United States v. Smith

Opinion

FILED United States Court of Appeals Tenth Circuit

June 30, 2014 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 13-1112

JOSHUA BODEAN SMITH,

Defendant-Appellant.

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:10-CR-00612-CMA-1)

O. Dean Sanderford, Assistant Federal Public Defender (Warren R. Williamson, former Interim Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

Must a sentencing court studiously ignore one of the most conspicuous

facts about a defendant when deciding how long he should spend in prison? After

a court sentences a man to many decades in prison for using a gun during a crime of violence, must the court pretend the gun sentence doesn’t exist when weighing

an appropriate prison term for the underlying crime of violence?

That’s the blinkered view the government persuaded the district court to

adopt in this case. No one doubts that Joshua Smith deserves a long prison

sentence. He robbed two stores and shot the managers in both. For his conduct

he stands convicted of two counts of robbery (18 U.S.C. § 1951) and two counts

of using a gun “during and in relation to” those “crime[s] of violence” (18 U.S.C.

§ 924(c)). At sentencing, the district court began by recognizing that § 924(c)

mandated a 35-year prison term for Mr. Smith’s gun use during the robberies.

Turning then to the task of fixing a sentence for the robberies themselves, the

court acknowledged any robbery sentence had to run consecutively to, not

concurrently with, the mandatory gun sentence. Still, the question remained how

long Mr. Smith’s robbery sentence should be. How much more prison time

beyond about 2045 — when Mr. Smith will be 55 years old and otherwise eligible

for release — might be necessary and just. Normally, of course, a district court

enjoys considerable discretion when it comes to picking a prison term within the

applicable statutory range. But at the government’s urging in this case the district

court decided there was one set of facts it had to disregard — Mr. Smith’s

§ 924(c) gun convictions and the lengthy sentence it just issued for them.

2 When it comes to those facts alone the government argued and the district

court held a sentencing judge must remain willfully blind. According to the

government, a sentencing judge is powerless to reduce by a year, a month, or a

day the prison time it issues for an underlying crime of violence in light of a

simultaneously issued § 924(c) gun sentence. A judge can’t so much as consider

the fact a § 924(c) conviction and sentence exist. Even if the § 924(c) conviction

and sentence guarantee the defendant a prison term of many decades. Even if the

§ 924(c) prison term is certain to outlast the defendant’s life and the lives of

every person now walking the planet — itself no fanciful possibility. See, e.g.,

Deal v. United States, 508 U.S. 129 (1993); United States v. Angelos, 345 F.

Supp. 2d 1227, 1260-61 (D. Utah 2004), aff’d, 433 F.3d 738 (10th Cir. 2006). On

the government’s view, a district court must always and categorically disregard

the sentence it has just pronounced for a § 924(c) gun conviction when turning to

consider an appropriate sentence for the underlying and intimately related crime

of violence. Such a rule may not test the limits of the human capacity for self-

deception. But if allowed to stand it would transform the act of sentencing in

these cases from a searching and fact-sensitive inquiry aimed at finding a fitting

punishment into an enterprise built on a fiction, even a suspension of disbelief.

We are convinced the law doesn’t require so much from sentencing courts.

Neither should the perfidiousness of a defendant’s conduct be allowed to obscure

(or perhaps warp) the law’s teachings on this score. Viewed with a cold eye, the

3 relevant statutes permit a sentencing court to consider a defendant’s § 924(c)

conviction and sentence just as they permit a sentencing court to consider most

any other salient fact about a defendant. To say this much isn’t to suggest a

sentencing court must reduce a defendant’s related crime of violence sentence in

light of his mandatory gun enhancement sentence under § 924(c). Only that the

court is not required to feign the sort of ignorance the government demands.

*

We begin with 18 U.S.C. § 3661. “No limitation,” says the statute, may be

placed on a court’s power to consider information about a defendant’s

“background, character, and conduct” when seeking to fashion an appropriate

sentence. Id. As the Supreme Court has explained, this provision ensures

sentencing judges access to “the widest possible breadth of information about a

defendant” so that the punishments they issue “suit not merely the offense but the

individual.” Pepper v. United States, 131 S. Ct. 1229, 1240 (2011) (quoting

Wasman v. United States, 468 U.S. 559, 564 (1984)); see also Williams v. New

York, 337 U.S. 241, 247 (1949) (“[T]he punishment should fit the offender and

not merely the crime.”). In this way, the statute preserves a long tradition, one

extending back “before . . . the American colonies became a nation,” a tradition

of affording judges “discretion in the sources and types of evidence” they may

consult at sentencing, subject of course and always to the Constitution’s

constraints. Pepper, 131 S. Ct. at 1240 (quoting Williams, 337 U.S. at 246).

4 The government’s theory in this appeal sits uncomfortably with § 3661, the

Supreme Court’s interpretation of it, and the historical practice it embodies.

Rather than ensure a sentence predicated on a full view of the defendant, the

government asks us to bar sentencing courts from considering an entire category

of information about him. This despite the fact the Supreme Court has warned

that placing such “categorical bar[s]” on the information available to sentencing

courts risks “directly contraven[ing] Congress’[s] expressed intent in § 3661.”

Pepper, 131 S. Ct. at 1242. Despite the Court’s declaration that § 3661’s “broad

language” does not provide “any basis for the courts to invent a blanket

prohibition against considering certain types of evidence at sentencing.” United

States v. Watts, 519 U.S. 148, 152 (1997) (per curiam). And despite the fact the

Court has rejected proposal after proposal seeking to impose non-constitutional

limits on the information a court may consider at sentencing. See, e.g., Williams

v. Oklahoma, 358 U.S. 576, 584-86 (1959) (rejecting categorical bar against

considering conduct related to one count of conviction when sentencing for an

independent count of conviction); Nichols v. United States, 511 U.S. 738, 746-49

(1994) (defendant’s prior convictions); Witte v. United States, 515 U.S. 389, 397-

401 (1995) (conduct for which the defendant may later be prosecuted and

convicted); Pepper, 131 S. Ct. at 1241-43 (post-conviction rehabilitation efforts).

The government’s theory in this appeal sits uneasily, too, with the even

more specific guidance the Supreme Court has provided about § 3661’s

5 application in the § 924(c) context. In United States v. Watts, the Court read

§ 3661 to permit a sentencing court to find by a preponderance of the evidence

that the defendant engaged in the conduct alleged in a § 924(c) charge — even

though he was acquitted on that charge — and then use that finding to enhance

his sentence for the underlying crime of violence. 519 U.S. at 156-57. And given

that, one might well ask this: How can it be that § 3661 authorizes a sentencing

court to consider facts related to a defendant’s § 924(c) acquittal when fashioning

a sentence for the underlying crime of violence but not facts related to his

§ 924(c) conviction and sentence?

If anything, the case for applying § 3661 would seem a good deal more

compelling here than there. After all, even if § 3661 allows the practice in Watts

one could debate whether the Constitution prohibits it, forbidding courts (at least

usually) from imposing greater punishments that depend on facts neither admitted

by the defendant nor found by a jury. See Alleyne v. United States, 133 S. Ct.

2151, 2160-63 (2013); Rita v. United States, 551 U.S. 338, 373 (2007) (Scalia, J.,

concurring in part and concurring in the judgment). Meanwhile, no one has

identified any constitutional imperative that might prevent sentencing courts from

applying § 3661 to reduce crime of violence sentences in light of simultaneously

issued § 924(c) sentences. For that matter, in its briefs to this court the

government doesn’t even mention § 3661 or any of the Supreme Court’s guidance

about its scope or the tradition it codifies.

6 *

Still, that’s just the beginning of the government’s troubles. While § 3661

explains what a district court may consider at sentencing, 18 U.S.C. § 3553(a)

describes what a district court must consider when sentencing for crimes that lack

a mandatory sentence prescribed by statute — crimes like Mr. Smith’s underlying

§ 1951 robbery convictions. In what’s often called its parsimony principle,

§ 3553(a) directs courts to “impose a sentence sufficient, but not greater than

necessary, to comply” with several (admittedly incommensurate) policy goals.

Goals including a just punishment, adequate deterrence, and protection of the

public. And here again it is difficult to reconcile the government’s insistence that

district courts must categorically ignore § 924(c) convictions and sentences with

this statute’s demands.

Consider just one of the policy goals the statute says a district court must

consider, § 3553(a)(2)(C)’s concern with protecting the public. Surely a rational

district court could find that the length of the public’s guaranteed protection from

a defendant thanks to a mandatory § 924(c) sentence informs its analysis of the

public’s unmet need for further protection when it comes to sentencing the

defendant for his related crime of violence. After all, the marginal benefit for

public protection may appear quite different when a defendant is 23 years of age

— as Mr. Smith is now — and only recently removed from criminal conduct

compared to when he is 55 years old and 35 years removed from his last criminal

7 act — as Mr. Smith will be, approximately, when his mandatory § 924(c)

sentences end. Cf. Miles D. Harer, Fed. Bureau of Prisons, Recidivism Among

Federal Prisoners Released in 1987, at 3, 12 (1994) (reporting recidivism rates

“inversely related to age at release”).

In fact, sentencing courts routinely consider facts just like these. They

routinely consider the impact of a sentence already issued for one count of

conviction when trying to determine the appropriate punishment under § 3553(a)

for a related count of conviction. 1 Neither does the government dispute the

propriety of the practice. To the contrary, the government expressly concedes

that district courts normally may find “other sentences” issued for related counts

of conviction relevant when applying “§ 3553(a)’s broad categories of

consideration” to ascertain an appropriate punishment for a remaining count of

1 See, e.g., Pepper, 131 S. Ct. at 1251; Greenlaw v. United States, 554 U.S. 237, 253-54 (2008); United States v. Vidal-Reyes, 562 F.3d 43, 49 n.4 (1st Cir. 2009); United States v. Bay, 820 F.2d 1511, 1514 (9th Cir. 1987) (a sentencing court is not required to “evaluate the gravity of each separate crime upon which a conviction was obtained, and then select a punishment that would be appropriate for each if considered independently of any other crimes.”); cf. United States v. Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir. 2005) (forfeiture order part of sentencing package); United States v. Teel, 691 F.3d 578, 585-86 (5th Cir. 2012) (bribery and fraud prison terms); United States v. Flaschberger, 408 F.3d 941, 943-44 (7th Cir. 2005) (restitution order); United States v. Noble, 299 F.3d 907, 910 (7th Cir. 2002) (cocaine possession and conspiracy prison terms); United States v. Horob, 735 F.3d 866, 871 (9th Cir. 2013) (identity theft mandatory minimum prison term); United States v. Jefferson, 308 F. App’x 2, 4 (7th Cir. 2009); United States v. Hamilton, 323 F. App’x 27, 31 (2d Cir. 2009). See generally 12A Beth Bates Holliday, Cyclopedia of Federal Procedure § 52:10 (3d ed. 2014).

8 conviction. Gov’t Br. 29.

So where does that leave us? Under a longstanding American tradition

embodied in § 3661 and § 3553(a), federal courts seeking a just sentence may

look to the whole of the defendant’s person, character, and crimes. As part of this

tradition, sentencing courts may examine and consider the impact of

contemporaneously issued sentences.

The government replies that two subsections lurking within § 924(c) itself

undo this tradition when it comes to gun charges. But while more specific

statutory terms surely can trump more general statutory guidance, neither will we

lightly assume Congress intended radical change to historical sentencing

practices. After all, “Congress . . . does not alter the fundamental details of a

regulatory scheme in vague terms or ancillary provisions — it does not, one might

say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, Inc., 531

U.S. 457, 468 (2001); see also Harrison v. PPG Indus., Inc., 446 U.S. 578, 602

(1980) (Rehnquist, J., dissenting) (“In a case where the construction of legislative

language such as this makes so sweeping and so relatively unorthodox a change as

that made here, I think judges as well as detectives may take into consideration

the fact that a watchdog did not bark in the night.”). A peek inside the two

subsections the government asks us to inspect, moreover, reveals none of the

radical change the government promises, only empty mouseholes.

9 The first subsection the government points to, 18 U.S.C. § 924(c)(1)(D)(ii),

states that mandatory minimum gun sentences may not run concurrently with “any

other term of imprisonment imposed on the” defendant, including any prison term

imposed for the defendant’s underlying crime of violence. Plainly, this language

ensures that convictions on gun charges and crimes of violence run consecutively

even if the district court might find justice better served by concurrent sentences.

In this way, the statute clearly does alter the normal operation of § 3553’s

parsimony principle: consecutive sentences must be issued even if the district

court thinks concurrent sentences sufficient to meet § 3553(a)’s policy objectives.

But more than this § 924(c)(1)(D)(ii) does not purport to do. It does not

say that in calculating the length of a (consecutive) crime of violence sentence a

district court must ignore the length of the mandatory minimum gun sentence. It

does not limit the factors the court may and must consider when setting a sentence

for the crime of violence. It does not increase the penalties for the underlying

crime of violence. In fact, it does not say anything about how the underlying

crime of violence must be punished, about what the “other term of imprisonment”

must be. The statute leaves that task to the usual sources of sentencing law

outside § 924(c), including § 3661 and § 3553. Section 924(c)(1)(D)(ii) says

simply that § 924(c)’s mandatory minimums must run consecutively to “any other

term of imprisonment.” And that means any other term of imprisonment.

