Abbott v. United States , 131 S. Ct. 18 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ABBOTT v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 09–479. Argued October 4, 2010—Decided November 15, 2010*
Petitioners Abbott and Gould, defendants in unrelated prosecutions,
were charged with drug and firearm offenses, including violation of
18 U. S. C. §924(c), which prohibits using, carrying, or possessing a
deadly weapon in connection with “any crime of violence or drug traf
ficking crime,” §924(c)(1). The minimum prison term for a §924(c) of
fense is five years, §924(c)(1)(A)(i), in addition to “any other term of
imprisonment imposed on the [offender],” §924(c)(1)(D)(ii). Abbott
was convicted on the §924(c) count, on two predicate drug-trafficking
counts, and of being a felon in possession of a firearm. He received a
15-year mandatory minimum sentence for his felon-in-possession con
viction and an additional five years for his §924(c) violation. Gould’s
predicate drug-trafficking crime carried a ten-year mandatory mini
mum sentence; he received an additional five years for his §924(c)
violation. On appeal, Abbott and Gould challenged their §924(c) sen
tences, resting their objections on the “except” clause prefacing
§924(c)(1)(A). That clause provides for imposition of a minimum five
year term as a consecutive sentence “[e]xcept to the extent that a
greater minimum sentence is otherwise provided by [§924(c) itself] or
by any other provision of law.” Abbott urged that the “except” clause
was triggered by his 15-year felon-in-possession sentence; Gould said
the same of the ten years commanded by his predicate trafficking
crime. The Third Circuit affirmed Abbott’s sentence, concluding that
the “except” clause “refers only to other minimum sentences that may
be imposed” for §924(c) violations. Gould fared no better before the
Fifth Circuit.
——————
* Together with No. 09–7073, Gould v. United States, on certiorari to
the United States Court of Appeals for the Fifth Circuit.
2 ABBOTT v. UNITED STATES
Syllabus
Held: A defendant is subject to the highest mandatory minimum speci
fied for his conduct in §924(c), unless another provision of law di
rected to conduct proscribed by §924(c) imposes an even greater
mandatory minimum. Pp. 5–18.
(a) Section 924(c) was enacted as part of the Gun Control Act of
1968, but the “except” clause was not added until 1998. Under the
pre-1998 text, it is undisputed, separate counts of conviction did not
preempt §924(c) sentences, and Abbott and Gould would have been
correctly sentenced under §924(c). The question here is whether
Congress’ 1998 reformulation of §924(c) rendered their sentences ex
cessive. The 1998 alteration responded primarily to Bailey v. United
States, 516 U. S. 137, which held that §924(c)(1)’s ban on “use” of a
firearm did not reach “mere possession” of a weapon, id., at 144. In
addition to bringing possession within the statute’s compass, Con
gress increased the severity of §924(c) sentences by changing “once
mandatory sentences into mandatory minimum sentences,” United
States v. O’Brien, 560 U. S. ___, ___, and by elevating the sentences
for brandishing and discharging a firearm and for repeat offenses.
Congress also restructured the provision, “divid[ing] what was once a
lengthy principal sentence into separate subparagraphs,” id., at ___,
and it added the “except” clause at issue. Pp. 5–8.
(b) The leading portion of the “except” clause now prefacing
§924(c)(1)(A) refers to a “greater minimum sentence . . . otherwise
provided by [§924(c) itself]”; the second segment of the clause refers
to a greater minimum provided outside §924(c) “by any other provi
sion of law.” To determine whether a greater minimum sentence is
“otherwise provided . . . by any other provision of law,” the key ques
tion is: otherwise provided for what? Most courts have answered: for
the conduct §924(c) proscribes, i.e., possessing a firearm in connection
with a predicate crime.
Abbott and Gould disagree. Gould would apply the “except” clause
whenever any count of conviction at sentencing requires a greater
minimum sentence. Abbott argues that the minimum sentence “oth
erwise provided” must be one imposed for the criminal transaction
that triggered §924(c) or, in the alternative, for a firearm offense in
volving the same firearm that triggered §924(c). These three inter
pretations share a common, but implausible, premise: that Congress
in 1998 adopted a less aggressive mode of applying §924(c), one that
significantly reduced the severity of the provision’s impact on defen
dants. The pre-1998 version of §924(c) prescribed a discrete sentence
to be imposed on top of the sentence received for the predicate crime
or any separate firearm conviction. It is unlikely that Congress
meant a prefatory clause, added in a bill dubbed “An Act [t]o throttle
criminal use of guns,” to effect a departure so great from §924(c)’s
Cite as: 562 U. S. ____ (2010) 3
Syllabus
original insistence that sentencing judges impose additional punish
ment for §924(c) violations. Abbott’s and Gould’s readings would un
dercut that same bill’s primary objective: to expand §924(c)’s coverage
to reach firearm possession. Their readings would also result in sen
tencing anomalies Congress surely did not intend. Section 924(c), as
they construe it, would often impose no penalty at all for the conduct
that provision makes independently criminal. Stranger still, the
worst offenders would often secure shorter sentences than less grave
offenders, because the highest sentences on other counts of conviction
would be most likely to preempt §924(c) sentences. Abbott and Gould
respond that sentencing judges may take account of any anomalies
and order appropriate adjustments. While a judge exercising discre
tion under 18 U. S. C. §3553(a) would not be required to sentence a
more culpable defendant to a lesser term, this Court doubts that Con
gress had such a cure in mind in 1998, seven years before United
States v. Booker, 543 U. S. 220, held that district courts have discre
tion to depart from the Sentencing Guidelines based on §3553(a).
