Busic v. United States
Opinion of the Court
delivered the opinion of the Court.
Title 18 U. S. C. § 924 (c) authorizes the imposition of enhanced penalties on a defendant who uses or carries a firearm while committing a federal felony. The question for decision in these cases is whether that section may be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. We hold that the sentence received by such a defendant may be enhanced
I
Petitioners Anthony LaRocca, Jr., and Michael Busic were tried together on a multicount indictment charging drug, firearms, and assault offenses flowing from a narcotics conspiracy and an attempt to rob an undercover agent. The evidence showed that in May 1976 the two arranged a drug buy with an agent of the Drug Enforcement Administration who was to supply $30,000 in cash. When the agent arrived with the money, LaRocca attempted to rob him at gunpoint. The agent signalled for reinforcements, and as other officers began to close in LaRocca fired several shots at them. No one was hit and the agents succeeded in disarming and arresting LaRocca. Busic was also arrested and the officers seized a gun he was carrying in his belt but had not drawn. Additional weapons were found in the pair's automobile.
A jury in the United States District Court for the Western District of Pennsylvania convicted petitioners of narcotics and possession-of-firearms counts,
The defendants appealed, contending, among other things, that they could not be sentenced consecutively for assaulting a federal officer with a dangerous weapon as defined in 18 U. S. C. § 111
Following this Court’s decision in Simpson v. United States, supra, the Court of Appeals granted a petition for rehearing and vacated its double jeopardy holding with regard to LaRocca on grounds there was no reason to reach the constitutional question. 587 F. 2d, at 587-589. Thereafter, it proceeded as a matter of statutory construction to arrive at a nearly identical conclusion — namely, that LaRocca’s sentence
II
We turn first to the case of petitioner LaRocca because it poses most directly the key question of legislative intent. Our starting point, like that of the parties, is Simpson, supra. There we considered the relationship between § 924 (c) and the federal bank robbery statute, 18 U. S. C. § 2113, which, like the assault provision at issue here, 18 U. S. C. § 111, predates § 924 (c) and provides by its own terms for enhanced punishment where the felony is committed with a dangerous weapon.
We disagree. In our view, Simpson’s language and reasoning support one conclusion alone — that prosecution and enhanced sentencing under § 924 (c) is simply not permissible where the predicate felony statute contains its own enhancement provision. This result is supported not only by the general principles underlying the doctrine of stare decisis— principles particularly apposite in cases of statutory construction — but also by the legislative history and relevant canons of statutory construction. The Government has not persuaded us that this result is irrational or depends upon implausible inferences as to congressional intent. And to the
Our reasoning has several strands. It begins, as indeed it must, with the text and legislative history of § 924 (c). By its terms, that provision tells us nothing about the way Congress intended to mesh the new enhancement scheme with analogous provisions in pre-existing statutes defining federal crimes. Moreover, as Simpson noted, 435 U. S., at 13, and n. 7, § 924 (e) was offered as an amendment on the House floor by Representative Poff, 114 Cong. Rec. 22231 (1968), and passed on the same day. Id., at 22248. Accordingly, the committee reports and congressional hearings to which we normally turn for aid in these situations simply do not exist, and we are forced in consequence to search for clues to congressional intent in the sparse pages of floor debate that make up the relevant legislative history. The crucial material for present purposes is the following observation by Representative Poff:
“For the sake of legislative history, it should be noted that my substitute is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies of the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies.” Id., at 22232.
Simpson pointed out that “[t]his statement is clearly probative of a legislative judgment that the purpose of § 924 (c) is
Reliance on Representative Poff’s statement of legislative intent is consistent with the position taken by the Department of Justice in 1971 when it advised prosecutors not to proceed under §924 (c)(1) if the predicate felony statute provided for “ ‘increased penalties where a firearm is used in the commission of the offense,’ ” Simpson, supra, at 16, quoting 19 U. S. Attys. Bull. No. 3, p. 63 (U. S. Dept, of Justice, 1971). Moreover, this view is fully consistent with two tools of statutory construction relied upon in Simpson. The first is the oft-cited rule that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’ ” United States v. Bass, 404 U. S. 336, 347 (1971), quoting Rewis v. United States, 401 U. S. 808, 812 (1971). And the second is the principle that a more specific statute will be given precedence over a more general one, regardless of their temporal sequence. Preiser v. Rodriguez, 411 U. S. 475, 489-490 (1973). In Simpson, these principles counseled against double enhancement. They served as “an outgrowth of our reluctance to increase or multiply punishments absent
The Government seeks to minimize the force of these principles of statutory construction by urging (1) that there is no ambiguity in § 924 (c) and thus that the rule of lenity is not properly called into play and (2) that in fact it is § 924 (c) that is the more specific statute because it relates only to firearms while § 111 would permit enhancement for any dangerous weapon. We find each contention flawed. As to the first, the claim that there exists no ambiguity does not stand up. Plainly the text of the statute fails to address the issue pertinent to decision of these cases — whether Congress intended (1) to provide for enhanced penalties only for crimes not containing their own enhancement provisions, (2) to provide an alternative enhancement provision applicable to all felonies, or (3) to provide a duplicative enhancement provision which would permit double enhancement where the underlying felony was proscribed by a statute like § 111. Our task here, as in Simpson, is to ascertain as best we can which approach Congress had in mind. The rule of lenity, like reference to appropriate legislative materials, is one of the tools we use to do so.
The Government’s second contention — that § 924 (c) rather than § 111 should be viewed as the more specific statute — is both facially unpersuasive
In addition to contesting the rule of lenity and specific-versus-general arguments, the Government contends that our reading of the legislative materials is unreasonable because those who supported the Poff amendment — including Representative Poff himself — were clearly committed to meting out stiff penalties for use of a firearm in the course of a felony and would not have followed any course inconsistent with that commitment. The argument is overdrawn. In the first place, we do not think our construction is inconsistent with a congressional desire to deal severely with firearm abuses. As we understand it, the Government's argument is not that our construction reads Congress to have diminished the penalty for firearm use, but only that our construction fails to enhance that penalty to the hilt. Yet it is patently clear that Congress too has failed to enhance that penalty to the hilt — it set maximum sentences as well as a variety of other limits on the available punishment. Thus, while Congress had a general desire to deter firearm abuses, that desire was not unbounded. Our task here is to locate one of the boundaries, and the inquiry is not advanced by the assertion that Congress wanted no boundaries.
More specifically, some accommodation between § 924 (c) and statutes like § 111 is obviously necessary. And since some pre-existing statutes provided for sentences less severe than § 924 (c) and others for penalties more severe,
The fact that the enhanced sentences authorized in some predicate felony statutes are greater than those set forth in § 924 (c) while those in others are less provides a partial response to the Government’s contention that our construction would lead to irrational sentencing patterns in which some less severe crimes are punished more than other more severe ones.
Ill
What we have said thus far disposes of LaRocca’s case by making it clear that he may not be sentenced under § 924 (c) for using his gun to assault the federal officers. This holding also applies in Busic’s case. But in that case the Government has a fallback position. Even if a person who uses a gun to violate § 111 may not be sentenced for doing so under § 924 (c)(1), the argument goes, a person who carnes a gun in the commission of a § 111 violation may be sentenced under § 924 (c) (2) because the enhancement provision of § 111 does not apply to those who carry but do not use their weapons. Thus, the Government urges, whatever our holding with regard to LaRocca, Busic may be sentenced under § 924 (c) (2) for carrying his gun while committing the crime of aiding and abetting LaRocca’s violation of § 111.
The central flaw in this argument as applied here is that Busic is being punished for using a weapon. Through the combination of § 111 and 18 U. S. C. § 2, he was found guilty as a principal of using a firearm to assault the undercover agents.
So ordered.
The facts are recited in the opinion of the United States Court of Appeals for the Third Circuit. 587 F. 2d 577, 579-580 (1978).
The five narcotics counts alleged violations of 21 U. S. C. §§ 841 (a) (1), 843 (b), and 846. The firearms counts involving both petitioners charged violations of 26 U. S. C. §§ 5861 (c), 5861 (d), and 5871, and 18 U. S. C. §§ 922 (h) and 924 (a). LaRocca was named in six of these counts and Busic in five. In addition, Busic was convicted on three counts of unlawful firearms possession in violation of 18 U. S. C. App. § 1202 (a) (1). The indictment is reproduced at App. 5-15.
The § 924 (e) counts on which the two were convicted recited as predicate felonies both the narcotics violation^ and the assaults on federal officers. In the courts below the Government attempted to support the § 924 (c) convictions in part by arguing that whatever their validity when superimposed on the assault charges, they could validly be grounded on the drug counts. The Court of Appeals rejected this contention, concluding that the jury might have found the drug conspiracy to have come to an end before the robbery and assault. 587 F. 2d, at 584, n. 5, and 588, n. 3. The Government does not press this argument in this Court, and we accordingly treat the eases as though the § 924 (c) charges recited only the assaults on federal officers as predicate felonies.
Title 18 U. S. C. § 111 provides as follows:
“Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
“Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
Among the persons designated in 18 U. S. C. § 1114 are officers or employees of the Drug Enforcement Administration.
Title 18 U. S. C. § 924 (c) provides:
“Whoever—
“(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or
“(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States [,]
“shall, in addition to the punishment provided for the commission of
For present purposes, §§2113 and 111 are fully analogous. Therefore, what Simpson held of the relationship between § 924 (c) and the one applies to that section’s relationship with the other as well.
Petitioners in Simpson had been sentenced under both enhancement provisions. 435 U. S., at 9.
Simpson’s final paragraph stated in part: “Accordingly, we hold that in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both § 2113 (d) and § 924 (c).” Id., at 16.
Section 924 (e) was enacted as part of the Gun Control Act of 1968 in the wake of the assassinations of Senator Robert F. Kennedy and Rev. Martin Luther King, Jr. It clearly was an attempt to take major steps to prevent firearm abuses. Thus, it is argued, it is unlikely that Congress would have wanted the severe penalties of § 924 (c) to be pre-empted by less stringent penalties provided in pre-existing enhancement provisions.
For example, the Government notes that under such a holding a person who breaks into a Post Office in violation of 18 U. S. C. §2115, which contains no enhancement provision, could receive an extra 10 years under § 924 (c) for using a gun to shoot the lock off. In contrast, the sentence of a person who draws a gun and fires a number of shots while robbing a bank could not be enhanced under that provision because the bank robbery statute’s enhancement clause would take precedence. That clause, §2113 (d), permits a sentence of up to 25 years, but even if he had not used a weapon this person could have received 20 years under § 2113 (a). Accordingly, the incremental penalty the bank robber can receive for using the firearm is only 5 years as opposed to 10 for the Post Office robber.
This interpretation receives additional support from the fact that the Conference Committee chose the Poff version over a Senate proposal which, according to its sponsor, 114 Cong. Rec. 27142 (1968), would have permitted enhancement for the use of a firearm even where the predicate offense contained its own enhancement clause. H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 31-32 (1968). We recognize, as the Government points out, that the Senate version differed in other respects as well; but insofar as it points in any direction this chain of events supports reliance on the Poff statement.
Indeed, § 924 (c) is itself fairly broad. It refers to “firearms,” a term defined in 18 U. S. C. §§ 921 (a) (3) and (4) to include bombs, grenades, rockets, mines, and similar devices in addition to guns.
The disposition in Simpson was to remand for proceedings consistent with the opinion of the Court. On remand, the Court of Appeals vacated the § 924 (c) sentences and approved and affirmed those under § 2113 (d) — a disposition that would have been improper were the Government correct in its specificity argument.
Section 924 (c) provides for maximum incremental penalties for use of a firearm of 10 years for a first offender and 25 years for a second offender. Under §2113, the incremental penalty available for use of a dangerous weapon in the course of an otherwise forceful bank robbery is 5 years
One of the Government’s examples is described in n. 10, supra. The unlikeliness of the hypothetical and the fact that it compares only incre
Title 18 U. S. C. § 2 provides in relevant part that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
On these facts, for example, the Government’s view would permit Busic — the aider and abettor — to be sentenced under both § 924 (c) and § 111 — while LaRocca — the triggerman — could be sentenced only under the latter. That this is so is a product not of our holding in Part II, but of the Government’s theory itself. This is quite clear if one assumes for purposes of argument that LaRocca could have been punished under § 924 (c) (1) for using his gun. Were that the case, Busic, too would have been guilty of that crime as an aider and abettor. And the Government’s argument here would lead to the conclusion that he could also be guilty of violating § 924 (c) (2) by carrying his own gun. In short, while he neither shot nor drew his gun, he would have been subject to fully twice the penalties that would have faced his more culpable comrade.