Our thoughtful colleague in dissent disputes none of this. Instead, he joins

10 the government in relying on a second subsection, 18 U.S.C. § 924(c)(1)(A). Our

colleague insists this provision “unambiguous[ly]” and “plain[ly]” withdraws the

district court’s normal sentencing powers. Dissent at 1-2. But, respectfully, we

don’t see how this subsection is any more telling than the last. This subsection

says simply that “in addition to the punishment provided for” the defendant’s

underlying offense (in Mr. Smith’s case, robbery), a defendant must be sentenced

to “a term of imprisonment of not less than” a certain specified number of years

for his gun offense.

By its plain terms, this language ensures that a § 924(c) gun sentence is

indeed a mandatory minimum sentence. This language explains that the

defendant’s prescribed sentence for his gun use must be at least a certain number

of years (“not less than . . .”) and must be joined with or added to (come “in

addition to”) the sentence provided for his underlying offense. In this way, the

statute clarifies, too, that where courts once often thought a robbery or drug

transaction involving a gun constituted a single punishable offense, now two

separate statutory offenses exist to be punished. And the subsection guarantees

that — whatever the defendant’s sentence for his underlying offense — he will at

least and always serve a certain number of years for his gun crime.

But while doing all this, the subsection says nothing about the quantum of

punishment a defendant should receive for his underlying offense. Instead, the

provision speaks of its mandatory minimum gun sentences as coming “in addition

11 to the punishment provided” for the underlying offense. So it is the statute here

(again) takes it as given that the proper scope of punishment for a defendant’s

underlying crime is “provided” by some other lawful source. And, of course, it

is. In Mr. Smith’s case, the robbery statute (§ 1951), combined with § 3661 and

§ 3553, “provide” the punishment for his crime of violence. As we’ve seen, too,

those statutes expressly permit a full consideration of his background and

conduct, including his § 924(c) gun convictions and sentence.

Put differently, § 924(c)(1)(A) serves to ensure sentences for gun use are

indeed mandatory and minimum ones. It requires specific prison terms for using

or carrying a firearm and requires those terms to be served “in addition to” —

joined with, added to — whatever punishment is “provided” by other laws for a

defendant’s underlying offense. As significant as all this may be, it does not go

so far as to “provide” the sentence or sentencing procedure for a defendant’s

underlying offense. Nothing in the subsection purports to displace traditional

sentencing laws and practices with respect to that conviction. There are no

elephants hiding here.

That the government wishes us to impress on § 924(c) a good deal more

than that its text will sustain finds further confirmation from a statutory cousin.

In the identity theft context Congress has altered traditional sentencing practices

in the very way the government now wishes us to alter them in the gun use

12 context. Congress has acted in the identity theft context plainly and

unmistakably. All this strongly suggests that the first branch knows exactly how

to alter traditional sentencing practices when it wishes, that when it does so it

does so in ways and places clear enough for all to see — and that it has done

nothing of the kind in § 924(c).

Just as § 924(c) makes it a crime to use firearms “during and in relation to”

crimes of violence, 18 U.S.C. § 1028A criminalizes identity theft “during and in

relation to” certain enumerated felonies. Like § 924(c)(1)(A), § 1028A(a)

specifies that the penalties for the crime it creates come “in addition to the

punishment provided for” the underlying offense. And like subsection

(c)(1)(D)(ii) of § 924, subsection (b)(2) of § 1028A provides that certain

mandatory minimum prison terms for identity theft must run consecutively to any

other term of imprisonment for the underlying felony conviction. Many courts

have recognized the generally parallel construction of these statutes. See, e.g.,

Vidal-Reyes, 562 F.3d at 51-52; United States v. Magassouba, 619 F.3d 202, 206

(2d Cir. 2010); United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir. 2009).

See generally Molly Booth, Comment, Sentencing Discretion at Gunpoint: How

To Think About Convictions Underlying § 924(c) Mandatory Minimums, 77 U.

Chi. L. Rev. 1739, 1746-48 (2010).

But after subsection (b)(2), § 1028A veers off in a different direction,

adding something new and telling in subsection (b)(3). There the statute provides

13 that

in determining any term of imprisonment to be imposed for the felony during which the [identity theft occurred], a court shall not in any way reduce the term to be imposed for such crime so as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section[.]

By its plain terms, this language prohibits a district court from considering any

sentence imposed under § 1028A when sentencing the defendant for his

underlying felony.

Here, then, is exactly the language the government wants to read into

§ 924(c). It is clear and unqualified. Proof that Congress knows exactly how to

strip district courts of their traditional sentencing discretion when it wishes to do

so. Further proof too that § 924(c) lacks any such command. After all, it is

axiomatic that such notable linguistic differences in two otherwise similar statutes

are normally presumed to convey differences in meaning. See, e.g., United States

v. Ressam, 553 U.S. 272, 277 (2008) (comparing § 924(c) and another similar

statute, 18 U.S.C. § 844(h)); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 530

(1982) (“[A]lthough two statutes may be similar in language and objective, we

must not fail to give effect to the differences between them.”). And here the

difference in language is unmistakable. So much so that if we adopted the

government’s reading of § 924(c) as imposing a categorical bar on considering

mandatory gun prison terms when sentencing for underlying crimes, we’d surely

14 have to read the virtually identical language of § 1028A in parallel fashion — and

in this way render subsection (b)(3) superfluous, itself always a disfavored result

in the business of statutory interpretation. See, e.g., TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001). 2

Neither does the government’s response help its cause. The government

doesn’t dispute that § 1028A parallels § 924(c) in many ways. It doesn’t dispute

that the differences between these two similar statutes suggest differences in

meaning. It doesn’t dispute that its reading of § 924(c) would, by parallel

application in § 1028A, render § 1028A(b)(3) superfluous. Instead the

government observes that § 1028A was passed in 2004, many years after § 924(c),

and from this the government surmises that § 1028A(b)(3) was “likely drafted in

response to earlier attempts by defendants in the § 924(c) context to do what

[Mr.] Smith is doing here.” Gov’t Br. 29. But the government’s musings here are

2 Underscoring the point is how courts have interpreted § 1028A(b)(3). At least two circuits have held that subsection (b)(3)’s language does only what it says — preventing a sentencing court from taking account of § 1028A’s mandatory minimums when considering a sentence for predicate offenses, but permitting sentencing courts to consider § 1028A mandatory minimums when sentencing for other convictions that don’t qualify as predicate offenses. Vidal- Reyes, 562 F.3d at 56; United States v. Wahid, 614 F.3d 1009, 1013-14 (9th Cir. 2010). In reaching this conclusion, these courts have expressly rejected the government’s argument, which it ventures again here, that the statute’s “consecutive sentence requirement” effectively forbids sentencing judges from considering the length of the mandatory minimum when determining the term of imprisonment for all accompanying counts of conviction. See Vidal-Reyes, 562 F.3d at 52-53.

