PRELIMINARY PRINT

Volume 599 U. S. Part 1 Pages 453–464

OFFICIAL REPORTS OF

THE SUPREME COURT June 16, 2023

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. OCTOBER TERM, 2022 453

Syllabus

LORA v. UNITED STATES

certiorari to the united states court of appeals for the second circuit No. 22–49. Argued March 28, 2023—Decided June 16, 2023 A federal court imposing multiple prison sentences typically has discretion to run the sentences concurrently or consecutively. See 18 U. S. C. § 3584. An exception exists in § 924(c), which provides that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment.” § 924(c) (1)(D)(ii). Here, the Court considers whether § 924(c)'s bar on concur- rent sentences extends to a sentence imposed under a different subsec- tion, § 924( j). Petitioner Efrain Lora was convicted of the federal crime of aiding and abetting a violation of § 924( j)(1), which penalizes “a person who, in the course of a violation of subsection (c), causes the death of a person through the use of a frearm,” where “the killing is a murder.” A viola- tion of subsection (c) occurs when a person “uses or carries a frearm” Page Proof Pending Publication “during and in relation to any crime of violence or drug traffcking crime,” or “possesses a frearm” “in furtherance of any such crime.” § 924(c)(1)(A). Lora was also convicted of a second federal crime, con- spiring to distribute drugs. At sentencing, the District Court concluded that it lacked discretion to run the sentences for Lora's two convictions concurrently, because § 924(c)(1)(D)(ii)'s bar on concurrent sentences governs § 924( j) sen- tences. The District Court sentenced Lora to consecutive terms of im- prisonment for the drug-distribution-conspiracy count and the § 924( j) count. The Court of Appeals affrmed. Held: Section 924(c)(1)(D)(ii)'s bar on concurrent sentences does not govern a sentence for a § 924( j) conviction. A § 924( j) sentence therefore can run either concurrently with or consecutively to another sentence. Pp. 456–464. (a) Sections 924(c) and 924( j) criminalize the use, carrying, and pos- session of frearms in connection with certain crimes. Subsection (c) lays out a set of offenses and their corresponding penalties. It also mandates that a “term of imprisonment imposed on a person under this subsection” must run consecutively with other sentences. § 924(c)(1) (D)(ii). Subsection ( j) likewise lays out offense elements and corre- sponding penalties. Unlike subsection (c), subsection ( j) contains no consecutive-sentence mandate. Pp. 456–458. 454 LORA v. UNITED STATES

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(b) Subsection (c)'s consecutive-sentence mandate applies only to the terms of imprisonment prescribed within subsection (c). A sen- tence imposed under subsection ( j) does not qualify. Subsection ( j) is located outside subsection (c) and does not call for imposing any sen- tence from subsection (c). And while subsection ( j) references subsec- tion (c), that reference is limited to offense elements, not penalties. Pp. 458–459. (c) Congress did not, as the Government maintains, incorporate § 924(c) as a whole into § 924( j) such that a § 924( j) defendant faces sub- section ( j)'s penalties plus subsection (c)'s penalties. Subsection ( j) no- where mentions—let alone incorporates—subsection (c)'s penalties. Moreover, as subsections (c) and ( j) are written, a sentencing court can- not always obey both sets of penalties. To avert potential confict be- tween subsections (c) and ( j), the Government points to another provi- sion, § 924(c)(5), as a model. But assuming without deciding whether § 924(c)(5) operates as the Government says, Congress did not im- plement that design in subsection ( j). Equally unavailing is the Government's argument that, under double jeopardy principles, a de- fendant cannot receive both subsection (c) and subsection ( j) sentences for the same conduct. That view of double jeopardy can easily be squared with the conclusion that subsection ( j) neither incorporates sub- Page Proof Pending Publication section (c)'s penalties nor triggers the consecutive-sentence mandate. Pp. 459–462. (d) It is not “implausible,” as the Government asserts, for Congress to have imposed the harsh consecutive-sentence mandate under subsec- tion (c) but not subsection ( j), which covers more serious offense con- duct. That result is consistent with the statute's design. Unlike sub- section (c), subsection ( j) generally eschews mandatory penalties in favor of sentencing fexibility. Of a piece, subsection ( j) permits fexi- bility to choose between concurrent and consecutive sentences. Con- gress chose a different approach to punishment in subsection ( j) than in subsection (c), and the Court must implement the design Congress chose. Pp. 462–464. Vacated and remanded.

Jackson, J., delivered the opinion for a unanimous Court.