Our result with regard to Busic flows as much from the logic and language of 18 U. S. C. § 2 as from anything peculiar to § 924 (c). Section 2 makes Busic punishable “as a principal,” and those words mean
The Government makes a conditional plea that should we find § 924 (c) to be inapplicable to these petitioners we vacate not only the § 924 (c) sentences, but also those imposed by the District Court under § 111. This, the Government urges, would permit that court to resentence petitioners under the enhancement provision of the latter statute. The argument is that the District Court intended to deal severely with the assaults in question and should not be prevented from doing so by its choice of the incorrect enhancement provision. The Court of Appeals has not considered this contention in this context and we are reluctant to do so without the benefit of that court’s views. Accordingly, we express no opinion as to whether in the particular circumstances of these eases such a disposition would be permissible.
Concurring Opinion
concurring.
I join the Court’s opinion, holding that the decision in Simpson v. United States, 435 U. S. 6 (1978), leads to the conclusion that 18 U. S. C. § 924 (c) is inapplicable where a defendant is charged with committing a substantive federal offense violative of a statute that already provides for enhanced punishment for the use of a firearm.
Dissenting Opinion
dissenting.
Under 18 U. S. C. § 924 (c), “[wjhoever — (1) uses a firearm to commit any [federal] felony ... , or (2) carries a firearm unlawfully during the commission of any [federal] felony,” is subject to a term of imprisonment in addition to that provided for the felony in question. In Simpson v. United States, 435 U. S. 6, which involved both § 924 (c)(1) and a felony proscribed by a statute that itself authorizes an enhanced penalty if a dangerous weapon is used, the Court held that Congress did not intend to authorize the imposition
Congress enacted § 924 (c) as part of the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213. That legislation, enacted the year in which both Robert Kennedy and Martin Luther King, Jr., were assassinated, was addressed largely to the “increasing rate of crime and lawlessness and the growing use of firearms in violent crime.” H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968). A primary objective of § 924 (c), as explained by its sponsor, Representative Poff, was to “persuade the man who is tempted to commit a Federal felony to leave his gun at home.” 114 Cong. Rec. 22231 (1968). Towards that end, § 924 (c) provides for a prison term, in addition to that provided for the underlying felony, of not less than 1 year nor more than 10 in the case of a first offender, and of not less than 2 years nor more than 25 in the case of a second or subsequent offender. It further provides that a sentence imposed under § 924 (c) is not to run concurrently with the sentence for the predicate felony and that, in cases of repeat offenders, the defendant cannot receive probation or a suspended sentence.
Before the enactment of § 924 (c), earlier Congresses had already authorized enhanced penalties for using a dangerous weapon in the commission of certain especially serious federal felonies, including assault on a federal officer, 18 U. S. C. § 111, and bank robbery, 18 U. S. C. §§ 2113 (a), (d). Those enhancement provisions authorize terms of imprisonment of
In Simpson, the Court held that Congress did not intend the imposition of enhanced punishments under both § 924 (c)(1) and the enhancement provision for a predicate felony. That conclusion found substantial support in the statement of Representative Poff on the House floor that “[f]or the sake of legislative history, it should be noted that my [bill] is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies oh the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies.” 114 Cong. Rec. 22232 (1968).
The issue here is not that of double punishment, but instead whether the Government may obtain enhancement of punishment under § 924 (c)(1), rather than under the enhancement provision for the predicate felony. The Court today concludes that Congress did not intend § 924 (c)(1) to apply at all to a predicate felony proscribed by a statute with its own enhancement provision. It is thus the Court’s view that the Government may obtain an enhanced sentence only under the enhancement provision for the underlying felony itself.