15 no more than that: the government nowhere seeks to document its guesswork

about Congress’s imagined collective purpose. And even if the government could

document its guesswork, it would hardly help its cause. Even supposing Congress

intended § 1028A(b)(3) to say what it believed § 924(c) meant to say all along,

that would serve only to prove that Congress itself realizes § 924(c)’s words do

not prevent sentencing judges from considering mandatory minimum sentences.

It would highlight, too, the fact that Congress has been on notice of this issue for

many years and declined to modify § 924(c) even as it has chosen to adopt

§ 1028A(b)(3) and amend § 924(c) in various other ways. See Act of Oct. 6,

2006, Pub. L. No. 109-304, § 17(d)(3), 120 Stat. 1485, 1707 (2006); Act of Oct.

26, 2005, Pub. L. No. 109-92, § 6(b), 119 Stat. 2095, 2102 (2005); cf. Ressam,

553 U.S. at 277 (“While it is possible that this omission was inadvertent, that

possibility seems remote given the stark difference that was thereby introduced

into the otherwise similar texts . . . .”). In any event, we are of course bound by

the language Congress actually employed in § 924(c) — not by the (conjectured)

aims of a subsequent Congress drafting a different statute decades later. See

Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081-82 (2011); United States v.

United Mine Workers of Am., 330 U.S. 258, 281-82 (1947).

Recognizing the weakness of the government’s reply, our dissenting

colleague offers another of his own devise. In his view, Congress added

subsection (b)(3) to § 1028A merely to underscore the point it already made in

16 subsection (b)(2). Sometimes, our colleague notes, legislatures employ redundant

language. See Dissent at 4-5. We don’t doubt that’s true but neither are we

entitled to reach such a conclusion lightly. Respect for democratic authority

requires unelected federal judges to exercise great caution before declaring the

words enacted by the people’s representatives to be superfluous. As the Supreme

Court has (repeatedly) instructed, “[i]t is our duty to give effect, if possible, to

every clause and word of a statute” and we should be “reluctant to treat statutory

terms as surplusage in any setting.” Duncan v. Walker, 533 U.S. 167, 174 (2001)

(internal quotation marks and brackets omitted). In fact, the Court has called this

a “cardinal principle” of statutory construction. Id. Our reading of § 1028A

abides these directions and affords meaning to all of Congress’s words while our

respected colleagues’ reading does not, effectively leaving an entire statutory

subsection with nothing to do. 3

So far we’ve consulted the traditional statutory sentencing structure in

§ 3661 and § 3553(a), the specific language of § 924(c) itself, and a close

legislative cousin in § 1028A. All point against the government. But what if we

3 Neither, for that matter, does the legislative history our colleague points to license reading plain statutory terms out of the law. It merely offers an overview of § 1028A’s provisions and remarks unremarkably that they are meant “to ensure the intent of [the] legislation is carried out.” H.R. Rep. No. 108-528, at 10 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 785-86.

17 broaden our view still further and ask about those who ventured down this road

before us? Have they found the enormous change to traditional sentencing

principles hidden in § 924(c) that we cannot find? The answer does little to help

the government’s cause.

Take the sentencing commission. It isn’t necessary for us to decide what

deference (if any) this court owes the commission’s interpretations of sentencing

statutes. For our present purposes it is surely notable, however, that those

appointed by Congress to advise the federal courts on their sentencing

responsibilities don’t seem to read § 924(c) as the government proposes. The

advisory sentencing guidelines expressly state that a § 924(c) sentence should

influence (and serve to reduce) a sentencing court’s calculation of the guidelines

range for the underlying offense in at least one way. When a § 924(c) sentence

exists, § 2K2.4 advises district courts not to apply certain otherwise available

enhancements for the defendant’s underlying criminal conduct. Applying weapon

enhancements while also sentencing under § 924(c) would amount to “duplicative

punishment” in the commission’s view by counting the defendant’s weapon use

twice. See U.S. Sentencing Guidelines Manual app. C, amend. 599; id. § 2K2.4

cmt. n.4. If, as the government supposes in this appeal, the statute’s text barred

district courts from considering § 924(c) punishments when issuing sentences for

underlying offenses, the guidelines’ concern about double-counting would violate

this textual command. After all, the government tells us a district court may

18 never consider a § 924(c) sentence when fashioning a sentence for the underlying

crime — precisely what the Sentencing Commission in § 2K2.4 says a district

court ought to do. 4

Next consider the case law. The government argues before this court that

§ 924(c)(1)(A) and (c)(1)(D)(ii) radically limit district courts’ traditional

discretion to fashion punishments for underlying offenses that are both condign

and fully considered. Yet for years the government has suggested just the

opposite — contending in case after case that district courts may and should

consider § 924(c) sentences when sentencing for related crimes. And court after

4 The dissent suggests the government’s reading of § 924(c) might be reconciled with § 2K2.4 if the guideline is interpreted to permit considering the § 924(c) conviction alone, apart from the accompanying sentence. See Dissent at 5. But of course § 2K2.4 fears duplicative punishment and does so only because the § 924(c) conviction comes with a prison sentence attached.

The government (but not the dissent) argues that § 5G1.2(a) advises sentencing courts to disregard § 924(c) mandatory minimums when fixing related prison sentences. In fact, § 5G1.2(a) does no such thing. That provision merely advises that mandatory minimum sentences like those found in § 924(c) should “be determined by that statute and imposed independently” of other sentences. So a § 924(c) gun sentence should be determined by the minimums prescribed in that statute rather than using a § 3553(a) analysis (no surprise there) and should run consecutively to any other sentence imposed for the underlying crime (no surprise there either). Absent in § 5G1.2(a) is any suggestion that the sentence for the underlying crime must be calculated without reference to the existence of the § 924(c) sentence. See United States v. Rodriguez, 112 F.3d 26, 30 (1st Cir. 1997); Vidal-Reyes, 562 F.3d at 55. Indeed, the applicable note confirms that § 5G1.2(a) only requires that § 924(c)’s mandatory minimum “be imposed to run consecutively to any other term of imprisonment.” U.S. Sentencing Guidelines Manual § 5G1.2 cmt. n.2. Here again there is no effort to control or dictate what that “any other term of imprisonment” should be.

19 court has agreed.