Lawrence D. Rosenberg argued the cause for petitioner. With him on the briefs were Andrew J. M. Bentz, Charles E. T. Roberts, and Anne Marie Lofaso. Erica L. Ross argued the cause for the United States. With her on the brief were Solicitor General Prelogar, As- Cite as: 599 U. S. 453 (2023) 455

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sistant Attorney General Polite, and Deputy Solicitor Gen- eral Feigin.* Justice Jackson delivered the opinion of the Court. When a federal court imposes multiple prison sentences, it can typically choose whether to run the sentences concur- rently or consecutively. See 18 U. S. C. § 3584. An excep- tion exists in subsection (c) of § 924, which provides that “no term of imprisonment imposed on a person under this sub- section shall run concurrently with any other term of impris- onment.” § 924(c)(1)(D)(ii). In this case, we consider whether § 924(c)'s bar on concur- rent sentences extends to a sentence imposed under a differ- ent subsection: § 924( j). We hold that it does not. A sen- tence for a § 924( j) conviction therefore can run either concurrently with or consecutively to another sentence.

I Page Proofof Pending In 2002, members Publication a drug-dealing group from the Bronx assassinated a rival drug dealer. The Government accused petitioner Efrain Lora of being one of the group's leaders and acting as a scout during the fatal shooting. After a jury trial, Lora was convicted of aiding and abetting a violation of § 924( j)(1), which penalizes “[a] person who, in the course of a violation of subsection (c), causes the death of a person through the use of a frearm,” where “the killing is a mur- der.” See also § 2(a) (an aider and abettor is punishable “as a principal”). Lora was also convicted of conspiring to dis- tribute drugs, in violation of 21 U. S. C. §§ 841 and 846. At sentencing, the District Court rejected two of Lora's arguments about his § 924( j) conviction. Most pertinent here, Lora argued that the District Court had discretion to

*Briefs of amici curiae urging reversal were fled for the American Bar Association by Deborah Enix-Ross and Mary-Christine Sungaila; and for the National Association of Criminal Defense Lawyers by Bruce P. Mer- enstein and David M. Porter. 456 LORA v. UNITED STATES

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run the § 924( j) sentence concurrently with the drug- distribution-conspiracy sentence. The District Court held it lacked such discretion. Applying Circuit precedent, it held that § 924(c)(1)(D)(ii)'s bar on concurrent sentences governs § 924( j) sentences, such that Lora's two sentences had to run consecutively. See United States v. Barrett, 937 F. 3d 126, 129, n. 2 (CA2 2019). Lora also argued that a § 924( j) con- viction is not subject to the mandatory minimum sentences specifed in § 924(c). Disagreeing once again, the District Court applied the fve-year mandatory minimum under § 924(c)(1)(A) to Lora's sentencing calculation. The District Court ultimately sentenced Lora to 30 years of imprisonment: 25 years on the drug-distribution-conspir- acy count and—consecutively—fve years on the § 924( j) count. Lora also received fve years of supervised release. The Court of Appeals affrmed, adhering to its precedent barring § 924( j) sentences from running concurrently with other sentences. That decision reinforced a confict among Page Proof Pending Publication the Courts of Appeals over whether § 924(c)(1)(D)(ii)'s concurrent-sentence bar governs § 924( j) sentences.1 We granted certiorari to resolve the confict. 598 U. S. ––– (2022). II A This case concerns federal laws that criminalize the use, carrying, and possession of frearms in connection with cer- tain crimes. The relevant parts of that scheme are spread across two subsections of 18 U. S. C. § 924.

1 Compare, e. g., Barrett, 937 F. 3d, at 129, n. 2 (§ 924(c)(1)(D)(ii)'s concurrent-sentence bar governs § 924( j) sentences); United States v. Ber- rios, 676 F. 3d 118, 140–144 (CA3 2012); United States v. Bran, 776 F. 3d 276, 280–282 (CA4 2015); and United States v. Dinwiddie, 618 F. 3d 821, 837 (CA8 2010), with United States v. Julian, 633 F. 3d 1250, 1252–1257 (CA11 2011) (it does not). Cite as: 599 U. S. 453 (2023) 457

