924(c) Convictions and Career Offender Sentencing

1. 924(c) Convictions and Career Offender Sentencing Keith A. Williams

2. INTRODUCTION

3. 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

4. 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!

5. SOME BRIEF HISTORY

6. 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

7. 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.

8. 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 Commission’s decision that the amendment . . . is necessary to comply appropriately with [the Act to Throttle the Criminal Use of Guns]”

9. PRACTICAL APPLICATION (also known as “avoiding the ineffective assistance claim”)

10. 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?

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

12. 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:

13. (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

14. 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

15. 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

16. 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

17. 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

18. 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?

19. 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

20. 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

21. 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

22. Door #1: 346 - 411 • Door #2: 262 – 327 • Use the one with the highest minimum • Final answer: 346 – 411 months

23. 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 client’s age, 8 more years might not make much of a difference