Squaring the Circle: Reconciling Clear Statutory Text with Contradictory Statutory Purpose in United States V. Whitley

Since the Supreme Court struck down the New Jersey Hate Crime Statute in Apprendi v. New Jersey, (1) federal courts have increasingly resisted mandatory sentencing regimes. From Apprendi to Booker (2) to Kimbrough (3) and Gall, (4) the courts have progressively increased their own discretion at the expense of uniform systems established by Congress. In United States v. Whitley, (5) the Second Circuit continued this trend by depending on judges to ensure equity and uniformity in sentencing enhancements for using firearms under 18 U.S.C. [section] 924(c). Although prior cases focused on constitutional claims, the Whitley court tackled challenge of statutory interpretation. Confronting statute containing plain text that starkly departed from Congress's apparent intent, the Second Circuit rejected the intentionalism of other circuits, choosing instead fidelity to the words that Congress chose, however improvidently. Unfortunately, the opinion failed to acknowledge the resulting absurdity that will result from straightforward application of the statute because of its confident reliance on judges to implement congressional intent on discretionary basis. Instead of pretending that Congress did not err in drafting the statute, the Second Circuit should have attacked the legal chimera head-on, remaining loyal to the text as much as possible but alerting Congress that it had created dilemma and should amend the statute. Rather than assuming that Congress and the courts are walled-off from one another, the Whitley court should have encouraged dialogue between the two. In November 2004, Latie Whitley robbed Bronx delicatessen, threatening employees with firearm and emptying the cash register. During the robbery, the gun accidentally fired, wounding Whitley in the face. (6) He was subsequently indicted on three counts. Count One charged Whitley with the robbery in violation of the Hobbs Act, which criminalizes obstruct[ing], delay[ing], or affect[ing] commerce ... by robbery or extortion. (7) Count Two charged Whitley with using, carrying, or possessing firearm during and in relation to any of violence or drug trafficking crime under [section] 924(c)(1)(A). (8) Count Three charged Whitley as an armed career criminal for illegally possessing firearm after three convictions for violent felonies or serious narcotics offenses under [section] 924(e)(1). (9) Whitley was convicted of all counts at trial. (10) The district court sentenced Whitley to imprisonment for 282 months on both the robbery and armed career criminal counts, followed by mandatory consecutive term of 120 months for discharging firearm. (11) The district court believed [section] 924(c)(1)(A) (12) required this sentence. (13) The Second Circuit reversed, holding that the statute did not require the mandatory ten-year consecutive sentence, and remanded for resentencing. (14) Writing for the panel, Judge Jon O. Newman found that the consecutive mandatory sentence violated the opening clause of 18 U.S.C. [section] 924(c). (15) The court of appeals held that because Count Three--the armed career criminal violation--subjected Whitley to fifteen-year mandatory minimum sentence, a greater minimum sentence [was] otherwise provided by this subsection or by any other provision of law, thereby invoking the except clause and exempting Whitley from the requirement of consecutive sentence. (16) Rather than discuss the affirmative merits of its very literal reading of the statute, the court instead addressed the four specific objections raised by the government. First, the government argued that the except clause should suspend an otherwise applicable [section] 924(c)(1)(A) sentence only when greater minimum consecutive sentence applies for using firearm in furtherance of an underlying crime. For example, 18 U.S.C. [section] 924(c)(1)(A)(iii) subjected Whitley to ten-year consecutive sentence for discharging firearm. …