Eleventh Circuit Court of Appeals - Published Opinions

Thursday, February 24, 2011

Julian: 924(j) does not require consecutive sentences

In U.S. v. Julian, No. 09-13673 (Feb. 22, 2011), the Court vacated a sentence and remanded for resentencing, because the district court erroneously concluded that it was required by statute to impose consecutive sentences, and lacked discretion to impose concurrent sentences.

Julian pled guilty of several offenses, including a violation of 18 U.S.C. § 924(j), which makes it a crime for a person, in the course of a violation of 18 U.S.C. § 924(c) (use of a firearm during a crime of violence or a drug trafficking offense), to cause the death of a person. At sentencing, the district court concluded that § 924(c)(1)(D)(ii) required it to impose a consecutive sentence of life for the § 924(j) violation. Reversing, the Court held that the district court could impose a concurrent punishment for the § 924(k) violation.

The Court noted that the language of § 924(c) with regard to consecutive sentences referred to “this subsection,” i.e., 924(c), not 924(j). Further, the placement of the “cause of death” provision in a separate subsection of the statute indicated that it was a separate offense, not a sentencing enhancement. Further, the considerable increase in punishment for causing the death of a person indicated that the provision created a separate offense. In addition, the government itself treated causing death as something it had to prove to obtain a conviction, because this fact increased the statutory maximum, thus confirming that the provision was more than a sentencing enhancement. The Court recognized conflict with two other Circuits, but found those opinions unpersuasive.