Abbott and Gould alternatively contend that Congress could have an
ticipated that the then-mandatory Guidelines would resolve dispari
ties by prescribing a firearm enhancement to the predicate sentence.
But Congress expressly rejected an analogous scheme in 1984, when
it amended §924(c) to impose a penalty even when the predicate
crime itself prescribed a firearm enhancement. Between 1984 and
1998, Congress expanded the reach or increased the severity of
§924(c) four times, never suggesting that a Guidelines firearm en
hancement might suffice to accomplish §924(c)’s objective. Nor is
there any indication that Congress was contemplating the Guide
lines’ relationship to §924(c) when it added the “except” clause.
Pp. 8–14.
(c) The Government’s reading—that the “except” clause is triggered
only when another provision commands a longer term for conduct vio
lating §924(c)—makes far more sense. It gives effect to statutory
language commanding that all §924(c) offenders shall receive addi
tional punishment for their violation of that provision, a command re
iterated three times: First, the statute states that the §924(c)(1) pun
ishment “shall” be imposed “in addition to” the penalty for the
predicate offense, §924(c)(1)(A); second, §924(c) demands a discrete
punishment even if the predicate crime itself “provides for an en
hanced punishment if committed by the use of a deadly or dangerous
weapon or device,” ibid.; third, §924(c)(1)(D)(ii) rules out the possibil
ity that a §924(c) sentence might “run concurrently with any other
term of imprisonment.” Interpreting the “except” clause to train on
conduct offending §924(c) also makes sense as a matter of syntax.
The clause is a proviso, most naturally read to refer to the conduct
4 ABBOTT v. UNITED STATES
Syllabus
§924(c) proscribes. See United States v. Morrow, 266 U. S. 531, 534–
535. There is strong contextual support for the view that the “except”
clause was intended simply to clarify §924(c). At the same time Con
gress added the clause, it made the rest of §924(c) more complex, di
viding its existing sentencing prescriptions into four paragraphs, and
adding new penalties for brandishing and discharging a firearm.
Congress thought the restructuring might confuse sentencing judges:
It added the “except” clause’s initial part, which covers greater mini
mums provided “by this subsection,” to instruct judges not to stack
ten years for discharging a gun on top of seven for brandishing the
same weapon. In referencing greater minimums provided by “any
other provision of law,” the second portion of the clause simply fur
nishes the same no-stacking instruction for cases in which §924(c)
and a different statute both punish conduct offending §924(c). Con
gress likely anticipated such cases when framing the “except” clause,
for the bill that reformulated §924(c)’s text also amended 18 U. S. C.
§3559(c) to command a life sentence for certain repeat felons con
victed of “firearms possession (as described in §924(c)).” This inter
pretation does not render the “except” clause’s second part effectively
meaningless. Though §3559(c) is the only existing statute, outside of
§924(c) itself, that the Government places within the “except” clause,
the “any other provision of law” portion installs a safety valve for ad
ditional sentences that Congress may codify outside §924(c) in the fu
ture. Neither United States v. Gonzales, 520 U. S. 1, nor Republic of
Iraq v. Beaty, 556 U. S. ___, warrants a different conclusion. Pp. 14–
18.
No. 09–479, 574 F. 3d 203; No. 09–7073, 329 Fed. Appx. 569, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which all other
Members joined, except KAGAN, J., who took no part in the considera
tion or decision of the cases.
Cite as: 562 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 09–479 and 09–7073
_________________
KEVIN ABBOTT, PETITIONER
09–479 v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
CARLOS RASHAD GOULD, PETITIONER
09–7073 v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[November 15, 2010]
JUSTICE GINSBURG delivered the opinion of the Court.
As one of several measures to punish gun possession by
persons engaged in crime, Congress made it a discrete
offense to use, carry, or possess a deadly weapon in con
nection with “any crime of violence or drug trafficking
crime.” 18 U. S. C. §924(c)(1). The minimum prison term
for the offense described in §924(c) is five years,
§924(c)(1)(A)(i), in addition to “any other term of impris
onment imposed on the [offender],” §924(c)(1)(D)(ii). The
two consolidated cases before us call for interpretation of
§924(c) as that provision was reformulated in 1998.
Kevin Abbott and Carlos Rashad Gould, petitioners
here, defendants below, were charged with multiple drug
2 ABBOTT v. UNITED STATES
Opinion of the Court
and firearm offenses; charges on which they were con
victed included violation of §924(c). Each objected to the
imposition of any additional prison time for his §924(c)
conviction. Their objections rested on the “except” clause
now prefacing §924(c)(1)(A). Under that clause, a mini
mum term of five years shall be imposed as a consecutive
sentence “[e]xcept to the extent that a greater minimum
sentence is otherwise provided by [§924(c) itself] or by any
other provision of law.”
