Yesterday, we reported about two criminal cases granted review on Tuesday, December 13, 2023: Smith v. United States and Samia v. United States, see earlier post. Last Friday, the Supreme Court granted certiorari in two new criminal cases below.
Lora v. United States, No. 22-49 (Dec. 9, 2022) (cert. granted)
Efrain Lora was convicted by jury in the Southern District of New York of three charges: (1) used and carried firearms, or aided and abetted the use and carrying of firearms, in furtherance of a conspiracy to distribute cocaine, and while committing that crime, murdered a person, in violation of 18 U.S.C. § 924(j); (2) aiding and abetting the intentional killing of a person while engaged in a drug trafficking conspiracy, in violation of 21 U.S.C. 848(e)(1)(A) and 18 U.S.C. 2; and (3) conspiring to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A) (2012), and 21 U.S.C. 846.
Lora objected to the application of the statutory-minimum and consecutive-sentencing regime of 18 U.S.C. § 924(c) to his § 924(j) conviction—arguing that the district court had discretion over whether the § 924(j) sentence should be consecutive or concurrent. The district court rejected Lora’s objection and sentenced him to 25 years for the drug conspiracy and a consecutive five year sentence for the firearm conviction.
District courts have discretion to impose either consecutive or concurrent sentences unless a statute mandates otherwise. 18 U.S.C. § 3584(a). Section 924(c)(l)(D)(ii) of Title 18 includes such a mandate, but only for sentences imposed "under this subsection." Efrain Lora was convicted and sentenced under a different subsection, Section 924(j), which does not include such a mandate. Lora therefore argued that the district court had discretion to impose concurrent sentences because Section 924(j) creates a separate offense not subject to Section 924(c)(l)(D)(ii); yet the Second Circuit ruled that the district court was required to impose consecutive sentences because Section 924(j) counts as "under" Section 924(c). The Supreme Court, however, has held that provisions like Sections 924(c) and 924(j) define separate offenses, not the same offense, because they set forth different potential punishments based on different elements. Alleyne v. United States, 570 U.S. 99, 100 (2013).
Four circuit courts have agreed with the Second Circuit's conclusion, although for distinct reasons (the Third, Fourth, Eighth, and Ninth). At least two circuits have disagreed (the Tenth and Eleventh). In addition to the numerous appellate decisions, this issue recurs in district courts frequently, because Section 924 is one of the most frequently charged federal criminal statutes. The question presented is:
Whether 18 U.S.C. § 924(c)(l)(D)(ii), which provides that "no term of imprisonment imposed ... under this subsection shall run concurrently with any other term of imprisonment," is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).
United States v. Hansen, No. 22-179 (Dec. 9, 2022) (cert. granted)
The government is on top in this cert grant, which presents an issue previously granted review in United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020), also from the Ninth Circuit, but decided on other grounds:
Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.
Following a jury trial in the United States District Court for the Eastern District of California, Helaman Hansen was convicted on two counts of encouraging or inducing unlawful immigration for private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), and various counts of mail and wire fraud. On appeal, the Ninth Circuit vacated Hansen’s inducement convictions and invalidated § 1324(a)(1)(A)(iv) as “facially overbroad and unconstitutional" in violation of the First Amendment, affirmed in all other respects, and remanded for resentencing. Although this issue was presented for review in Sineneng-Smith, the Court did not reach the merits. Instead, the Court vacated and remanded on the alternate ground that, in reaching out to invalidate a federal statute on the basis of constitutional arguments that the defendant had not herself initially pursued, the Sineneng-Smith "appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion."