Maybe Once, Maybe Twice: Using the Rule of Lenity to Determine Whether 18 USC § 924(c) Defines One Crime or Two

Suppose that a drug dealer in Los Angeles goes to meet a buyer. The dealer possesses a handgun and intends to use the gun if the buyer does not pay him. He hands drugs to the buyer. The buyer refuses to pay. The dealer tells the buyer that he has a gun and that he will use it if the buyer does not pay. The buyer pays the dealer. They go their separate ways. The Los Angeles drug dealer faces a mandatory minimum penalty of five years for the role that the gun played in this drug transaction. Now suppose the exact same transaction occurs in Minneapolis. The Minneapolis drug dealer could face a sentence six times as severe: one mandatory minimum penalty of five years for the first violation, possessing the gun during a drug trafficking crime, and another mandatory minimum penalty of twenty-five years for the second violation, using the gun in furtherance of that drug trafficking crime. This disparity stems from ambiguous language in 18 USC § 924(c). Section 924(c) proscribes “during and in relation to any crime of violence or drug trafficking . . . us[ing] or carr[ying] a firearm, or . . . in furtherance of any such crime, possess[ing] a firearm.” Some courts—including the Seventh and Ninth Circuits—interpret the provision as defining a single crime that could be committed by either using a firearm during a crime or possessing a firearm in furtherance of a crime. Other courts—including the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits—read the provision as defining two separate crimes, one for use of a firearm during a crime and another for possession of a firearm in furtherance of a crime.

There is a mandatory minimum penalty of five years for violating § 924(c). A subsequent conviction incurs a mandatory minimum sentence of twenty-five years. If that subsequent conviction involves a machine gun or a firearm equipped with a silencer, the mandatory sentence is life imprisonment. Heightened sentences for a second or subsequent § 924(c) conviction are typically imposed on defendants convicted of violating § 924(c) who were also convicted of violating § 924(c) in a previous case. If § 924(c) defines two distinct crimes, however, separate convictions for both possessing and using the same firearm in connection with the same crime could trigger the twenty-five-year mandatory minimum for a second conviction. That is precisely the situation that the Minneapolis drug dealer faces. According to the Eighth Circuit’s understanding of § 924(c), the Minneapolis drug dealer committed two crimes by possessing a gun in furtherance of a drug trafficking crime and, in mentioning the gun, also by using it. As a consequence, he can be convicted of violating § 924(c) twice and face the heightened penalty established for multiple § 924(c) violations. By comparison, because the Ninth Circuit interprets § 924(c) as defining a single crime, the Los Angeles drug dealer faces five years for conduct that would lead to a thirty-year sentence in Minneapolis. Although interpreting § 924(c) as including two crimes frequently leads to longer sentences, defendants have argued that § 924(c) defines two crimes because this argument provides a basis to challenge the indictment. That is, defendants whose crimes were charged in a single count have argued that § 924(c) actually defines two distinct crimes and that their indictments are therefore unconstitutional. On the other hand, defendants charged with two separate crimes have argued that § 924(c) actually defines a single crime and that their indictments therefore unconstitutionally charge the same crime twice. Because courts have reached different conclusions about how many crimes § 924(c) defines, it is difficult for both defendants and prosecutors to predict which indictments are constitutional.

This Comment addresses the question of how many crimes § 924(c) defines. Part I explains the history of § 924(c). Part II considers the disagreement among courts as to how many crimes § 924(c) defines and explains that the disagreement persists because first-order tools of statutory interpretation fail to conclusively resolve this question. Part III argues that because first-order tools of statutory interpretation do not conclusively indicate how many crimes § 924(c) defines, courts must look to second-order tools of statutory interpretation like the canons of construction. Specifically, this Comment suggests that courts look to the rule of lenity. This Comment clarifies the rule of lenity, explaining that it requires courts to interpret statutes so that they lead to less punishment. Building on that clarification of the rule of lenity, this Comment argues that courts invoking the rule of lenity must interpret § 924(c) as defining a single crime because this interpretation leads to less punishment. This solution is not limited to the question of how many crimes § 924(c) defines. Courts generally struggle to determine whether a statute defines two separate crimes or alternative means for committing a single crime. This solution can resolve otherwise intractable questions of how many crimes any given statute creates.