Although this conclusion finds support in certain passages in Simpson and in the literal terms of Representative Poff’s statement on the House floor, it is not supported by the actual holding in Simpson, the language of the statute itself, or a fair appraisal of the intent of Congress in enacting § 924 (c). In Simpson, the Court decided only that “in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced [to enhanced punishments] under both § 2113 (d) and § 924 (c).” 435 U. S., at 16 (em
To be sure, Representative Poff stated that his bill “[was] not intended to apply” to certain felonies proscribed by statutes that contain their own enhancement provisions. But that statement could as easily have been directed to the question in Simpson — whether §924 (c)(1) can be invoked in addition to a previously enacted enhancement provision— as to the question in this case — whether § 924 (c)(1) can be invoked in lieu of such a provision.
I agree with the holding in Simpson that Congress did not intend to “pyramid” punishments for the use of a firearm in a single criminal transaction. Yet I find quite implausible the proposition that Congress, in enacting §924 (c)(1), did not intend this general enhancement provision — with its stiff sanctions for first offenders and even stiffer sanctions for recidivists — to serve as an alternative source of enhanced punishment for those who commit felonies, such as bank robbery and assaulting a federal officer, that had been previously singled out by Congress as warranting special enhancement, but for which a lesser enhancement sanction than that imposed by § 924 (c) had been authorized. In the light of the expressed concerns of Congress in enacting the Gun Control Act of 1968 in general and § 924 (c)(1) in particular, it is far more reasonable to conclude that Congress intended § 924 (c)(1) to mean precisely what it says, namely, that it applies to any federal felony.
It is my view, in sum, that § 924 (c) (1) applies to all federal felonies, though subject to the limitation in Simpson against double punishment. Under this reading of the statute, the Government may obtain an enhanced sentence under either
For the foregoing reasons, I dissent
I do not agree with the Court of Appeals that Busic could be given enhanced punishments both for aiding and abetting LaRocea’s armed assault on a federal officer, in violation of 18 U. S. C. §§ 2, 111, and for unlawfully carrying his own gun while doing so, in violation of 18 U. S. C. § 924 (c) (2). Since Busic was convicted of armed assault “as a principal” under the aiding and abetting statute, 18 U. S. C. § 2, he must be viewed as having used LaRocca’s gun as well as carried his own in the course of committing the offense; and, like the Court, ante, at 410-411,1 am unpersuaded that § 924 (c) authorizes cumulative punishments for the use of one gun and the unlawful carrying of another in a single criminal transaction. It is my view, therefore, that Busic could have been given an enhanced sentence under either § 924 (c) (2) or §§ 2, 111, but not under both.
Dissenting Opinion
dissenting.
I dissented from this Court’s decision in Simpson v. United States, 435 U. S. 6 (1978), and continue to believe that case was wrongly decided. Now, as then, I am quite amazed at this Court’s ability to say that 18 U. S. C. § 924 (c) “tells us nothing about the way Congress intended to mesh the new enhancement scheme with analogous provisions in pre-exist-ing statutes defining federal crimes,” ante, at 405, even though that section provides quite clearly that the use of a firearm in the commission of “any felony” shall be punished by up to 10 years’ imprisonment “in addition to the punishment provided for the commission-of such felony. . . .” Nor do I find any more persuasive the Court’s rehash of the legislative history of § 924 (c), including Simpson’s unwarranted reliance upon the remark of Representative Poff, a remark that the Court today labels “the Poff rule,” see ante, at 409, n. 14, and that might more properly be labeled “the Poff amendment” (albeit not intended as such by its proponent).
Were Simpson demonstrably a case of statutory construction, I could acquiesce to the Court’s reading of § 924 (c) in
Recently, this Court unanimously rejected Simpson’s constitutional premise. In Whalen v. United States, 445 U. S. 684 (1980), six Members of this Court held that Congress’ intent to impose cumulative punishments at a single criminal proceeding completely controlled the question of double jeopardy. See id., at 688-689; id., at 697-698 (Blackmun, J., concurring in judgment). See also ante, at 413; (Blackmun, J., concurring). Three other Members of this Court, including myself, argued that the permissibility of cumulative punishments in the same criminal proceeding presented no double jeopardy question whatsoever. See Whalen v. United States, supra, at 696 (White, J., concurring in part and concurring in judgment); at 701-707 (Rehnquist, J., joined by Burger, C. J., dissenting). I believe that this Court, having thus disposed of Simpson’s constitutional underpinnings, should reconsider its holding that § 924 (c) does not, in fact, apply to “any felony.”
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