Many cases arise this way. In light of § 924(c)’s mandatory minimum for a

gun charge, the district judge decides that a relatively modest sentence for the

underlying crime of violence (or drug offense) would serve § 3553(a)’s parsimony

principle. Then the court of appeals overturns the § 924(c) conviction and,

despite the defendant’s protests, permits the district court to revisit and adjust

upward its sentence for the underlying crime. At no point in this process does the

government say what it says here — that it would be entirely wrong for a district

court to assess the impact of the § 924(c) sentence when sentencing for the

underlying offense under § 3553(a). Instead, the government says of course the

district court properly considered the § 924(c) sentence in its original § 3553(a)

sentencing analysis for the underlying crime. And the government says of course

the district court on remand should now account for the fact that the § 924(c)

sentence is gone. The government says all this even when the district court in the

initial sentencing proceeding offered no hint that the defendant’s mandatory

§ 924(c) sentence influenced its sentence for the underlying crime.

Typically, the government’s argument goes like this: “[T]he fact that the

District Court imposed separate sentences on [the defendant] for each count of

conviction did not diminish their legal relatedness . . . .” 5 And typically the

5 Brief for the United States of America at 18, Rodriguez v. United States, 116 F.3d 1002 (2d Cir. 1997) (No. 96-2763), 1996 WL 33667818; see also Final

20 courts of appeals respond with a remand for resentencing like this: “Clearly, the

§ 924(c) offense and the underlying offense are interdependent and result in an

aggregate sentence, not sentences which may be treated discretely.” 6

That in all these cases stretching back nearly twenty years no one has found

anything cowled within § 924(c) to prohibit district courts from accounting for a

§ 924(c) sentence when fixing the length of a related sentence — that the

government itself has previously argued that the relevant statutes allow district

courts just this discretion — surely counts as further evidence that the

government’s current interpretation of § 924(c) is, well, rather remarkable. 7

Brief and Addendum for Appellee at 18, United States v. Townsend, 178 F.3d 558 (D.C. Cir. 1999) (No. 98-3041), 1998 WL 35240367 (“[T]he inter-dependency between § 924(c) and [the guidelines calculation for the underlying drug offense] results in an aggregate sentence for drug convictions and simultaneous § 924(c) convictions, not separate and distinct sentences for each violation.”); Brief of Plaintiff-Appellee United States of America at 12, United States v. Watkins, 147 F.3d 1294 (11th Cir. 1998) (No. 97-2224), 1997 WL 33574255 (“The district court properly viewed Defendant’s sentence as a ‘package’ . . . .”). 6 United States v. Mendoza, 118 F.3d 707, 710 (10th Cir. 1997); see also United States v. Townsend, 178 F.3d 558, 568 (D.C. Cir. 1999) (“[A] mandatory [§ 924(c)] sentence may influence the sentence imposed on other counts.”); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Mata, 133 F.3d 200 (2d Cir. 1998); United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 115 F.3d 241 (4th Cir. 1997); United States v. Rodriguez, 114 F.3d 46 (5th Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997); United States v. McClain, 133 F.3d 1191 (9th Cir. 1998); United States v. Easterling, 157 F.3d 1220 (10th Cir. 1998); United States v. Watkins, 147 F.3d 1294 (11th Cir. 1998). 7 The dissent suggests that the weapon enhancement provision in § 2K2.4 “explains” why district courts may reconsider underlying offense sentences upon

21 Of course and as our dissenting colleague rightly notes, a handful of recent

cases from outside the resentencing context do adopt the government’s (current)

view that § 924(c) mandatory minimums may never influence the sentence for an

underlying crime. See Dissent at 3-4. 8 Yet many others expressly reject just this

line. 9 Neither do we find the dissent’s handful of cases persuasive on their own

terms. They are often terse to the point of being summary (one contains two

paragraphs of reasoning, another four). None pauses to consider the import of

a defendant’s successful challenge to a § 924(c) conviction. As the dissent notes, once the § 924(c) conviction evaporates applying a weapon enhancement for the underlying offense no longer threatens to count the same conduct twice. See Dissent at 5 n.1. But none of this helps the dissent’s cause. Even if true, it still implies that a § 924(c) punishment may be considered at sentencing for an underlying offense. Besides, in truth, these cases generally don’t restrict the sentencing judge’s discretion at resentencing solely to applying the weapon enhancement. See, e.g., Townsend, 178 F.3d at 568 (collecting cases). 8 See, e.g., United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007); United States v. Chavez, 549 F.3d 119, 133-35 (2d Cir. 2008); United States v. Franklin, 499 F.3d 578, 584-85 (6th Cir. 2007); United States v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007); United States v. Powell, 444 F. App’x 517, 522 (3d Cir. 2011); United States v. McCullers, 395 F. App’x 975, 978 (4th Cir. 2010) (per curiam). 9 See, e.g., United States v. Webster, 54 F.3d 1, 4 (1st Cir. 1995) (“[I]n departing from a guideline sentence the district court is free to exercise its own judgment as to the pertinence, if any, of a related mandatory consecutive sentence [under § 924(c)].”); Franklin, 499 F.3d at 587-89 (Moore, J., concurring in the judgment); United States v. Ezell, 417 F. Supp. 2d 667, 678 (E.D. Pa. 2006), aff’d on other grounds, 265 F. App’x 70 (3d Cir. 2008); Angelos, 345 F. Supp. 2d at 1260; United States v. Ciszkowski, 430 F. Supp. 2d 1283, 1288 (M.D. Fla. 2006), aff’d on other grounds, 492 F.3d 1264, 1271 (11th Cir. 2007); United States v. Roberson, 573 F. Supp. 2d 1040, 1050-51 (N.D. Ill. 2008); United States v. Barton, 442 F. Supp. 2d 301, 303-04 (W.D. Va. 2006); United States v. Bailey, No. CR 12-4083-MWB-2, 2013 WL 4735697 (N.D. Iowa Sept. 3, 2013).

22 § 3661. None addresses § 924(c)’s demand only that its sentences run

consecutively to any other sentences, in addition to whatever punishment is

“provided for” underlying offenses, without purporting to provide that

punishment itself or affect its length. All overlook § 1028A, failing to consider

the fact their interpretations of § 924(c) effectively render § 1028A(b)(3)

superfluous. None repudiates (or even mentions) the many cases — including

cases from these very same courts — treating § 924(c) and underlying sentences

as properly interrelated when the government seeks resentencing after the

defendant’s § 924(c) conviction is vacated. One case even seems to treat the

sentencing guidelines as binding rather than advisory.

Neither can anyone be expected to remain insensible to the anomaly the

government’s notably inconsistent advocacy on this issue would seem to invite.