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Subsection (c) lays out a set of offenses and their corre- sponding penalties. It begins by making it a crime either to “us[e] or carr[y] a frearm” “during and in relation to any crime of violence or drug traffcking crime,” or to “posses[s] a frearm” “in furtherance of any such crime.” § 924(c)(1)(A). The provision then prescribes “a term of imprisonment” for that offense: a minimum of fve years. § 924(c)(1)(A)(i). Other (more serious) offense elements and “term[s] of im- prisonment” follow within subsection (c). If the frearm is “brandished,” the “term of imprisonment” jumps to a mini- mum of seven years. § 924(c)(1)(A)(ii). If the frearm is “dis- charged,” the minimum becomes 10 years; if the frearm is a “machinegun,” 30 years; and so on. §§ 924(c)(1)(A)–(C), (c)(5). Subsection (c) also provides that “no term of imprisonment imposed on a person under this subsection shall run concur- rently with any other term of imprisonment imposed on the person.” § 924(c)(1)(D)(ii). In other words, the sentence Page Proof Pending Publication must run consecutively, not concurrently, in relation to other sentences. This concurrent-sentence bar (or consecutive- sentence mandate) is at issue in this case. Subsection ( j) was added decades after subsection (c) and its consecutive-sentence mandate.2 Subsection ( j) likewise lays out offense elements and corresponding penalties. It provides: “A person who, in the course of a violation of subsec- tion (c), causes the death of a person through the use of a frearm, shall— “(1) if the killing is a murder (as defned in section 1111), be punished by death or by imprisonment for any term of years or for life; and

2 See 82 Stat. 1224 (enacting subsection (c) in 1968); 84 Stat. 1889–1890 (adding subsection (c)'s consecutive-sentence mandate in 1971); 108 Stat. 1973 (enacting subsection ( j), originally designated as subsection (i), in 1994); 110 Stat. 3505 (redesignating as subsection ( j) in 1996). 458 LORA v. UNITED STATES

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“(2) if the killing is manslaughter (as defned in section 1112), be punished as provided in that section.” § 924( j). Subsection ( j) contains no consecutive-sentence mandate. B Here, Lora was convicted of a subsection ( j) offense. The parties dispute whether the sentence for that offense can run concurrently with another sentence, or whether it is subject to subsection (c)'s consecutive-sentence mandate. We hold the former. Subsection (c)'s consecutive-sentence requirement applies to a “term of imprisonment imposed on a person under this subsection”—i. e., subsection (c). § 924(c)(1)(D)(ii) (emphasis added). By those plain terms, Congress applied the consecutive-sentence mandate only to terms of imprisonment imposed under that subsection. And Congress put subsec- Page Proof Pending Publication tion ( j) in a different subsection of the statute. Drilling into the details confrms that straightforward rea- soning. To begin, subsection (c) sets forth a host of offenses and the corresponding “term[s] of imprisonment” to be im- posed. §§ 924(c)(1), (5); supra, at 457. Those are the “term[s] of imprisonment imposed . . . under this subsection” that the consecutive-sentence mandate references. § 924(c)(1)(D)(ii). That is, by echoing the phrase “term of imprisonment” and referring inwards to “this subsection,” § 924(c)(1)(D)(ii) points to the terms of imprisonment pre- scribed within subsection (c). A sentence imposed under subsection ( j) does not qualify. To state the obvious again, subsection ( j) is not located within subsection (c). Nor does subsection ( j) call for im- posing any sentence from subsection (c). Instead, subsec- tion ( j) provides its own set of penalties. See §§ 924( j)(1)–(2). To be sure, subsection ( j) references subsection (c). But it does so only with respect to offense elements, not penalties. Subsection ( j)'s offense elements include causing death “in Cite as: 599 U. S. 453 (2023) 459

Opinion of the Court

the course of a violation of subsection (c).” § 924( j). And to defne that phrase, one must consult subsection (c)'s offense elements (i. e., what it takes to violate that subsection). But that is where subsection (c)'s role in subsection ( j) stops. One need not consult subsection (c)'s sentences in order to sentence a subsection ( j) defendant. Thus, a defendant who is sentenced under subsection ( j) does not receive a “term of imprisonment imposed . . . under [subsection (c)].” Consequently, § 924(c)(1)(D)(ii)'s consecutive-sentence mandate does not apply.

