June 23, 2008
Fascinating Split Developing on 18 USC 924's "exception" Clause
A criminal statute when read literally results in a lower penalty to the criminal defendant, but the district court adopts a purposive interpretation. The Second Circuit unanimously reverses, deepening a circuit split. It's in U.S. v. Whitley, 2008 WL 2405707 (2d Cir. June 16, 2008), available here. The opinion begins:
This criminal appeal presents the unusual situation in which the literal meaning of a sentencing statute has been disregarded to the detriment of a defendant. Latie Whitley appeals from the December 30, 2005, judgment of the United States District Court for the Southern District of New York (Richard Conway Casey, District Judge), following a four-day trial. He was sentenced principally to concurrent terms of 282 months for a Hobbs Act robbery and a career criminal firearms possession violation, plus a consecutive mandatory minimum term of 120 months for discharging a firearm. His appeal challenges the imposition of the consecutive ten-year minimum sentence for discharging a firearm, see 18 U.S.C. § 924(c)(1)(A)(iii), both because the “except” clause of subsection 924(c)(1)(A) exempts him from the minimum sentence, and because he lacked the mens rea that he asserts is required for a valid firearms discharge conviction.
We agree that the consecutive minimum ten-year sentence is inapplicable to Whitley because he was subject to a higher fifteen year minimum sentence as an armed career criminal. As a result, we need not consider whether the ten-year consecutive sentence provision requires mens rea. We therefore remand for resentencing.