On the one hand, the government seems to think that when a sentencing judge

shows any sign of accounting for § 924(c) by reducing prison time for an

underlying offense, it can object and require the latter sentence to be

independently calculated (and in all likelihood longer). On the other, the

government presumably wishes to preserve the option to insist on the

recalculation (and in all likelihood the lengthening) of underlying offense

sentences should any § 924(c) convictions be overturned, because whether or not

the sentencing court showed any sign of doing so it did consider the § 924(c)

sentence in its § 3553(a) analysis for the underlying crime. But it seems to us

23 that district courts either may lawfully consider § 924(c) when sentencing for

underlying offenses under § 3553(a) or they may not. Surely (hopefully) the

government does not mean to suggest a district court may consider a § 924(c)

sentence only when that helps it win longer prison terms.

With so much against it in the text and structure of the relevant statutes,

with so little support from administrative or case law authorities, the government

is left with a vague purposive argument. Because Congress meant to be “severe”

in punishing § 924(c) for gun convictions with long mandatory minimum

sentences, we should also ensure “severity” by precluding district courts from

taking § 924(c) sentences into account even when they are engaged in sentencing

for separate convictions under § 3661 and § 3553(a). Cf. Dissent at 2. If there’s

any doubt about how best to interpret § 924(c), we should opt for the more severe

option to effect (presumed) congressional intent: a sort of rule-of-severity

interpretive canon, if you will.

This suggestion commits the logical mistake of overgeneralization.

Because the statute may command severity in one way (lengthy mandatory

minimums for gun convictions) the government surmises we should be severe in

another way too (upending normal sentencing procedure for related crimes). But

that much doesn’t follow. Rather than attempt to divine some abstract purposes

the government surmises Congress sought to achieve and then force all the

24 statute’s provisions into their service, courts owe respect first and foremost to

“the means [Congress] has deemed appropriate, and prescribed, for the pursuit of

those purposes.” MCI Telecomm’ns Corp. v. Am. Tel & Tel. Co., 512 U.S. 218,

231 n.4 (1994). After all, it’s a rare statute that pursues a single purpose

unrelentingly. In the real world, laws embody legislative compromises and seek

to balance disparate interests. And it’s hardly strange to think that Congress

might have wished to preserve a degree of judicial discretion at sentencing —

discretion, after all, that both represents the historical norm and is itself embodied

in congressional statutes. See Bd. of Governors v. Dimension Fin. Corp., 474

U.S. 361, 374 (1986) (“Invocation of the ‘plain purpose’ of legislation at the

expense of the terms of the statute itself . . . prevents the effectuation of

congressional intent.”); Genova v. Banner Health, 734 F.3d 1095, 1099 (10th Cir.

2013) (“[O]ne can go badly awry assuming . . . that whatever might seem to

further a statute’s primary objective must be the law.” (citation and quotation

marks omitted)).

Besides, even if the government’s arguments about the import of

§ 924(c)(1)(A) and (c)(1)(D)(ii) might be thought by others to contain some

ambiguous force we have failed to appreciate fully, we don’t default to a

presumption of severity but to the rule of lenity. The rule of lenity dictates that

any doubts at the end of a thorough statutory investigation must be resolved for

the defendant, any tie must go to the citizen, not the state. In our legal order it is

25 not the job of independent courts to bend ambiguous statutory subsections in

procrustean ways to fit the prosecutor’s bill. See, e.g., Bifulco v. United States,

447 U.S. 381, 387 (1980); United States v. R.L.C., 503 U.S. 291, 305-06 (1992);

United States v. Universal C.I.T. Credit Corp, 344 U.S. 218, 221-22 (1952).

The government’s contrary argument brings to mind Kimbrough v. United

States, 552 U.S. 85 (2007). There the trouble began when Congress set minimum

and maximum sentences for cocaine offenses at a 100:1 powder-to-crack ratio.

From this fact, the government inferred that courts sentencing between the

minimum and maximum had to use the same 100:1 ratio. Though nothing in the

statutory text compelled such a result, the government argued that anything less

would’ve offended Congress’s overarching (if unexpressed) purpose. The

Supreme Court rejected that view emphatically because it “lack[ed] grounding” in

the statutory text. 552 U.S. at 102. The statute in that case set sentencing floors

and ceilings using a 100:1 ratio but said “nothing about the appropriate sentences

within these brackets” and left those matters to the normal operation of § 3661

and § 3553(a). Id. at 102-03. Exactly the same holds true here. The statute in

our case sets sentencing floors for gun crimes under § 924(c). We respect and

enforce that direction. But nothing in § 924(c) speaks to the length of sentence a

district court must issue for an underlying crime or the factors it may or must

consider. The sort of restrictions the government seeks simply lack grounding in

26 statutory text. 10

Having said so much to this point we should take care to emphasize what

we have not said. If sentencing judges may take § 924(c) sentences into account

when sentencing for underlying offenses, the dissent seems to worry as a

pragmatic matter that nothing will prevent them from issuing shorter underlying

offense sentences solely because they think the mandatory § 924(c) sentence

“excessive.” See Dissent at 3. But nothing we’ve said should be taken as

suggesting a district court may issue a sentence based on nothing more than a

policy disagreement with Congress about the length of the mandatory minimums

it has prescribed. In this appeal, we recognize instead and only that the length of

a § 924(c) sentence can at least sometimes bear legitimate relevance to the

sentencing considerations (like the time needed to ensure the protection of the

public) that Congress has statutorily directed courts to consider when sentencing

for the underlying crime.

10 It may pose a nice question, too, just how far Congress may go, consistent with the Constitution’s guarantees, in forcing a sentencing judge to disregard undisputed facts about a defendant. See Pepper, 131 S. Ct. at 1240 (noting that “both before and since the American colonies became a nation,” courts have had “wide discretion in the sources and types” of information used to assist at sentencing). But, happily, it is a question we need not answer in this case because, as we’ve seen, nothing in the text of § 924(c) compels such a result.

27 Even here our point is exceedingly narrow. We don’t mean to suggest that

a district court must reduce a defendant’s crime of violence sentence in light of a

related § 924(c) sentence. We don’t even mean to suggest a sentencing judge

should determine what bottom-line aggregate sentence best serves her

understanding of a just punishment for all of the defendant’s crimes and then

adjust the individual sentences to achieve that result. Instead, we acknowledge

simply that a district court may at least sometimes find the length of a § 924(c)

sentence relevant to the sentencing factors Congress has expressly directed it to

consider when sentencing for an underlying crime. The government admits that a

district court generally may find “other sentences” it has issued for related counts

of conviction relevant when applying “§ 3553(a)’s broad categories of

consideration” to ascertain an appropriate punishment for a remaining count of

conviction. Gov’t Br. 29. Today we hold only that nothing in § 924(c) upends

this traditional principle.