Abbott and Gould read §924(c)’s “except” clause to se
cure them against prison time for their §924(c) convic
tions. They claim exemption from punishment under
§924(c) because they were sentenced to greater mandatory
minimum prison terms for convictions on other counts
charging different offenses. The “except” clause, they
urge, ensures that §924(c) offenders will serve at least five
years in prison. If conviction on a different count yields a
mandatory sentence exceeding five years, they maintain,
the statutory requirement is satisfied and the penalty
specified for the §924(c) violation becomes inoperative.
The courts below, agreeing with the Government’s
construction of the statute, read §924(c)(1) as independ
ently requiring a sentence of at least five years, tacked
onto any other sentence the defendant receives. The
“except” clause refers to “a greater minimum sentence . . .
otherwise provided.” “[O]therwise provided” for what, the
courts below asked; their answer, for conduct offending
§924(c), i.e., possessing a firearm in connection with a
crime of violence or drug-trafficking crime.
A defendant is not spared from a separate, consecutive
sentence for a §924(c) conviction, the lower courts deter
mined, whenever he faces a higher mandatory minimum
for a different count of conviction. Instead, according to
the courts below and the Government here, the “except”
clause applies only when another provision—whether
contained within or placed outside §924(c)—commands a
Cite as: 562 U. S. ____ (2010) 3
Opinion of the Court
longer term for conduct violating §924(c). For example,
the mandatory minimum sentence for a §924(c) offense is
five years, but if the firearm is brandished, the minimum
rises to seven years, and if the firearm is discharged, to
ten years. §924(c)(1)(A)(i), (ii), (iii). A defendant who
possessed, brandished, and discharged a firearm in viola
tion of §924(c) would thus face a mandatory minimum
term of ten years.
We hold, in accord with the courts below, and in line
with the majority of the Courts of Appeals, that a defen
dant is subject to a mandatory, consecutive sentence for a
§924(c) conviction, and is not spared from that sentence by
virtue of receiving a higher mandatory minimum on a
different count of conviction. Under the “except” clause as
we comprehend it, a §924(c) offender is not subject to
stacked sentences for violating §924(c). If he possessed,
brandished, and discharged a gun, the mandatory penalty
would be 10 years, not 22. He is, however, subject to the
highest mandatory minimum specified for his conduct in
§924(c), unless another provision of law directed to con
duct proscribed by §924(c) imposes an even greater man
datory minimum.
I
Abbott and Gould, defendants in unrelated prosecutions,
were each charged with violating §924(c)(1)(A)(i) by pos
sessing a firearm in furtherance of a drug-trafficking
crime. Abbott’s case was tried to a jury in the Eastern
District of Pennsylvania, which convicted him on the
§924(c) count and three others: two predicate trafficking
counts, 21 U. S. C. §§841, 846, and being a felon in posses
sion of a firearm, 18 U. S. C. §922(g). Given Abbott’s
extensive criminal history, his felon-in-possession convic
tion triggered a 15-year mandatory minimum under the
Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e).
The District Court sentenced Abbott to the 15 years man
4 ABBOTT v. UNITED STATES
Opinion of the Court
dated by ACCA, and to an additional five years for the
§924(c) violation, yielding a total prison term of 20 years.1
Gould’s indictment listed seven separate drug and fire
arm charges. In return for Gould’s agreement to plead
guilty, the Government dropped all but two: one §924(c)
offense and one predicate drug-trafficking crime. The
latter, for conspiracy to possess with intent to distribute
cocaine base, carried a ten-year mandatory minimum
under §841(b)(1)(A). Firearm involvement was not an
element of that offense. The United States District Court
for the Northern District of Texas imposed a sentence of
11 years and 5 months for the trafficking offense and an
additional five years for the §924(c) violation, for a total of
16 years and 5 months.
On appeal, Abbott and Gould challenged the five-year
consecutive sentence each received under §924(c). Abbott
urged that ACCA’s 15-year mandatory minimum triggered
§924(c)’s “except” clause, because ACCA qualified as
“[an]other provision of law” that “provided” a “greater
minimum sentence.” Gould said the same of the ten years
commanded by his predicate trafficking crime.
The United States Court of Appeals for the Third Cir
cuit affirmed Abbott’s sentence, concluding that the “ex
cept” clause “refers only to other minimum sentences that
may be imposed for violations of §924(c).” United States v.
Abbott, 574 F. 3d 203, 208 (2009). Gould fared no better
before the Fifth Circuit. United States v. Gould, 329 Fed.
Appx. 569, 570 (2009) (per curiam). That court’s precedent
already confined the exception to conduct offending
§924(c). United States v. London, 568 F. 3d 553, 564
(2009). To resolve the division among the Circuits on the
——————
1 Abbott received ten years on each drug-trafficking count. Those
sentences, imposed concurrently, did not alter his total term of impris
onment and do not figure in this case.
Cite as: 562 U. S. ____ (2010) 5
Opinion of the Court
proper construction of §924(c)’s “except” clause,2 we
granted certiorari in both cases and consolidated them for
argument. 559 U. S. ___ (2010).
