Sentencing Discretion at Gunpoint: How to Think about Convictions Underlying § 924(c) Mandatory Minimums

United States v Booker rapidly broadened judicial discretion in federal sentencing by rendering the United States Sentencing Guidelines merely advisory. But the Guidelines do not apply to sentences for all crimes. Some criminal statutes, such as 18 USC § 924(c), establish separate mandatory minimum sentences. Because Booker only applies to the Guidelines, it does not apply to crimes with statutory mandatory minimum sentences. Section § 924(c) makes it a crime to use a firearm in the course of committing a crime of violence or a drug trafficking offense, and the statute punishes the use of the firearm with a mandatory minimum sentence. Prosecutors separately charge the underlying crime of violence or drug trafficking offense (underlying offense), and underlying offenses are usually punished by the Guidelines. Section 924(c) indicates that the mandatory minimum must run subsequent to other convictions. Therefore, a defendant convicted of a § 924(c) firearms offense and a crime of violence must serve his entire Guidelines sentence for the crime of violence before beginning his mandatory minimum sentence for the § 924(c) conviction. When sentencing such a defendant, the court uses broad Booker discretion to determine the appropriate sentence for the underlying crime of violence, but the court cannot lower the mandatory minimum under § 924(c). When considering the appropriate sentence for the underlying crime, a judge may want to use his Booker discretion to consider the total amount of time the defendant will spend in prison, including the amount of time the defendant will have to serve under § 924(c) after completing the Guidelines sentence. This Comment focuses on the extent to which judges may consider the presence of a firearms mandatory minimum when sentencing a defendant on the separate, underlying charge.