924(c) Convictions and Career Offender Sentencing

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924(c) Convictions and Career Offender Sentencing

• Keith A. Williams

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INTRODUCTION
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• 18 U.S.C. 924(c) mandatory, consecutive
  sentences for using, carrying, or possessing a
  gun as part of a crime of violence or a drug
  trafficking crime
• Career Offender Guideline 4B1.1 long
  sentences for defendants with prior convictions
  for crimes of violence or controlled substance
  offenses

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• Recent changes in the career offender guideline
  give MUCH longer sentences to 924(c) convictions
  when the defendant is a career offender
• A few of us have been caught unaware . . .
  leading to weeping, wailing, and gnashing of
  teeth!

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SOME BRIEF HISTORY
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The Good Old Days

• A 924(c) conviction got a flat, mandatory
  sentence of 5, 7, or 10 years, consecutive to any
  other sentence for any other conviction
• 5 if you just carried the gun 7 if you
  brandished it 10 if you shot it
• The Guidelines said the Guideline sentence was
  the 5, 7, or 10 years given by 924(c)
• The Guidelines added career offender sentencing
  does not apply to 924(c) convictions

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The first change in 2000

• 924(c) amended to say not less than 5, 7, or 10
  years
• Which meant 5, 7, or 10 years was your minimum
• And life was your maximum
• The Guidelines were changed to say the
  Guideline sentence was the 5, 7, or 10 years
  given by 924(c). Anything higher would be an
  upward departure.
• The Guidelines added career offender still does
  not apply to 924(c) sentences.

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The second change in 2002

• The Guidelines were amended to say career
  offender sentencing DOES apply to 924(c)
  convictions in an especially harsh way
• Promulgation of this amendment reflects the
  Commissions decision that the amendment . . . is
  necessary to comply appropriately with the Act
  to Throttle the Criminal Use of Guns

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PRACTICAL APPLICATION

• (also known as avoiding the ineffective
  assistance claim)

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Exercise 1

• Defendant is facing a two-count indictment 1)
  bank robbery and 2) carrying a firearm during the
  bank robbery under 924(c)
• Defendant is a career offender, with 2 or more
  prior convictions for crimes of violence and/or
  controlled substance offenses
• Defendant pleads guilty to the 924(c) count, and
  the Government dismisses the bank robbery count.
  He gets 3 points off for acceptance of
  responsibility. What is his sentencing range?

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• Old law 60 months (absent an upward departure).
  
• New law 262-327 months

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• 2K2.4(c) - if the defendant is convicted under
  924(c) and he is a career offender, the guideline
  sentence shall be determined under 4B1.1(c)
• 4B1.1(c) - the applicable guideline range shall
  be determined as follows

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• (1) If the only count of conviction is 924(c),
  the applicable guideline range shall be
  determined using the table in subsection (3)
• (3) Career Offender Table for 924(c) Offender
• If no acceptance of responsibility
  then 360 - life
• If 2-point acceptance of responsibility, then
  292 365 months
• If 3-point acceptance of responsibility, then
  262 327 months

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Exercise 2

• Assume the same defendant pleads guilty to both
  the bank robbery and the 924(c) charge. What is
  his sentencing range?
• 4B1.1(c)(2) - 2 choices
• Behind door 1 add 60 months to the normal bank
  robbery guideline range for a career offender
• Behind door 2 use the draconian table shown on
  the last slide

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• Door 1
• What is the normal bank robbery guideline range
  for a career offender?
• Bank robbery has a max sentence of 25 years
• 4B1.1(b) for a career offender convicted of an
  offense with a max sentence of 25 years, use
  offense level 34 and criminal history category VI
• Minus 3 for acceptance of responsibility
• 31, VI 188 235 months
• Add 60 months 248 295 months

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• Door 2
• 4B1.1(c)(3) career offender table
• If no acceptance of responsibility,
  then 360 - life
• If 2-point acceptance of responsibility,
  then 292 365 months
• If 3-point acceptance of responsibility,
  then 262 327 months
• For our example 262-327 months

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• Two choices
• Door 1 has 248 295 months
• Door 2 has 262 327 months
• Use the one with the longer minimum
• Here door 2 262 327 months

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Exercise 3

• Defendant is charged with 1) conspiracy to
  possess and distribute more than 50 grams of
  crack and 2) brandishing a firearm in relation to
  a drug trafficking crime
• He is a career offender. He pleads guilty to
  both counts and gets 3 points for acceptance
• What is his sentencing range?

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• 4B1.1(c)(2) - two choices
• Door 1 add 84 months to the normal crack
  conspiracy guideline range for a career offender
• 84, not 60, because this is a brandishing
  example, not carrying
• Door 2 use the table from 4B1.1(c)(3) shown
  earlier

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• Door 1 Adding 84 months to the normal range
• What is the normal crack conspiracy guideline
  range for a career offender?
• Crack conspiracy (more than 50 grams) has maximum
  sentence of life
• 4B1.1(b) for a career offender convicted of an
  offense with a max sentence of life, use offense
  level 37 and criminal history category VI
• Minus 3 for acceptance of responsibility
• 34, VI 262 327 months
• Add 84 months 346 411 months

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• Door 2 Using the 4B1.1(c)(3) career offender
  table
• If no acceptance of responsibility,
  then 360 - life
• If 2-point acceptance of responsibility,
  then 292 365 months
• If 3-point acceptance of responsibility,
  then 262 327 months
• For our example 262-327 months

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• Door 1 346 - 411
• Door 2 262 327
• Use the one with the highest minimum
• Final answer 346 411 months

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CONCLUSION

• Point why plead guilty to this much time? Take
  these to trial!
• Counterpoint under the 4B1.1(c)(3) table, three
  points of acceptance reduces the minimum sentence
  from 360 months to 262 months (8-year reduction)
• Counter-Counterpoint 262 months is still 22
  years! Depending on your clients age, 8 more
  years might not make much of a difference