old unanimous Supreme Court case, Blockburger v. United States. Blockburger established a test for deciding when multiple punishments may be imposed for a single criminal event. Under Blockburger, a court must compare the elements that the legislature has specified are to be proven for each of two crimes and then determine whether the elements of each offense “requires proof of a fact which the other does not.” If Blockburger’s test is satisfied, courts presume that the legislature intended to create separate crimes carrying separate punishments. But when, as here, one offense requires proof of only a subset of another crime’s elements, courts must presume under Blockburger that Congress did not mean to permit multiple convictions and punishment, unless it is clear that Congress intended otherwise.

The court’s decision in Barrett therefore boils down to a single question: is it clear that Congress intended for a defendant to receive simultaneous convictions under Section 924(c)(1)(A)(i) and Section 924(j) when the elements of the first offense are a subset of the elements of the second offense? Looking to the statutory language and structure, the court concluded that Congress did not provide clear enough evidence of its intent that two convictions could be imposed for the same act to overcome Blockburger’s presumption.

Looking at the language

Because the government and Barrett agree that separate sentences under these provisions are not permitted for the same conduct, the Supreme Court appointed Luke McCloud, a former assistant to the U.S. solicitor general and a partner at Williams & Connolly, as an amicus, or “friend of the court,” to defend the judgment of the U.S. Court of Appeals for the 2nd Circuit holding that Barrett could receive separate convictions and sentences under Sections 924(c) and 924(j) for the same conduct.

The statutory language was, of course, the principal consideration. Section 924(c)(1)(A)(i) prohibits possessing, using, or carrying a firearm to advance either a crime of violence or a drug-trafficking offense. Section 924(j) requires proof that the defendant violated Section 924(c)(1)(A)(i) plus proof that the defendant “in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

The principal argument for overcoming Blockburger’s presumption relied on language in Section 924(c) that says that, when a defendant is convicted of a Section 924(c) offense, the sentence must run consecutively to the sentences for other offenses, including the underlying crime of violence or drug-trafficking offense. Several provisions make that point, but one was presented by amicus as especially relevant: Section 924(c)(1)(D)(ii) says that, “[n]otwithstanding any other provision of law … no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term if 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.” A Section 924(j) conviction and sentence, the amicus argued, falls within “any other term of imprisonment.”

But the court held that this language does not address when separate convictions are allowed; it merely says that consecutive sentences must be imposed when there are valid separate convictions. According to the court, “[o]nly if two convictions may coexist does a court consult the consecutive-sentence mandate, to arrange properly the resulting sentences.” The court continued that just one provision addresses whether separate convictions may stand. Section 924(c) states that a defendant “shall in addition to the punishment provided for such crime of violence or drug trafficking crime” receive the Section 924(c) sentence. This language has long been understood to overcome Blockburger’s presumption and ensure that a defendant is convicted of both a Section 924(c) offense and the underlying crime of violence or drug-trafficking offense. But, in the court’s view, the language cannot plausibly reach Section 924(j) because the text refers specifically to the “crime of violence or drug trafficking crime” as imposing “punishment” in addition to the Section 924(c) conviction.

The court also rejected that the broader statutory structure sufficed to overcome Blockburger’s presumption against multiple punishments. In defense of this point, the amicus pointed to the punishment scheme of Section 924(c) versus Section 924(j). Section 924(c) carries a series of mandatory minimums that increase from a base level of five years to seven years if the firearm is brandished to ten years if the firearm is discharged. These enhancements serve as additional offense elements because a jury must find that they apply. In Lora v. United States, the court addressed whether Section 924(c)’s mandatory minimums and consecutive-sentence requirements govern Section 924(j) and held that they did not. Thus, the amicus argued that it made no sense for the more serious offense, Section 924(j) – which requires proof that the firearm use caused a death – to carry no mandatory minimums, have no consecutive-sentence requirement, and eliminate via the double jeopardy clause the Section 924(c) offense. Rather, according to the amicus, Congress must have intended to overcome the Blockburger presumption and leave the Section 924(c) conviction in place, just like the underlying crime of violence or drug-trafficking offense.

Once again, the court disagreed, concluding that outcome essentially followed from its ruling in Lora.

Implications

The combined effect of Lora and Barrett have the practical effect of leaving the government with very little reason to charge persons under Section 924(j) unless it is seeking a death sentence. If the government is not seeking a death sentence, Section 924(c) has many advantages. It carries a series of mandatory minimums, requires those minimum sentences to run consecutively to other sentences, and does not require proof that the firearm caused a death. It also unambiguously preserves the underlying crime of violence or drug-trafficking offense as a separate conviction, carrying a separate sentence.

This last point is significant after Barrett. Under Barrett’s reasoning, when the government convicts a defendant of a Section 924(j) offense, the double jeopardy clause prevents the defendant from having a conviction for both the Section 924(j) offense and the underlying crime of violence or drug trafficking offense. That is true because the language in Section 924(c) that allows a separate conviction to stand for the underlying crime of violence or drug-trafficking offense (and rebuts the presumption in Blockburger) does not apply to Section 924(j).

Why does it matter whether the underlying crime of violence or drug-trafficking offense remain? In recent years, legions of cases have had a Section 924(c) or (j) conviction invalidated because the definition of what counts as a valid underlying crime of violence for those offenses has narrowed. (Indeed, Barrett’s own case illustrates that.) In a very large share of these cases, after the Section 924(c) or (j) conviction is vacated, the defendant is then resentenced on the remaining underlying crime of violence or drug-trafficking offense. But now, for cases where the Section 924(c) offense caused a death and was charged under Section 924(j), the underlying crime of violence will not have remained.

The government may have ways to resist a defendant walking away with no conviction. But the difficulty of predicting the future of crime-of-violence standards, and the risk that a defendant’s Section 924(j) conviction may be invalidated in the future – leaving no remaining conviction – further creates a significant incentive after Barrett to prefer Section 924(c) over Section 924(j).