During the oral arguments in Lora v. United States, a case involving a Bronx drug dealer who received consecutive sentences totaling 30 years for the gun killing of a rival pusher, the justices' pointed questioning to Erica L. Ross, an attorney for the government, seemed to signal that a majority of them might favor Lora's argument that the plain language of the statute gives judges discretion to impose concurrent sentences.
The case centers on the interplay between two subsections of federal criminal law dealing with firearm offenses that are among the most frequently charged.
Section 924(c) of Title 18 of the U.S. Code prescribes a five-year mandatory minimum sentence for a person who possesses a firearm while carrying out a violent or drug-related crime. The minimum sentence is boosted to seven years when the gun is brandished and to 10 when it's fired. The statute also specifies that "no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person."
Section 924(j), meanwhile, extends the death penalty and life imprisonment to a person who, while violating Subsection (c), causes the death of another person.
Lawrence D. Rosenberg of Jones Day, who argued on behalf of Lora, said Subsection (j), which was added to the statute nearly 30 years after Subsection (c), creates a new and separate crime to which the consecutive sentencing mandate does not apply.
The government, however, opposes that view, saying the latter subsection is incorporated into the older one and simply adds the potential for the death penalty when the crime results in a homicide.
Justices Clarence Thomas, Ketanji Brown Jackson, Brett Kavanaugh and Elena Kagan all seemed to suggest the government's reading of the law's text is counterintuitive.
"I think that's the problem for your argument," Justice Jackson said. "It says 'in the course of a violation of Subsection (c)'."
Ross conceded the provision "could have been clearer," but pointed to the overall context of the law and similarities to other provisions as reasons the government's view is sound.
"We think the best reading of this statute is that (c) provides the basic elements of the offense. It provides the basic sentences. And then (j) sort of comes in to say, 'and when there's a death, we're going to add these other penalties'," she said.
But Justice Jackson was not satisfied.
"So what do you do with the fact that (j) was actually enacted at a different time than (c)?" she asked Ross. "It just sort of seems to me that the enactment history also undermines the government's view."
On Aug. 11, 2002, Lora and three other people with whom he trafficked cocaine and crack in the Bronx took part in a plan to murder Andrew Balcarran, a rival drug dealer. Lora served as a scout during an ambush in front of Balcarran's home, during which he was shot dead.
Lora, who did not fire a gun, was later charged with aiding and abetting the use of a firearm in relation to a drug trafficking crime that caused death in violation of Section 924(j), and of taking part in a conspiracy to sell drugs.
A jury found Lora guilty, and the U.S. District Court for the Southern District of New York sentenced him to a total of 30 years in prison — 25 years on the drug conspiracy count to run consecutively with five years for the firearm offense.
Lora appealed the sentence to the U.S. Court of Appeals for the Second Circuit. The court upheld the sentence, citing its own precedent in U.S. v. Young
in 2014, and in U.S. v. Ventura and U.S. v. Nina in 2018, where it held that people convicted under Section 924(j) are also to be considered convicted under Subsection (c).In his petition for a writ of certiorari filed on July 15, Lora argued that the Second Circuit's interpretation is wrong and runs afoul of the precedent set by the Supreme Court in Alleyne v. U.S.
in 2013, a case in which the justices ruled that a defendant cannot be found guilty of a claim not included in the indictment nor submitted to the jury for proof beyond a reasonable doubt.He called on the high court to address a widening rift among federal courts, with the Second Circuit siding with the Third, Fourth, Eighth, and Ninth circuits, which have interpreted the law similarly.
The Eleventh Circuit, on the other hand, has said in its 2011 decision in U.S. v. Julian
that the statute's plain text means that a conviction under Section 924(j) does not count as a conviction under Section 924(c). The Tenth Circuit embraced a similar interpretation in its 2018 opinion in U.S. v. Melgar-Cabrera , after previously endorsing the circuit majority's view.Lora told the justices the circuit majority's interpretation ushers in constitutional violations that the high court addressed in Alleyne. Under that precedent, facts that could increase a defendant's punishment must be evaluated by a jury.
So if Section 924(j) allows the government to seek the death penalty but does not require factual findings beyond those necessary for Section 924(c), for which the maximum penalty is life in prison, defendants would be denied Sixth Amendment protection. They would also be denied the Fifth Amendment right to have each element of offense laid out in their indictment, the petition says.
Arguing that the stakes for criminal defendants are "extremely high" even when the death penalty is not pursued, Lora cited a 2012 study, published in the California Law Review, of cases from 2003 to 2009 showing that 181 of 367 cases involving a Section 924(j) charge resulted in a prison sentence of at least 30 years.
In its Oct. 28 brief opposing the petition, the government said the dispute over the consecutive sentencing mandate "has limited practical importance" and called the circuit split over the issue "narrow."
The government argued Section 924(j) sets out an aggravated version of the offense established under Section 924(c), essentially broadening the sentencing range for drug-related or violent crimes that involve a gun and result in death.
It also said Lora's reading of the statute would create an "anomaly" in which people convicted under Section 924(c) would be subject to consecutive sentences, while people convicted of homicide under Section 924(j) would not.
"Because a Section 924(c) violation is a necessary ingredient in every Section 924(j) offense, any defendant guilty of the latter is also guilty of the former," the government brief says.
During Tuesday's oral arguments, Rosenberg pointed out to the justices that Lora's view does not preclude judges from setting concurrent sentences where the circumstances warrant it.
"All we're saying is it preserves discretion. In an appropriate circumstance, a trial judge absolutely can still sentence consecutively," Rosenberg said.
Lora's case attracted the interest of the American Bar Association and the National Association of Criminal Defense Lawyers, both of which submitted "friends of the court" briefs in his support.
In its brief, the ABA said the consecutive sentences mandate effectively creates a mandatory minimum sentence regime, a practice the attorney group generally disfavors because it ties judges' hands in considering the individual circumstances of defendants while imposing their punishment.
"In a world where the charge mandates the sentence, prosecutors' charging and plea decisions drive sentencing," the brief says. "Mandatory minimums imposed by the legislature not only limit the trial court's discretion, but also shift considerable discretion to the prosecutor."
The NACDL brief says the Second Circuit interpretation erodes the ability of district judges to impose concurrent sentences when they are warranted, increasing a defendant's total sentence by years or decades.
"That interpretation is not only unsupported by the plain language of the statute but is inconsistent with district courts' longstanding discretion to impose concurrent sentences," the brief says.
In a statement Tuesday afternoon, Rosenberg said he hoped the Supreme Court will rule in Lora's favor and safeguard judicial discretion.
"Discretion in criminal sentencing is the time-honored default in our system, and if Congress wishes to remove that discretion it must do so clearly," Rosenberg said. "A defendant's sentence should fit the crime and fit the individual."
Efrain Lora is represented by Lawrence D. Rosenberg of Jones Day.
The United States government is represented by Erica L. Ross of the Office of the U.S. Solicitor General Elizabeth B. Prelogar.
The case is Efrain Lora v. United States, case number 22-49, in the Supreme Court of the United States.
--Editing by Peter Rozovsky.