To be sure, allowing district courts to consider a § 924(c) conviction and

sentence for proper purposes cannot guarantee that none will ever consider a

§ 924(c) conviction and sentence for improper purposes. But that sort of problem

is always present at sentencing — it’s always possible courts might reduce or

increase a sentence for reasons not authorized by law. And the solution for that

problem is already in hand: we engage in appellate review of sentences to guard

against such abuses of discretion. See 18 U.S.C. § 3742. Courts of appeals are

28 fully empowered to intervene when a district court bases a sentence solely on

hostility to Congress’s laws (including § 924(c)) rather than a good-faith

application of Congress’s laws (including § 3553(a)), or when a court’s attempts

to apply sentencing law yield a result outside the realm of the reasonable. See,

e.g., Gall v. United States, 552 U.S. 38, 51 (2007). 11

Worries that district courts might abuse the discretion afforded them by law

may be reason enough to permit appellate review, but they aren’t reason enough

to withdraw that discretion in defiance of the plain text of the relevant statutory

authorities. Maybe we can debate whether in other areas the law is or should be

written with an eye to the likely reaction of the “bad man.” Compare Oliver

Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459-61 (1897)

(suggesting yes), with H.L.A. Hart, The Concept of Law 40 (3d ed. 2012)

(suggesting no). But surely we have not yet arrived at the day when appellate

judges feel the need to adorn sentencing statutes with new language of their own

hand out of concern for the “bad district judge.” 12

11 So, for example, we suspect it will be a good deal harder for a judge striving to follow § 3553(a) to sustain a sincere judgment that zero years provides “sufficient, but not greater than necessary” punishment for an underlying offense when the § 924(c) gun sentence is 5 years — as in our colleague’s hypothetical example — than when it’s the 35 years Mr. Smith faces or still longer terms defendants in other cases have confronted. See Dissent at 1. And on appellate review, such a judgment (whether sincere or not) might again be harder to sustain. 12 Even if we were tempted to manufacture a rule based on a cynical assumption about the nefarious hidden motives of sentencing judges, the government’s proposal in this case would do little to address the perceived

29 *

At the end of this long road, it is apparent to us that nothing in current law

prohibits a district court’s considering a § 924(c) conviction and sentence when

seeking to assign a just punishment for a related crime of violence. Sentencing in

this context may proceed just as it does elsewhere, with a humble recognition that

“no more difficult task confronts judges than the determination of punishment”

and “[e]ven the most self-assured judge may well want to bring to his aid every

consideration that counsel for the accused can appropriately urge.” Carter v.

Illinois, 329 U.S. 173, 178 (1946). 13

problem. A “bad judge,” after all, could just as easily reduce the sentence for an underlying crime out of sheer dislike of § 924(c) — or for any number of impermissible reasons — all while insisting on the record that his decision was influenced only by lawful factors. 13 There remains one final matter we must address. Mr. Smith also argues the district court erred by admitting testimony from a forensic firearm and toolmark examiner. Firearm toolmark analysis has recently come under attack for depending on subjective judgment, rarely using control weapons, and risking an observer effect. See, e.g., United States v. Taylor, 663 F. Supp. 2d 1170, 1179 (D.N.M. 2009); United States v. Green, 405 F. Supp. 2d 104, 119-23 (D. Mass. 2005); see also Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward 150-55 (2009). The problem is, Mr. Smith made plain at oral argument that he doesn’t challenge the expert’s admission in this case on substantive grounds: he argues only that the district court should have held a hearing before allowing his testimony rather than inviting the parties’ submissions on paper. But Mr. Smith identifies no evidence or argument he wanted to place before the court in person that he wasn’t able to put forth on paper. If the district court erred at all, then, Mr. Smith gives us no reason to think the error was anything but harmless. And we won’t require a new proceeding in the district court when there’s so little reason to doubt “the existing one reached the right result.” StorageCraft Tech. Corp. v. Kirby, 744 F.3d 1183, 1191 (10th Cir. 2014); see also Kinser v. Gehl Co., 184 F.3d 1259, 1271-72 (10th

30 The conviction is affirmed but the case is remanded for resentencing

consistent with the terms of this opinion.

Cir. 1999), abrogated in part on other grounds by Weisgram v. Marley Co., 528 U.S. 440 (2000).

31 13-1112, United States v. Smith

LUCERO, J., concurring in part, dissenting in part.

My colleagues ask: “Must a sentencing court studiously ignore one of the most

conspicuous facts about a defendant when deciding how long he should spend in prison?”

(Majority Op. 1.) That might be an interesting question to address, but as I see it, the real

question presented in this appeal is whether the plain language of 18 U.S.C. § 924(c)

allows a trial court to reduce a defendant’s sentence for an underlying crime of violence

based on concerns that the statutorily prescribed § 924(c) sentence is too harsh. Because

Congress has mandated that § 924(c) sentences be imposed “in addition to” the sentence

for an underlying crime of violence, I would answer that question in the negative.

Consider a district court judge who, after weighing the factors set forth in

§ 3553(a), determines that a defendant convicted of robbery should be sentenced to five

years’ imprisonment. Upon announcing his intent to impose the sentence, the prosecutor

interjects that the defendant has also been convicted of using a firearm during and in

relation to a crime of violence under § 924(c), which carries a five-year minimum. The

judge acknowledges that he overlooked the § 924(c) count, but rules that a total sentence

of five years is nevertheless proper. Because the § 924(c) sentence must be imposed

consecutive to the robbery sentence, the district court revises the robbery sentence down

to zero.

Under these circumstances, no one would describe the § 924(c) sentence as having

been imposed “in addition to” the robbery sentence, as § 924(c)(1)(A) requires.

Nonetheless, the majority concludes that this type of procedure would not violate the text of § 924(c). Because the unambiguous statutory language precludes such a result, I

respectfully dissent.

Mandatory minimum sentences contained in § 924(c) have been described as

“extremely severe,” United States v. T.M., 413 F.3d 420, 426 (4th Cir. 2005),

“draconian,” United States v. Hebert, 131 F.3d 514, 526 (5th Cir. 1997) (DeMoss, J.,

dissenting in part), and “unjust, cruel, and irrational,” United States v. Angelos, 345 F.

Supp. 2d 1227, 1263 (D. Utah 2004). It is difficult to quibble with these statements. The

Judicial Conference of the United States, the U.S. Sentencing Commission, and the

American Bar Association have all urged Congress to reconsider the prudence of lengthy

mandatory minimums. See United States v. Bowen, No. CR-10-204, 2012 U.S. Dist.