II
A
Congress enacted 18 U. S. C. §924(c) as part of the Gun
Control Act of 1968, 82 Stat. 1213. The “except” clause,
which did not appear in §924(c) as originally composed,
was introduced by statutory amendment in 1998. See An
Act [t]o throttle criminal use of guns, 112 Stat. 3469. We
begin by setting out §924(c), first as it read before 1998,
then as amended that year.
The earlier version read in relevant part:
“Whoever, during and in relation to any crime of vio
lence or drug trafficking crime (including a crime of
violence or drug trafficking crime which provides for
an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) . . . , uses or
carries a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years,
——————
2 Compare United States v. Williams, 558 F. 3d 166, 171 (CA2 2009)
(clause covers “minimum sentences for . . . offenses arising from the
same criminal transaction or operative set of facts”); and United States
v. Almany, 598 F. 3d 238, 241 (CA6 2010) (clause applies whenever a
defendant “is subject” to a greater mandatory minimum), with United
States v. Parker, 549 F. 3d 5, 11–12 (CA1 2008) (clause does not cover
sentences for predicate drug offenses but might cover sentences for
ACCA firearm offenses); United States v. Villa, 589 F. 3d 1334, 1343
(CA10 2009) (clause covers only sentences for conduct offending
§924(c)); United States v. Segarra, 582 F. 3d 1269, 1272–1273 (CA11
2009) (same); 574 F. 3d, at 208 (case below) (same); United States v.
Easter, 553 F. 3d 519, 526 (CA7 2009) (per curiam) (same); United
States v. Studifin, 240 F. 3d 415, 423 (CA4 2001) (same); United States
v. Alaniz, 235 F. 3d 386 (CA8 2000) (same); and 329 Fed. Appx., at 570
(case below) (same).
6 ABBOTT v. UNITED STATES
Opinion of the Court
and if the firearm is a short-barreled rifle, short
barreled shotgun, or semiautomatic assault weapon,
to imprisonment for ten years, and if the firearm is a
machinegun, or a destructive device, or is equipped
with a firearm silencer or firearm muffler, to impris
onment for thirty years. In the case of his second or
subsequent conviction under this subsection, such
person shall be sentenced to imprisonment for twenty
years, and if the firearm is a machinegun, or a de
structive device, or is equipped with a firearm silencer
or firearm muffler, to life imprisonment without re
lease. Notwithstanding any other provision of law,
. . . the term of imprisonment imposed under this sub
section [shall not] run concurrently with any other
term of imprisonment including that imposed for
the crime of violence or drug trafficking crime in
which the firearm was used or carried.” §924(c)(1)
(1994 ed.).
If this pre-1998 text governed, all agree, separate counts of
conviction would have no preemptive force, and Abbott
and Gould would have been correctly sentenced under
§924(c). The question we confront is whether Congress’
1998 reformulation of §924(c) rendered the sentences
imposed on Abbott and Gould excessive.
The 1998 alteration responded primarily to our decision
in Bailey v. United States, 516 U. S. 137 (1995). In pro
scribing “use” of a firearm, Bailey held, §924(c)(1) did not
reach “mere possession” of the weapon. Id., at 144. Con
gress legislated a different result; in the 1998 revision,
“colloquially known as the Bailey Fix Act,” the Legislature
brought possession within the statute’s compass. United
States v. O’Brien, 560 U. S. ___, ___ (2010) (slip op., at 14)
(internal quotation marks omitted).
In addition to the change prompted by Bailey, Congress
increased the severity of §924(c) sentences in two other
Cite as: 562 U. S. ____ (2010) 7
Opinion of the Court
respects: The 1998 revision “changed what were once
mandatory sentences into mandatory minimum sen
tences,” O’Brien, 560 U. S., at ___ (slip op., at 13); and it
elevated the sentences for brandishing and discharging a
firearm and for repeat offenses. Congress also restruc
tured the provision, “divid[ing] what was once a lengthy
principal sentence into separate subparagraphs.” Id., at
___ (slip op., at 7). And it added the prefatory “except”
clause at issue in the cases now before us. As amended,
§924(c)(1)(A) prescribes:
“Except to the extent that a greater minimum sen
tence is otherwise provided by this subsection or by
any other provision of law, any person who, during
and in relation to any crime of violence or drug traf
ficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced pun
ishment if committed by the use of a deadly or dan
gerous weapon or device) for which the person may be
prosecuted in a court of the United States, 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—
“(i) be sentenced to a term of imprisonment of not
less than 5 years;
“(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
“(iii) if the firearm is discharged, be sentenced to
a term of imprisonment of not less than 10 years.”
The 1998 reformulation, furthermore, removed to sepa
rate paragraphs the provisions commanding higher penal
ties for especially destructive weapons and “second or
subsequent” offenses. See §924(c)(1)(B), (C).3 While leav
——————
3 These provisions read:
8 ABBOTT v. UNITED STATES
Opinion of the Court
ing the penalties for highly destructive weapons un
changed, the revision raised the base punishment for
“second or subsequent” offenses from 20 years to 25. Ibid.
The reformulation also transferred the bar on concurrent
sentences to §924(c)(1)(D)(ii):
“[N]o term of imprisonment imposed on a person
under this subsection shall 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.”
