Squaring the circle: reconciling clear statutory text with contradictory statutory purpose in United States v. Whitley.

• Author: Denton, David

Since the Supreme Court struck down the New Jersey Hate Crime Statute in Apprendi v. New Jersey, (1) federal courts have increasingly resisted mandatory sentencing regimes. From Apprendi to Booker (2) to Kimbrough (3) and Gall, (4) the courts have progressively increased their own discretion at the expense of uniform systems established by Congress. In United States v. Whitley, (5) the Second Circuit continued this trend by depending on judges to ensure equity and uniformity in sentencing enhancements for using firearms under 18 U.S.C. [section] 924(c). Although prior cases focused on constitutional claims, the Whitley court tackled a challenge of statutory interpretation. Confronting a statute containing plain text that starkly departed from Congress's apparent intent, the Second Circuit rejected the intentionalism of other circuits, choosing instead fidelity to the words that Congress chose, however improvidently. Unfortunately, the opinion failed to acknowledge the resulting "absurdity" that will result from straightforward application of the statute because of its confident reliance on judges to implement congressional intent on a discretionary basis. Instead of pretending that Congress did not err in drafting the statute, the Second Circuit should have attacked the legal chimera head-on, remaining loyal to the text as much as possible but alerting Congress that it had created a dilemma and should amend the statute. Rather than assuming that Congress and the courts are walled-off from one another, the Whitley court should have encouraged a dialogue between the two.

In November 2004, Latie Whitley robbed a Bronx delicatessen, threatening employees with a firearm and emptying the cash register. During the robbery, the gun accidentally fired, wounding Whitley in the face. (6) He was subsequently indicted on three counts. Count One charged Whitley with the robbery in violation of the Hobbs Act, which criminalizes "obstruct[ing], delay[ing], or affect[ing] commerce ... by robbery or extortion." (7) Count Two charged Whitley with using, carrying, or possessing a firearm "during and in relation to any crime of violence or drug trafficking crime" under [section] 924(c)(1)(A). (8) Count Three charged Whitley as an armed career criminal for illegally possessing a firearm after three convictions for violent felonies or serious narcotics offenses under [section] 924(e)(1). (9) Whitley was convicted of all counts at trial. (10)

The district court sentenced Whitley to imprisonment for 282 months on both the robbery and armed career criminal counts, followed by a mandatory consecutive term of 120 months for discharging a firearm. (11) The district court believed [section] 924(c)(1)(A) (12) required this sentence. (13) The Second Circuit reversed, holding that the statute did not require the mandatory ten-year consecutive sentence, and remanded for resentencing. (14)

Writing for the panel, Judge Jon O. Newman found that the consecutive mandatory sentence violated the opening clause of 18 U.S.C. [section] 924(c). (15) The court of appeals held that because Count Three--the armed career criminal violation--subjected Whitley to a fifteen-year mandatory minimum sentence, "a greater minimum sentence [was] otherwise provided by this subsection or by any other provision of law," thereby invoking the "except" clause and exempting Whitley from the requirement of a consecutive sentence. (16) Rather than discuss the affirmative merits of its very literal reading of the statute, the court instead addressed the four specific objections raised by the government.

First, the government argued that the "except" clause should suspend an otherwise applicable [section] 924(c)(1)(A) sentence only when a greater minimum consecutive sentence applies for using a firearm in furtherance of an underlying crime. For example, 18 U.S.C. [section] 924(c)(1)(A)(iii) subjected Whitley to a ten-year consecutive sentence for discharging a firearm. (17) The "except" clause exempted him from the five-year consecutive sentence he would also be subject to under 18 U.S.C. [section] 924(c)(1)(A)(i) for possessing the gun, a logically precedent requirement for discharging it. (18) Similarly, had Whitley discharged a machinegun instead of a handgun--which results in a thirty-year consecutive sentence under [section] 924(c)(1)(B)(ii)--he would be exempt from the lesser ten-year sentence. (19) But because Whitley's twenty-three-year sentence arose from [section] 1951 and [section] 924(e), under which punishments do not run consecutively, the "except" clause should have no effect, and the district court correctly tacked on the ten-year sentence for discharging the gun. In short, the government's interpretation implied that a sentence under [section] 924(c)(1)(A) is "excepted" only when the longer sentence triggering the "except" language also runs consecutively because the statute provides for consecutive sentences. Rejecting this argument with a single paragraph, the court accurately observed that "[t]he flaw in the Government's argument, of course, is that the word 'consecutive' does not appear in the text of the 'except' clause." (20)

Second, the government pointed to the statute's design. (21) The 1998 amendment to [section] 924(c)(1)(A) separated an undivided subsection into individual numbered segments. (22) Congress added the "except" clause, the government argued, solely to ensure that the newly-divided segments functioned in harmony: defendants would not be exposed to liability under multiple sections of [section] 924(c)(1)(A) for the same offense. (23) The court noted--tersely but correctly--that "if linking the various provisions of subsection (c)(1) together was the sole purpose of the 'except' clause, the clause would have ended with the phrase 'provided by this subsection,' and the phrase 'or by any other provision of law' would have been unnecessary." (24)

Third, the government argued that relieving Whitley of the ten-year sentence would be contrary to congressional intent. (25) Noting that the argument was "[o]f arguably greater force" than the two previously advanced, (26) the court briefly reviewed the history of amendments to [section] 924(c). Conceding that the most obvious purpose of the amendment was to reverse the Supreme Court's very narrow interpretation of the statute's previous version in United States v. Bailey, (27) the court nevertheless stated, "we do not regard it as inconsistent with that purpose for Congress ... also to have made a reasoned judgment that where a defendant is exposed to two minimum sentences ... only the higher minimum should apply." (28)

Finally, the government argued that the court's interpretation of the "except" clause would give rise to illogical results. (29) Specifically, felons who committed lesser underlying crimes would face ultimately higher sentences than those whose base crimes carried a minimum sentence high enough to subsume the [section] 924(c) penalty through the "except clause." For example, a defendant who brandished a firearm while possessing 500 grams of cocaine would be subject to consecutive mandatory minimum sentences of seven years for the firearm and five years for the narcotics, whereas a defendant who brandished a firearm while possessing five kilograms would face only the mandatory tenyear minimum for the drugs. (30) The Second Circuit responded that courts would not be obliged to effect this absurdity, but could, in the aftermath of Booker and consistent with the sentencing factors of 18 U.S.C. [section] 3553(a), sentence above the minimum when necessary to avoid this inconsistency and to ensure justice. (31) Notably, the court never denied that its interpretation would occasionally produce odd results. (32)

The literal application of the "except" clause is unsatisfying in two main respects. First, it contorts a commonsense understanding of congressional intent through an overly...