LEXIS 50670, at *24-44 (E.D. La. Apr. 11, 2012) (unpublished) (collecting

commentary).

Despite the problems with § 924(c), “[i]t is well established that when the statute’s

language is plain, the sole function of the courts—at least where the disposition required

by the text is not absurd—is to enforce it according to its terms.” First Nat’l Bank v.

Woods (In re Woods), 743 F.3d 689, 694 (10th Cir. 2014) (quotation omitted).

Mandatory minimums in § 924(c)(1)(A) must be imposed “in addition to the punishment

provided for [an underlying] crime of violence or drug trafficking crime,” § 924(c)(1)(A),

and “[n]otwithstanding any other provision of law,” may not “run concurrently with any

other term of 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,” § 924(c)(1)(D).

-2- As the foregoing hypothetical illustrates, accepting Smith’s argument would

permit district courts to reduce or even replace an otherwise proper sentence for an

underlying crime of violence based on the court’s concern that the mandatory minimum

is excessive. I agree with the vast majority of circuits to have considered this issue that

such a procedure violates the unambiguous command that § 924(c) sentences be imposed

“in addition to” the sentence for an underlying crime of violence. See United States v.

Chavez, 549 F.3d 119, 135 (2d Cir. 2008) (“[A] sentencing court is required to determine

the appropriate prison term for the count to which the § 924(c) punishment is to be

consecutive; and if the court reduces the prison term imposed for that underlying count

on the ground that the total sentence is, in the court’s view, too severe, the court conflates

the two punishments and thwarts the will of Congress that the punishment imposed for

violating § 924(c) be ‘addition[al]’ and ‘no[t] . . . concurrent[].’”); United States v.

Hatcher, 501 F.3d 931, 933 (8th Cir. 2007) (sentencing court could not permissibly

“conflate[] the sentences for the § 924(c) offenses and the related [underlying] crimes”);

United States v. Franklin, 499 F.3d 578, 583 (6th Cir. 2007) (“This statutory language

reflects the intent of Congress that the § 924(c)(1) sentence must be imposed ‘in addition

to’ a reasonable guideline range sentence.”); United States v. Roberson, 474 F.3d 432,

436 (7th Cir. 2007) (“[T]o use the presence of a section 924(c)(1) add-on to reduce the

defendant’s sentence for the underlying crime would be inconsistent with Congress’s

determination to fix a minimum sentence for using a firearm in [the underlying crime].”);

see also United States v. Powell, 444 F. App’x 517, 522 (3d Cir. 2011) (unpublished)

(“The District Court properly refused to give any weight to the severity of the statutory

-3- minimum sentences for the § 924(c) counts when determining the sentence for the

[underlying] counts.”); United States v. McCullers, 395 F. App’x 975, 978 (4th Cir.

2010) (unpublished) (“[U]nder § 924(c), a defendant is first sentenced for the underlying

drug trafficking offense, without consideration for the applicable consecutive sentences

related to the firearm violations.”). But see United States v. Webster, 54 F.3d 1, 4 (1st

Cir. 1995) (“[I]n departing from a guideline sentence the district court is free to exercise

its own judgment as to the pertinence, if any, of a related mandatory consecutive

sentence.”).

The majority cites to §§ 3553 and 3661, which set the general sentencing policies

district courts must follow. (Majority Op. 4-9.) I agree that § 924(c) strays from these

general policies, and from our history of individualized judicial sentencing practices.

(See Majority Op. 4-5.) But “specific statutory provisions prevail over more general

provisions.” United States v. Burke, 633 F.3d 984, 989 (10th Cir. 2011) (quotation

omitted). And Congress may impinge upon judicial discretion by setting mandatory

minimums. See United States v. Hatch, 925 F.2d 362, 363 (10th Cir. 1991).

In addition to the general statutory provisions, the majority relies on 18 U.S.C.

§ 1028A, another mandatory minimum that includes language similar to § 924(c), but

adds the proviso that “a court shall not in any way reduce the term to be imposed for [an

underlying] crime so as to compensate for, or otherwise take into account, any separate

term of imprisonment imposed or to be imposed for a violation of this section.”

§ 1028A(b)(3). If the “in addition to” language contained in both § 924(c) and § 1028A

were enough, the majority concludes, this latter proviso would be superfluous. (Majority

-4- Op. 14-15.) But Congress may include technically unnecessary language out of an

abundance of caution under the canon ex abundanti cautela. See Marx v. Gen. Revenue

Corp., 668 F.3d 1174, 1183 (10th Cir. 2011). Indeed, the legislative history of § 1028A

indicates that Congress directed the mandatory minimum to be imposed “in addition to

any term of imprisonment for the underlying offense,” and included subsection (b)(3) “to

ensure the intent of th[e] legislation is carried out.” H.R. Rep. No. 108-528, at 10 (2004),

reprinted in 2004 U.S.C.C.A.N. 779, 785-86. That Congress chose a belt-and-suspenders

approach in one statute does not render suspenders alone insufficient.

Finally, the majority cites to a Guidelines application note, U.S.S.G. § 2K2.4, cmt.

n.4, which provides that a sentencing enhancement for using a firearm should not be

applied to an underlying crime of violence if the defendant is also convicted under

§ 924(c). (See Majority Op. 18-19.)1 Whether this note is consistent with the statute is a

reasonable question, but not one before us. It may be that the application note

permissibly allows for consideration of a § 924(c) conviction rather than a § 924(c)

sentence given that its treatment of the enhancement does not vary based on which of

§ 924(c)’s several mandatory minimum sentences applies. In any event, a Guidelines

1 The availability of this enhancement for an underlying crime of violence absent a § 924(c) conviction explains most of the cases discussing the legal relatedness of the two charges. (See Majority Op. 21 & n.6.) These cases concern resentencing for defendants whose § 924(c) convictions were vacated. See, e.g., United States v. Mendoza, 118 F.3d 707, 710 (10th Cir. 1997). But see United States v. Watkins, 147 F.3d 1294, 1296-97 (11th Cir. 1998) (holding that the availability of the § 2D1.1(b)(1) enhancement is not “an integral component of the court’s jurisdiction to resentence on unchallenged counts” after a § 924(c) conviction is vacated).

-5- application note cannot trump plain statutory language. See Dorsey v. United States, 132

S. Ct. 2321, 2327 (2012).

My colleagues present the best argument I have seen for the proposition that

district courts may consider § 924(c) mandatory minimums when sentencing defendants

for underlying crimes.2 The plain language of the statute, however, compels me to

2 I also agree with my colleagues in their resolution of Smith’s argument regarding the admission of the firearm toolmark analysis. (See Majority Op. 30 n.13.) -6-