B
The leading portion of the “except” clause, which now
prefaces §924(c)(1)(A), refers to a “greater minimum sen
tence . . . otherwise provided by this subsection,” i.e., by
§924(c) itself; the second segment of the clause refers to a
greater minimum provided outside §924(c) “by any other
provision of law.” Beyond debate, the latter instruction
does not relieve a §924(c) offender of additional punish
ment “simply because a higher mandatory minimum
sentence exists in the United States Code.” Brief for
——————
“(B) If the firearm possessed by a person convicted of a violation of
this subsection—
“(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic
assault weapon, the person shall be sentenced to a term of imprison
ment of not less than 10 years; or
“(ii) is a machinegun or a destructive device, or is equipped with a
firearm silencer or firearm muffler, the person shall be sentenced to a
term of imprisonment of not less than 30 years.
“(C) In the case of a second or subsequent conviction under this
subsection, the person shall—
“(i) be sentenced to a term of imprisonment of not less than 25 years;
and
“(ii) if the firearm involved is a machinegun or a destructive device,
or is equipped with a firearm silencer or firearm muffler, be sentenced
to imprisonment for life.”
Cite as: 562 U. S. ____ (2010) 9
Opinion of the Court
Petitioner in No. 09–479, p. 19 (hereinafter Abbott Brief).
Were it otherwise, the statute’s ascending series of mini
mums, set out in §924(c)(1)(A)–(C), would have no work to
do; the only possible §924(c) sentence would be the Code’s
highest—life. The “except” clause, it is therefore undis
puted, “has to have some understood referent to be intelli
gible.” United States v. Parker, 549 F. 3d 5, 11 (CA1
2008). What should that referent be? As we comprehend
the clause, to determine whether a greater minimum
sentence is “otherwise provided . . . by any other provision
of law,” the key question one must ask is: otherwise pro
vided for what? As earlier noted, see supra, at 3, most
courts, in line with the courts below and the Government,
have answered: for the conduct §924(c) proscribes, i.e.,
possessing a firearm in connection with a predicate crime.
Abbott and Gould disagree and offer diverse readings.
Gould principally would apply the “except” clause to pre
clude a §924(c) sentence whenever “any of a defendant’s
counts of convictio[n] at sentencing” require a greater
minimum sentence. Brief for Petitioner in No. 09–7073,
p. 14 (hereinafter Gould Brief).
In lieu of Gould’s position that any greater minimum
sentence on a different count of conviction will do, Abbott
advances a somewhat narrower “transactional approach.”
Any sentence imposed on the defendant fits the bill, he
urges, so long as the sentence was imposed “because of the
criminal transaction that triggered §924(c) in the first
place.” Abbott Brief 10. Accord United States v. Williams,
558 F. 3d 166, 171 (CA2 2009).
Abbott also tenders an alternative construction: The
minimum sentence “otherwise provided” must be for a
firearm offense—for example, Abbott’s felon-in-possession
charge—involving the same firearm that triggered
§924(c).4 Conceding that this reading is “not commanded
——————
4 Because Gould’s only firearm-related offense is his §924(c) offense,
10 ABBOTT v. UNITED STATES
Opinion of the Court
by the [statute’s] plain language,” Tr. of Oral Arg. 24,
Abbott asserts that it advances §924(c)’s goal—to discour
age bearing arms in furtherance of crime—while avoiding
the imposition of “two consecutive mandatory minimum
sentences for the single use of a single firearm,” Abbott
Brief 47 (emphasis omitted).
The three interpretations just described share a com
mon premise. In adding the “except” clause in 1998, all
three posit, Congress adopted a less aggressive mode of
applying §924(c), one that significantly reduced the sever
ity of the provision’s impact on defendants. Like the
courts below, we regard this premise as implausible. As
earlier observed, see supra, at 5–6, the pre-1998 version of
§924(c) prescribed a discrete sentence—punishment to be
imposed regardless of the sentence received for the predi
cate crime or any separate firearm conviction. Abbott and
Gould think the “except” clause installed, instead, a mod
est scheme designed simply to ensure that all §924(c)
offenders “serve at least 5 years in prison.” Gould Brief 5;
see Abbott Brief 10. We doubt that Congress meant a
prefatory clause, added in a bill dubbed “An Act [t]o throt
tle criminal use of guns,” to effect a departure so great
from §924(c)’s longstanding thrust, i.e., its insistence that
sentencing judges impose additional punishment for
§924(c) violations.
Were we to accept any of the readings proposed by
Abbott or Gould, it bears emphasis, we would undercut
that same bill’s primary objective: to expand §924(c)’s
coverage to reach firearm possession. In 1999, more than
half of those who violated §924(c) in connection with a
drug-trafficking offense received a mandatory minimum of
ten years or more for that trafficking offense. Letter from
Glenn R. Schmitt, United States Sentencing Commission,
to Supreme Court Library (Nov. 10, 2010) (available in
——————
Gould’s sentence would stand under Abbott’s alternative construction.