III A The Government tries to defect this conclusion by blend- ing subsections (c) and ( j) together. It claims that “Con- gress incorporated Section 924(c) as a whole into Section 924( j).” Brief for United States 15. Under that view, a Page Proof Pending Publication subsection ( j) defendant faces subsection ( j)'s penalties plus subsection (c)'s penalties—including subsection (c)'s manda- tory minimum sentences and its consecutive-sentence mandate. The actual statute bears no resemblance to the Govern- ment's vision. Subsection ( j) nowhere mentions—let alone incorporates—subsection (c)'s penalties. Instead, as just ex- plained, subsection ( j)'s only reference to subsection (c) is limited to offense elements. Supra, at 458–459. Moreover, a sentencing court cannot follow both subsec- tion (c) and subsection ( j) as written. Combining the two subsections would set them on a collision course; indeed, in some cases, the maximum sentence would be lower than the minimum sentence. Take voluntary manslaughter using a machinegun in the course of a subsection (c)(1) violation, for example. Subsection (c), because of the machinegun, would command that “the person shall be sentenced to a term of imprisonment of not less than 30 years.” § 924(c)(1)(B)(ii). Subsection ( j), because of the voluntary manslaughter, would 460 LORA v. UNITED STATES

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command that, per § 1112, the person “shall be . . . impris- oned not more than 15 years.” §§ 924( j)(2), 1112(b). To fashion a sentence “not less than 30 years” and “not more than 15 years”—that is, to obey both subsections (c) and ( j)— is impossible. And Congress has not required that unachiev- able result. Instead, subsection ( j) supplies its own compre- hensive set of penalties that apply instead of subsection (c)'s. To avert potential confict between subsections (c) and ( j), the Government tries to knit the two provisions together in a very particular way. In the Government's view, a court sentencing a subsection ( j) defendant should jump to subsec- tion (c), apply the penalties listed there, then jump back to subsection ( j) and add the penalties listed there, then jump back to subsection (c) and impose the consecutive-sentence mandate listed in that subsection. But nothing in subsec- tion ( j) calls for such calisthenics. To assuage that concern, the Government maintains that Congress has done this elsewhere; it says that another provi- Page Proof Pending Publication sion, § 924(c)(5), operates this way. Tr. of Oral Arg. 27, 31. Even if § 924(c)(5) does work in that fashion—which we do not decide—the Government's argument only underscores that subsection ( j) does not. Under § 924(c)(5), a person who, inter alia, uses armor piercing ammunition during and in relation to a crime of vio- lence or drug traffcking crime: “shall . . . “(A) be sentenced to a term of imprisonment of not less than 15 years; and “(B) if death results from the use of such ammunition— “(i) if the killing is murder (as defned in section 1111), be punished by death or sentenced to a term of impris- onment for any term of years or for life; and “(ii) if the killing is manslaughter (as defned in sec- tion 1112), be punished as provided in section 1112.” (Emphasis added.) Cite as: 599 U. S. 453 (2023) 461

Opinion of the Court

According to the Government, § 924(c)(5) adds two penalties together when death results: Someone convicted of murder resulting from the use of such ammunition faces a 15-year mandatory minimum sentence under § 924(c)(5)(A) plus an additional sentence for murder under § 924(c)(5)(B)(i). Tr. of Oral Arg. 27, 31. But subsection ( j) is cast from a different mold. Section 924(c)(5) groups the two penalties together and joins them with the word “and.” In contrast, several unrelated subsec- tions separate subsections (c) and ( j) structurally, and noth- ing joins their penalties textually. So even if those features of § 924(c)(5) make it operate as the Government contends, those aspects of § 924(c)(5) are missing from subsection ( j). In the Government's own telling, then, § 924(c)(5) shows how Congress could have constructed penalties that might ultimately add together. Yet Congress did not implement that design in subsection ( j). Page Proof Pending Publication Equally unavailing is the Government's invocation of dou- ble jeopardy principles. According to the Government's brief, “Section 924( j) amounts to the `same offense' as Sec- tion 924(c) for purposes of the Double Jeopardy Clause,” so “a defendant may be punished for either a Section 924(c) of- fense or a Section 924( j) offense, but not both.” Brief for United States 22–26 (emphasis added; alterations and some internal quotation marks omitted). The Government argues that this conception of double jeopardy confrms subsection ( j) incorporates all of subsection (c). Ibid. We express no position on the Government's view of dou- ble jeopardy, because even assuming it, arguendo, the Gov- ernment's view does not refute our holding on the question presented. The Government says someone cannot receive both subsection (c) and subsection ( j) sentences for the same conduct. But that aligns with our conclusion here: If a de- fendant receives a sentence under subsection ( j), he does not receive a sentence “imposed . . . under [subsection (c)]” that would trigger the consecutive-sentence mandate. § 924(c)(1) 462 LORA v. UNITED STATES

