United States v. Roy Lee Johnson , 25 F.3d 1335 ( 1994 )

DAVID A. NELSON, Circuit Judge,

dissenting.

Defendant Johnson, a professional drug dealer, had two distinct lines of business. Each line of business had its own market and its own economic characteristics. As evidenced by sales records seized at his place of residence, Johnson was in the business of selling the heroin substitute known as Dilau-did to one group of customers, and he was in the business of selling cocaine to a different group of customers. The resale value of the Dilaudid seized at Johnson’s residence was far greater than the value of the cocaine; there was testimony that Johnson’s inventory of Dilaudid (150 pills) could bring as much as $7,500 on the street, while the cocaine would bring only $500 at most.

Although both of the drugs in which Johnson dealt are listed in schedule II of the controlled substances schedules established by 21 U.S.C. § 812 — a listing that classifies both drugs as having “a high potential for abuse” and carrying a risk of “severe” dependence, see § 812(b)(2)(A) and (C) — they are entirely different drugs with altogether different properties.¹ And an impressive body of published circuit court caselaw stretching back sixty years makes it quite clear that simultaneous possession of two different drugs with intent to distribute them constitutes two different crimes. See United States v. Busch, 64 F.2d 27 (2d Cir.), cert. denied, 290 U.S. 627, 54 S.Ct. 65, 78 L.Ed. 546 (1933); Normandote v. United States, 201 F.2d 463 (5th Cir.), cert. denied, 345 U.S. 999, 73 S.Ct. 1141, 97 L.Ed. 1405 (1953); United States v. Pope, 561 F.2d 663 (6th Cir.1977); United States v. Davis, 656 F.2d 153 (5th Cir.1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982); Unit ed States v. Faymore, 736 F.2d 328 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984); United States v. Grandi-son, 783 F.2d 1152 (4th Cir.), cert. denied, 479 U.S. 845, 107 S.Ct. 160, 93 L.Ed.2d 99 (1986); United States v. Dejesus, 806 F.2d 31 (2d Cir.1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1299, 94 L.Ed.2d 155 (1987); Unit ed States v. Bonilla Romero, 836 F.2d 39 (1st Cir.1987), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988). But see United States v. Martin, 302 F.Supp. 498 (W.D.Pa.1969), aff'd, 428 F.2d 1140 (3d Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 361, 27 L.Ed.2d 269 (1970). Our circuit having spo ken decisively on this issue in Pope and Faymore, I take it as given that defendant Johnson was committing one drug trafficking crime by possessing the 150 Dilaudid pills and that he was committing a separate drug trafficking crime by possessing the 14 grams of cocaine.

During each of these crimes, Mr. Johnson used two firearms (a loaded magnum Derringer and a loaded Glenfield semi-automatic rifle) to protect his inventory of drugs. The weapons were available, obviously, to protect both the Dilaudid and the cocaine. The weapons were thus used during and in relation to each of the drug trafficking offenses— and under 18 U.S.C. § 924(c)(1), it is a separate crime, punishable by a mandatory term of imprisonment, to use or carry a firearm “during and in relation to any ... drug trafficking crime....”

The statute says that the prescribed term of imprisonment for anyone who uses or carries a firearm during and in relation to “any” drug trafficking crime shall be imposed “in addition to the punishment provided for such ... drug trafficking crime.... ” And “Mot-withstanding any other provision of law,” the statute goes on to say, a court shall not grant probation to anyone convicted of violating the statute and shall not suspend any such person’s sentence, “nor shall the term of imprisonment imposed under this [statute] run concurrently with any other term of imprisonment _” 18 U.S.C. § 924(c)(1) (emphasis supplied.)

Whatever Congress may subjectively have intended with regard to situations such as Mr. Johnson’s — and we have no way of knowing for sure whether anyone in Congress ever thought about the fact that such situations would be likely to arise — I see no ambiguity in what Congress actually said. What it said, in sum, was that anyone who commits “any” drug trafficking crime (singular, not plural) and uses a firearm in the process must receive a statutorily prescribed sentence that cannot run concurrently with any other sentence. This means that if a person commits two drug crimes, and if he is convicted of using a firearm during and in relation to both, he must receive two non-concurrent statutorily prescribed sentences for using the firearm. I do not see how the words of the statute can be given any other meaning.