Cite as: 562 U. S. ____ (2010) 11
Opinion of the Court
Clerk of Court’s case file). Congress, however, imposed
only a five-year minimum for firearm possession “in fur
therance of” a drug offense. As construed by Abbott and
Gould, the amendment to include firearm possession as a
§924(c) offense would spare the most serious drug offend
ers from any discrete punishment for the very firearm
activity the amendment targeted. “We are disinclined to
say that what Congress imposed with one hand . . . it
withdrew with the other . . . .” Logan v. United States, 552
U. S. 23, 35 (2007).
Abbott’s and Gould’s proposed readings, moreover,
would result in sentencing anomalies Congress surely did
not intend. We note first that §924(c), as they construe it,
would often impose no penalty at all for the conduct that
provision makes independently criminal. Tr. of Oral Arg.
52. For example, an individual who sold enough drugs to
receive a ten-year minimum sentence under §841(b)(1)(A)
could, so far as §924(c) is concerned, possess or even bran
dish a gun without incurring any additional punishment.
Stranger still, under the Abbott and Gould readings, the
worst offenders would often secure the shortest sentences.
Consider two defendants convicted of trafficking in co
caine. The first possesses 500 grams and is subject to a
mandatory minimum of five years, §841(b)(1)(B); the
second possesses five kilograms and is subject to a manda
tory minimum of ten years, §841(b)(1)(A). Both brandish
firearms, calling for a sentence of seven years under
§924(c)(1)(A)(ii). The first defendant, under all readings,
will spend at least 12 years in prison. The second defen
dant’s ten-year drug minimum, according to Abbott and
Gould, triggers the “except” clause and wipes out that
defendant’s §924(c) penalty; though the more culpable of
the two, the second defendant’s minimum term would be
just ten years. Brief for United States 40. Like the Third
Circuit below, “[w]e are confident that Congress did not
intend such a bizarre result.” 574 F. 3d, at 209.
12 ABBOTT v. UNITED STATES
Opinion of the Court
Abbott’s alternative construction, which homes in on
other firearm offenses, gives rise to similar oddities. On
this reading, Abbott’s 15-year ACCA sentence for being a
felon-in-possession would preempt his five-year §924(c)
sentence, and his minimum term would be 15 years,
rather than 20.5 But if ACCA were not at issue, Abbott’s
minimum term would be the same 15 years: his five-
year §924(c) sentence on top of his ten-year drug sen
tence. Qualification as a career criminal would carry no
consequence.
Nor does Abbott’s second construction necessarily pro
mote more equitable outcomes. Suppose, for example, that
a career criminal sold drugs together with a first-time
offender, and both brandished firearms in the process.
The first-time offender, lacking a felon-in-possession
conviction, would serve a seven-year §924(c) sentence on
top of a ten-year drug sentence, for a total of 17 years. But
the career criminal’s ACCA sentence would preempt the
§924(c) sentence; he would serve only 15 years.
Abbott and Gould respond that sentencing judges may
take account of such anomalies and order appropriate
adjustments. We observe first that no correction or avoid
ance appears possible for the anomaly that, while §924(c)
“defines a standalone crime,” a §924(c) sentence would be
wiped out by a wholly separate and independent convic
tion. United States v. Easter, 553 F. 3d 519, 526 (CA7
2009) (per curiam) (“A determination of guilt that yields
no sentence is not a judgment of conviction at all.”). We
do, however, agree that a judge exercising discretion un
der 18 U. S. C. §3553(a) “would [not] be required to sen
tence” a more culpable defendant to a lesser term; the
judge could increase that defendant’s sentence for a predi
cate crime to make up for §924(c)’s failure to effect any
enlargement of the time served. United States v. Whitley,
——————
5 ACCA sentences may run concurrently with drug sentences.
Cite as: 562 U. S. ____ (2010) 13
Opinion of the Court
529 F. 3d 150, 155 (CA2 2008). But we doubt Congress
had such a cure in mind in 1998, seven years before we
held, in United States v. Booker, 543 U. S. 220 (2005), that
district courts have discretion to depart from the Sentenc
ing Guidelines on the basis of §3553(a).
Abbott and Gould alternatively contend that Congress
could have anticipated that the then-mandatory Guide
lines would resolve disparities. See Abbott Brief 32–35;
Gould Brief 30–32. On this view, the “except” clause
ensures that a §924(c) offender incurs a minimum sen
tence of considerable length; the Guidelines would then
control, elevating that sentence based on firearm posses
sion or use. See United States Sentencing Commission,
Guidelines Manual §§2D1.1(b)(1), 2K2.1(b)(5) (Nov. 1998)
(increasing offense level for defendants who use or possess
firearms in course of violent crime or drug trafficking);
§§2D1.1(b)(1), 2K2.1(b)(6) (Nov. 2009) (same).
We do not gainsay that Abbott and Gould project a
rational, less harsh, mode of sentencing. But we do not
think it was the mode Congress ordered. Congress ex
pressly rejected an analogous scheme in 1984, when it
amended §924(c) in the same law that created the Sen
tencing Commission and the Guidelines. Pub. L. 98–473,
98 Stat. 1987, 2138. Four years earlier, in Busic v. United
States, 446 U. S. 398, 404 (1980), we had read §924(c) to
impose no penalty when the predicate crime itself pre
scribed a firearm enhancement; similarly, Abbott and
Gould now read §924(c) to impose no penalty when the
Guidelines prescribe a firearm enhancement to the predi
cate sentence. The 1984 legislation “repudiated” Busic,
clarifying that §924(c) applied even when the predicate
crime already “provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or
device.” United States v. Gonzales, 520 U. S. 1, 10 (1997)
(internal quotation marks omitted).
