Giving It Another Shot: A Reexamination of the "Second or Subsequent Conviction" Language of the Firearm Possession Sentencing Statute

I. INTRODUCTION 1005 II. BACKGROUND: THE DEAL WITH DEAL 1009 A. Enacting and Amending 18 U.S.C. § 924(c) ......... 1009 B. Pre-Beai Application of 18 U.S.C. § 924(c) 1011 C. The Supreme Court Steps In 1016 III. ANALYSIS: WHAT'S THE BlG DEAL? 1019 A. The Deal Decision and Its Criticism 1020 B. Theories and Tools of Statutory Interpretation ..... 1026 1. Textualism 1026 2. Intentionalism and Purposivism 1028 3. The Rule of Lenity 1030 C. Purposes of Criminal Punishment 1032 1. Retribution 1033 2. Deterrence 1035 3. Incapacitation 1036 4. Rehabilitation 1037 D. Mandatory Minimums and Judicial Sentencing Discretion 1037 IV. SOLUTION: LET'S MAKE A DEAL 1041 A. Congress 1042 B. Supreme Court 1043 C. Mandatory Minimum Sentence Reforms 1044 V. CONCLUSION 1046 I. INTRODUCTION The effects of the current interpretation of the federal firearm possession sentencing statute are severe, often mandating the imposition of de facto life sentences for first-time offenders. For example, suppose twenty-three-year-old first-time offender was found guilty in federal district court of robbing $500 from two financial institutions in two days and carrying single firearm during the robbery spree.1 Under the Federal Sentencing Guidelines, this first-time offender would be subject to sentence ranging between forty-one and fifty-one months for each robbery.2 Thus, for the substantive offenses, the sentence would total eighty-two to 102 months, or six years and ten months to eight years and six months. But because the offender was found to have been carrying firearm, he could also be convicted of two counts of possessing firearm in furtherance of crime of violence, and thus subject to additional, mandatory sentences.3 Under the current interpretation of 18 U.S.C. § 924(c) (§ 924(c)), the offender would be subject to fiveyear sentence for the first firearm possession count in accordance with ? 924(c)(1)(A) and twenty-five-year sentence for the second firearm possession count in the same proceeding in accordance with ? 924(c)(1)(C). Added together and without any adjustments by the trial judge, the total sentence for this hypothetical crime spree ranges from thirty-six years and ten months to thirty-eight years and six months. Serving his full sentence, the twenty-three-year-old first-time offender would thus be in prison until he is around sixty years old. Furthermore, the Comprehensive Crime Control Act of 1984 abolished parole in the federal prison system, so federal inmates must now serve at least eighty-five percent of their sentences.4 As the above hypothetical scenario reveals, criminal sentencing in federal courts is shaped by both the advisory Federal Sentencing (Sentencing Guidelines or Guidelines), created by the United States Sentencing Commission,5 and by mandatory statutory provisions, passed by Congress.6 In this example, ? 924(c)(1)(A) mandates minimum five-year sentence for the possession of firearm during the commission of violent crime or drug trafficking offense, and § 924(c)(1)(C) mandates minimum twenty-five-year sentence for possession of firearm in the case of a second or subsequent conviction. …