To apply the statute as written, the district court concluded in this case, meant sending Mr. Johnson to prison for a total of about 14 years. That is a harsh sentence, no doubt, but hardly a shocking one. The prosecutor could have paved the way for a lower sentence — she could have had the grand jury indict the defendant on only one count under § 924(c) rather than two counts — but Congress has not seen fit to give the courts a corresponding measure of discretion. Mr. Johnson having been convicted on two § 924(c) counts, the statute says that he must be sentenced to consecutive terms on both counts.

Citing Church of the Holy Trinity v. United States, 148 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892), the majority opinion suggests that this court can nullify the mandatory provisions of the statute in their application to this case because the statute produces an absurd result here — a result that “makes it unreasonable to believe that the legislator intended to include the particular act” at issue. But it is always a tricky business to attribute to “the legislator” an intent contrary to the express terms of a statute passed by majorities of both houses of Congress and signed into law by the President. I find the exercise a particularly troublesome one on the facts now before us, where no reasonable person could say with any assurance that Congress would give a negative answer if we could somehow call on it to state publicly whether it intended to mandate two consecutive prison terms under § 924(c) for drug dealers convicted of using loaded firearms to protect both a cocaine business and a business in synthetic heroin.

A century ago, when Church of the Holy Trinity was decided, the kind of cultural diversity that now characterizes our nation and its public servants still lay in the future. It was thus still possible to suggest, as the Supreme Court did in the Holy Trinity case, that “this is a Christian nation.” Id. 143 U.S. at 471, 12 S.Ct. at 516. And it was possible to suggest that when Congress' passed a statute making it unlawful to assist “any” foreigner in coming to the United States under contract to perform “any kind” of labor or service here, id. at 458, 12 S.Ct. at 511-12, it would be absurd to suppose that Congress intended to make it unlawful “for a church of this country to contract for the services of a Christian minister residing in another nation.” Id. at 471, 12 S.Ct. at 516. A unanimous Supreme Court concluded— correctly, in all probability — that regardless of what the statute actually said, Congress had no subjective intent to prevent men of the cloth from being brought to this country from abroad to labor in the vineyard of the Lord. Congress having neglected to write an appropriate exception into the statute, the Holy Trinity Court did so itself.

The confidence with which the 19th century jurists undertook to identify the subjective intent of Congress and to correct perceived errors and omissions in congressional enactments may have been enhanced not only by the cultural homogeneity of Congress and the Court in those days, but also by the fact that laws passed in that era were more the work of the congressmen themselves and less the work of unknown staff personnel. Perhaps such an environment made it easier than it is today for the Court to divine what the draftsmen were — and were not — thinking about.

Be that as it may, I am not prepared to say, in the case at bar, that § 924(c)(1) cannot sensibly be construed as meaning what it plainly says. Unless one has complete confidence that the discretion vested in prosecutors will always be exercised in a wise and humane manner, it must be conceded that the mandatory features of § 924(e)(1) are likely to work unjust results on occasion. That is true of, any such statute; it is always possible to think of hypothetical situations where the results produced by a mandatory minimum sentencing law would be unfair. Given the facts of the case now before us, however, the 14-year sentence received by defendant Johnson does not strike me as unfair when viewed in light of the sentences being meted out to other armed drug dealers.² '

By 1990, when Congress last amended § 924(c)(1), it is fair to say that the American public and its elected representatives did not have too much sympathy for armed drug dealers. It would not be absurd to suppose that Congress might have wished to come down particularly hard on armed drug dealers who sold multiple types of drugs to multiple clienteles. Neither was it absurd for the district court to conclude that § 924(c)(1) should be applied to Mr. Johnson in accordance with its terms. Accordingly, and because I do not believe that such an application of the statute would violate the Double Jeopardy Clause of the Fifth Amendment under the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), I would affirm the sentence.

1 . Dilaudid is a powerful analgesic that depresses the central nervous system. Cocaine, in contrast, stimulates the central nervous system.

2 . In this connection I would note that under the Sentencing Guidelines that were in effect when Mr. Johnson was sentenced, the hypothetical drug kingpin referred to in the majority opinion — a person arrested with a firearm and ten kilograms of crack cocaine — would probably receive a prison sentence totaling more than 20 years, assuming a criminal history identical to Johnson's.