Between 1984 and 1998, Congress expanded the reach
14 ABBOTT v. UNITED STATES
Opinion of the Court
or increased the severity of §924(c) on four occasions,
never suggesting that a Guidelines firearm enhancement
might suffice to accomplish §924(c)’s objective.6 Nor is
there the slightest indication that Congress was contem
plating the Guidelines’ relationship to §924(c) when it
added the “except” clause in the 1998 amendments.7
The “except” clause, we note, would have been a most
haphazard way to achieve a Guidelines-driven rollback of
§924(c). If Congress wanted to ensure that §924(c) offend
ers “receive at least five years in prison,” and to rely on
the Guidelines for the rest, Abbott Brief 10, there was an
obvious solution: Congress could have excised all prescrip
tions ordering that §924(c) sentences shall run consecu
tively to other sentences. Without such a requirement, all
defendants would benefit from a minimum-plus-
Guidelines regime—not just the most culpable offenders.
Congress did not adopt that obvious solution, we think,
because it did not want the Guidelines to supplant §924(c).
C
The Government’s reading of the “except” clause, we are
convinced, makes far more sense than the interpretations
urged by Abbott and Gould. In imposing a sentence for a
——————
6 Firearms Owners’ Protection Act, 1986, Pub. L. 99–308, §104(a), 100
Stat. 456–457 (increasing sentences for certain firearms and adding
drug trafficking as a predicate felony); Anti-Drug Abuse Act of 1988,
Pub. L. 100–690, §6460, 102 Stat. 4373–4374 (increasing sentences);
Crime Control Act of 1990, Pub. L. 101–647, §1101, 104 Stat. 4829(same); Public Safety and Recreational Firearms Use Protection Act,
1994, Pub. L. 103–322, §110102(c), 108 Stat. 1998 (same).
7 For those who take legislative history into account, it is as silent as
is the statute’s text. The sole reference to the “except” clause appears
in the statement of one witness at a Senate hearing. See Hearing on S.
191 before the Senate Committee on the Judiciary, 105th Cong., 1st
Sess., 38 (1997) (statement of Thomas G. Hungar) (“[B]y adding an
introductory clause authorizing imposition of stiffer minimum sen
tences if required under other provisions of law, S. 191 eliminates any
potential inconsistency with other statutes.”).
Cite as: 562 U. S. ____ (2010) 15
Opinion of the Court
§924(c) violation “[e]xcept to the extent that a greater
minimum sentence is otherwise provided . . . by any other
provision of law,” Congress meant:
“[I]f another provision of the United States Code
mandates a punishment for using, carrying, or pos
sessing a firearm in connection with a drug trafficking
crime or crime of violence, and that minimum sen
tence is longer than the punishment applicable under
§924(c), then the longer sentence applies.” Brief for
United States 17.
This reading gives effect to the statutory language
commanding that all §924(c) offenders shall receive addi
tional punishment for their violation of that provision, a
command reiterated three times. First, the statute states
that the punishment specified in §924(c)(1) “shall” be
imposed “in addition to” the penalty for the predicate
offense. §924(c)(1)(A). Second, after Busic, §924(c) de
mands a discrete punishment even if the predicate crime
itself “provides for an enhanced punishment if committed
by the use of a deadly or dangerous weapon or device.”
Ibid. Third, §924(c)(1)(D)(ii) rules out the possibility that
a §924(c) sentence might “run concurrently with any other
term of imprisonment.” We doubt that Congress, having
retained this thrice-repeated instruction, would simulta
neously provide an exception severely limiting application
of the instruction. Cf. Greenlaw v. United States,
554 U. S. 237, 251 (2008) (“We resist attributing to Con
gress an intention to render a statute so internally
inconsistent.”).
Interpreting the “except” clause to train on conduct
offending §924(c) also makes sense as a matter of syntax.
The “except” clause is not a standalone enactment, or even
a standalone sentence. Rather, it precedes and qualifies
§924(c)(1)(A)’s principal clause, which punishes the pos
session of a firearm in connection with specified predicate
16 ABBOTT v. UNITED STATES
Opinion of the Court
crimes. The “grammatical and logical scope” of a proviso,
we have held, “is confined to the subject-matter of the
principal clause” to which it is attached. United States v.
Morrow, 266 U. S. 531, 534–535 (1925). As a proviso
attached to §924(c), the “except” clause is most naturally
read to refer to the conduct §924(c) proscribes. Accord
United States v. Villa, 589 F. 3d 1334, 1343 (CA10 2009).
There is strong contextual support for our view that
Congress intended the “except” clause to serve simply as a
clarification of §924(c), not as a major restraint on the
statute’s operation. At the same time Congress added the
“except” clause, it made the rest of §924(c) more complex.