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(D)(ii). Accordingly, the Government's view of double jeop- ardy can easily be squared with our view that subsection ( j) neither incorporates subsection (c)'s penalties nor triggers the consecutive-sentence mandate. B The Government protests that it is “implausible” that Con- gress imposed the harsh consecutive-sentence mandate under subsection (c) but not subsection ( j), which covers more serious offense conduct. Brief for United States 9, 28– 35. Yet that result is consistent with other design features of the statute. Congress plainly chose a different approach to punishment in subsection ( j) than in subsection (c). Subsection (c), frst enacted in 1968, is full of mandatory penalties. It contains mandatory minimum years of imprisonment and mandatory consecutive sentences. In fact, when subsection ( j) was enacted in 1994, subsection (c) specifed not just mandatory Page Proof Pending Publication minimums, but exact mandatory terms of imprisonment. 18 U. S. C. § 924(c)(1) (1994 ed.) (e. g., exactly fve years of im- prisonment for the base subsection (c) offense). Subsection ( j), by contrast, generally eschews mandatory penalties in favor of sentencing fexibility. Unlike subsec- tion (c), subsection ( j) contains no mandatory minimums. Even for murder, subsection ( j) expressly permits a sentence of “any term of years.” § 924( j)(1) (emphasis added). This follows the same pattern as several other provisions enacted alongside subsection ( j) in the Federal Death Penalty Act of 1994, 108 Stat. 1959. In those provisions, as in § 924( j)(1), Congress authorized the death penalty, but also a fexible range of lesser sentences for “any term of years,” with no mandatory minimum or consecutive-sentence mandate.3 In the same law, Congress also enacted a provision allowing 3 108 Stat. 1971–1973, 1976, 1978–1982 (Pub. L. 103–322, §§ 60008, 60010, 60011, 60019–60024). Cite as: 599 U. S. 453 (2023) 463

Opinion of the Court

judges to go below the otherwise-mandatory minimum sen- tence in certain cases.4 Given those choices to favor sen- tencing fexibility over mandatory penalties, it is not “im- plausible,” as the Government asserts, that subsection ( j) permits fexibility to choose between concurrent and consec- utive sentences. Nor is that fexibility incompatible with the seriousness of subsection ( j) offenses. Subsection ( j) merely refects the seriousness of the offense using a different approach than subsection (c)'s mandatory penalties. For murder, subsec- tion ( j) authorizes the harshest maximum penalty possible: death. § 924( j)(1). And for manslaughter, subsection ( j) imposes the same harsh punishment that the Federal Crimi- nal Code prescribes for other manslaughters. See § 924( j)(2) (aligning penalties with § 1112).5 Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection ( j) than under subsec- Page Proof Pending Publication tion (c). It could have added a consecutive-sentence man- date to subsection ( j). It could have written subsection (c)'s consecutive-sentence mandate more broadly. It could have placed subsection ( j) within subsection (c).6 4 Id., at 1985–1986 (Pub. L. 103–322, § 80001) (enacting 18 U. S. C. § 3553(f)). 5 When Congress enacted subsection ( j), it actually imposed higher max- imum penalties for manslaughter under subsection ( j) than what subsec- tion (c) had authorized for the base offense. A base subsection (c) viola- tion triggered a fxed fve-year sentence, while subsection ( j)(2) authorized more: up to 10 years for voluntary manslaughter and six years for involun- tary manslaughter. 18 U. S. C. §§ 924(c)(1), (i)(2), 1112 (1994 ed.); see 110 Stat. 3505 (redesignating subsection (i) as subsection ( j)). This reinforces that Congress designed subsection ( j)'s penalties to account for the seri- ousness of the offense by themselves, without incorporating penalties from subsection (c). 6 Congress specifcally considered and rejected that last possibility. The 1994 Congress had before it a proposal to add, within subsection (c), a provision authorizing the death penalty when a subsection (c) violation 464 LORA v. UNITED STATES

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But Congress did not do any of these things. And we must implement the design Congress chose. * * * Because the consecutive-sentence mandate in § 924(c)(1) (D)(ii) does not govern § 924( j) sentences, the District Court had discretion to impose Lora's § 924( j) sentence concur- rently with another sentence. We vacate the judgment of the Court of Appeals and remand the case for further pro- ceedings consistent with this opinion. It is so ordered.

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results in homicide. See 140 Cong. Rec. 11165, 24066. Congress rejected that option and enacted a different version of that crime bill—which cre- ated subsection ( j). Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions Page Proof Pending Publication for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

None