Murder in Bronx drug trafficking scheme raises issue of concurrent sentencing
on Mar 27, 2023 at 12:50 pm
The murder of a Bronx man by his rival in a 2002 drug trafficking scheme has reached the Supreme Court on a seemingly bloodless issue: Should two related portions of the Armed Career Criminal Act be treated for sentencing purposes as parts of a whole, or instead as distinct pieces?
Efrain Lora was the head of a cocaine trafficking ring in the Bronx. On August 11, 2002, he and three lieutenants shot and killed Andrew Balcarran, a rival drug dealer, in retaliation for Balcarran’s aggression in a turf dispute.
Balcarran’s murder went unsolved for a decade. But in 2014, Lora was indicted on charges that he had violated 18 U.S.C. § 924(j)(1), which states in part that if a defendant “in the course of a violation of subsection (c), causes the death of a person through the use of a firearm,” he “shall be punished by death or by imprisonment for any term of years or for life” if “the killing is a murder …”
The “subsection (c)” referenced in this provision includes Section 924(c)(1)(A), which provides that anyone “who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime” receive a sentence of “not less than 5 years.”
Together, Sections 924(c) and (j) authorize punishment for anyone who furthers a drug trafficking crime while using a firearm to commit a murder. This punishment could be in addition to punishment for the underlying drug and firearm offenses. The usual rule in federal court is that district judges have discretion to run multiple sentences either concurrently or consecutively. However, critical to Lora’s case, Section 924(c)(1)(D)(ii) contains a provision specifically prohibiting concurrent sentences: It provides that “[n]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment …” (italics added). Over Lora’s protest that this sentencing rule did not apply to him, the district court imposed a 25-year sentence for conspiracy to murder, to run consecutively with a five-year term for the firearm conviction.
At its most basic level, the dispute between Lora and the government before the Supreme Court is simple. Lora says that Section 924(c)’s special ban on concurrent sentences doesn’t apply to him because he wasn’t convicted for using a firearm during a crime. Rather, because he was convicted under Section 924(j) of killing a person using a firearm, his sentence wasn’t imposed “under this subsection.”
The government dismisses Lora’s interpretation as oversimple and absurd, countering that Section 924(j) explicitly incorporates Section 924(c) by reference. Section 924(j) only exists in conjunction with Section 924(c), U.S. Solicitor General Elizabeth Prelogar tells the justices, and they therefore constitute the same subsection for purposes of Section 924(c)’s ban on concurrent sentences.
Lora’s brief starts simply, with a focus on the plain text of the provisions at issue in his case. He notes that he was convicted under Section 924(j), which says nothing about whether sentences may be run concurrently. Although Section 924(c) prohibits concurrent sentences for punishment under “this subsection,” Lora was not convicted under “this subsection,” he asserts. That argument, he notes, is supported by the dictionary, which defines “this” as “the thing that is present or near in place.” Precedent also makes clear, Lora adds, that Section 924(j) is not in the same subsection as Section 924(c)’s ban on concurrent sentences, because “‘subsection’ refers to a subdivision denoted by a lower case letter (here, that is ‘c’).”
But in any event, Lora continues, if Congress had wanted Section 924(c)’s ban on concurrent sentences to apply to Section 924(j), it could simply have referenced convictions “under this section” (instead of “under this subsection”). Alternatively, Lora observes, it could have listed Section 924(j) explicitly within Section 924(c)(1)(D)(ii). Not only did Congress fail to do either of those things, Lora points out, it also put nothing in subsection (j) that specifically incorporates or makes reference to Section 924(c)’s ban on concurrent sentences.
Lora’s next argument pushes back against the government’s contention that Section 924(c) constitutes a lesser-included offense within Section 924(j), meaning that Section 924(j) effectively enumerates nothing more than a sentencing factor or enhancement (for murder) atop the essential elements laid out on firearm possession in Section 924(c). If Section 924(j) isn’t truly a separate offense from Section 924(c), the government reasons, then the sentencing rule attached to one should apply equally to the other.
Lora points to the court’s 2000 decision in Castillo v. United States, which interpreted the provision in Section 924(c)(1)(B)(ii) providing specific punishments for Section 924(c) crimes involving machineguns. In Castillo, the court concluded that using a machinegun was a distinct crime – a holding, Lora argues, that contradicts the government’s contention that Sections 924(c) and 924(j) impose punishment for the same offenses.
The government’s principal argument is that the text and structure of Section 924 demonstrate that subsection (c)’s ban on concurrent sentences applies to convictions imposed under Section 924(j). First, Section 924(j) explicitly incorporates Section 924(c)’s requirement that the prosecution prove the commission of a “crime of violence” or “drug-trafficking” crime. (Section 924(j) then adds the element of a murder committed in the course of such crime and authorizes a much more severe punishment.) Thus, (j) and (c) “work together to define the offense of which Lora was convicted.” Because Lora’s conviction under Section 924(j) necessarily entailed a violation of Section 924(c), the government contends, he is subject to statutory-minimum sentencing under both provisions. “Congress incorporated Section 924(c) as a whole into Section 924(j),” the government concludes.
The government also argues that Congress did not intend (c) and (j) to be treated as separate subsections. “It is highly unlikely that Congress, which clearly intended to impose additional cumulative punishments for using firearms during violent crimes in cases where no murder occurs, would turn around and not intend to impose cumulative punishments … in cases where there are actual murder victims,” the government asserts.
Lora counters that the plain language of the statute excludes this interpretation, and that, if Congress wants the prohibition on concurrent sentences to extend to (j), it is for Congress and not the court to say so.
While Lora claims the “plain text” of the statute favors him, he also points to a long common law tradition of district court discretion to run sentences concurrently or consecutively. That tradition, he argues, could only be overcome by a clear statement in the statute to the contrary – which exists for convictions imposed under Section 924(c), but not for convictions imposed under other subsections of Section 924.
The government counters that Lora’s “clear statement” argument assumes its own conclusion. Lora admits both that (c) contains a clear statement contradicting the common law tradition of discretion to run sentences concurrently. He admits that this clear statement applies to convictions imposed under (c). Yet that is one of the main issues in the case at this stage: Was Lora’s conviction imposed only under (j), or under (j) and (c) in conjunction? Thus, according to the government, Lora’s “clear statement” argument doesn’t provide an independent reason to rule in his favor, but instead depends on whether Lora is correct that he was not convicted under (c).
It will be interesting to see how the justices who tend toward conservatism in criminal cases react to Lora’s “plain text” argument. In many criminal cases, we see the government insisting on adhering to the plain text of the statute, while the defendant is the one appealing to more complicated and nuanced arguments about the structure and relationship of statutory provisions.
Another thing to watch for at oral argument is how interested the justices seem in the government’s warning that if the court agrees with Lora that subsections (j) and (c) truly punish separate offenses, future defendants will be subject to what amounts to double punishment for the same offense. The government insists that such an undesirable result can only be avoided by construing Section 924(c) as the offense and Section 924(j) as an enhancement for murder. Will the justices be moved to decide a major constitutional double jeopardy issue even when the defendant in the case does not claim he is being subjected to double jeopardy? We’ll know more on Tuesday.