The 1998 revision divided the statute’s existing sentencing
prescriptions into four paragraphs in lieu of one, and
added new penalties for brandishing and discharging a
firearm. §924(c)(1)(A)–(D). We know that Congress
thought the restructuring might confuse sentencing
judges: Warding off confusion, all agree, was the Legisla
ture’s sole objective in adding the initial part of the “ex
cept” clause, which covers greater minimums provided “by
this subsection.” That portion of the clause instructs
judges to pick the single highest sentence stipulated for a
§924(c) violation within §924(c) itself, and not to stack ten
years for discharging a gun on top of seven for brandishing
the same weapon, whenever a defendant does both.
In referencing greater minimums provided by “any other
provision of law,” we think, the second portion of the
“except” clause simply furnishes the same no-stacking
instruction for cases in which §924(c) and a different
statute both punish conduct offending §924(c). Congress
likely anticipated such cases when the “except” clause was
framed in 1998, for the bill that reformulated the text of
§924(c) did just one thing more: It amended 18 U. S. C.
§3559(c) to command a life sentence when certain repeat
felons are convicted of “firearms possession (as described
in §924(c)).” Pub. L. 105–386, §1(b), 112 Stat. 3470.
Cite as: 562 U. S. ____ (2010) 17
Opinion of the Court
Our interpretation, Abbott and Gould protest, renders
the second part of the “except” clause effectively meaning
less. Section 3559(c) is the only existing statute, outside of
§924(c) itself, the Government places within the “except”
clause. Tr. of Oral Arg. 32–35, 42–44.8 But §3559(c)
already imposes a life sentence. A defendant would find
little comfort in knowing that no §924(c) sentence, say five
years or seven, will be tacked on to his §3559(c) life term.
As Courts of Appeals have observed, however, the “any
other provision of law” portion of the “except” clause in
stalls a “safety valve.” United States v. Studifin, 240 F. 3d
415, 423 (CA4 2001). It “allow[s] for additional §924(c)
sentences,” akin to the sentence prescribed in §3559(c),
that Congress may codify outside §924(c) “in the future.”
See Abbott, 574 F. 3d, at 208. We do not regard this al
lowance as “implausible.” See Abbott Brief 22; Gould Brief
21. As the Government points out, “there is nothing un
usual about Congress prescribing mandatory minimum
penalties for substantive offenses codified in other provi
sions.” Brief for United States 22. See, e.g., §3559(c)
(prescribing penalties for violations of, inter alia, 49
U. S. C. §46502 and 18 U. S. C. §§1111, 2111, 2113, and
2118); §3559(d) (prescribing penalties for violations of,
inter alia, 18 U. S. C. §§2422, 2423, and 2251); 18 U. S. C.
§924(e) (prescribing penalty for violation of §922(g)). See
also 18 U. S. C. §924(j)(1) (prescribing a nonmandatory
penalty of death for individuals who commit murder with
a firearm in the course of a §924(c) offense).
Our decisions in Gonzales and Republic of Iraq v. Beaty,
556 U. S. ___ (2009), do not warrant a different conclusion.
We observed in Gonzales that “the word ‘any’ [ordinarily]
——————
8 We agree with the Government that a qualifying statute need not
“explicit[ly] reference” §924(c), Tr. of Oral Arg. 27; a statute will fit the
bill if it provides a greater mandatory minimum for an offense that
embodies all the elements of a §924(c) offense.
18 ABBOTT v. UNITED STATES
Opinion of the Court
has an expansive meaning.” 520 U. S., at 5 (holding that
“any other term of imprisonment” includes terms imposed
by state courts). See also Beaty, 556 U. S., at ___ (slip op.,
at 7) (the word “any” in “any other provision of law” was
“no warrant to limit the class of provisions of law”). But
our decision on the petitions of Abbott and Gould does not
turn on artificial confinement of the phrase “any other
provision of law.” We rely, instead, on the different direc
tion Congress prescribed for the “except” clause: It applies
only when “a greater minimum sentence is otherwise
provided.” “In the contest between reading” that phrase
“to refer to penalties for the [§924(c)] offense in question or
to penalties for any [other] offense [a defendant commits],
we believe the former is the most natural.” Easter, 553
F. 3d, at 526.9
* * *
For the reasons stated, the judgments of the Court of
Appeals for the Third Circuit and the Court of Appeals for
the Fifth Circuit are
Affirmed.
JUSTICE KAGAN took no part in the consideration or
decision of these cases.
——————
9 Abbott and Gould invoke the rule of lenity as a final reason to con
strue the “except” clause to bar their punishments under §924(c); if
their proposed limitations are textually possible, they maintain, we
may not choose the Government’s. “[T]he touchstone of the rule of
lenity is statutory ambiguity.” Bifulco v. United States, 447 U. S. 381,
387 (1980) (internal quotation marks omitted). “[A]fter consulting
traditional canons of statutory construction,” United States v. Shabani,
513 U. S. 10, 17 (1994), we are persuaded that none remains here: The
“except” clause covers only conduct offending §924(c). Although the
clause might have been more meticulously drafted, the “grammatical
possibility” of a defendant’s interpretation does not command a resort
to the rule of lenity if the interpretation proffered by the defendant
reflects “an implausible reading of the congressional purpose.” Caron v.
United States, 524 U. S. 308, 316 (1998).