Busic v. United States, 446 U.S. 398 (1980)

MR. JUSTICE STEWART, with whom MR. JUSTICE STEVENS joins, dissenting.

Under 18 U.S.C. § 924(c), "[w]hoever -- (1) uses a firearm to commit any [federal] felony . . or (2) carries a firearm unlawfully during the commission of any [federal] felony," is subject to a term of imprisonment in addition to that provided for the felony in question. In Simpson v. United States, 435 U.S. 6, which involved both § 924(c)(1) and a felony proscribed by a statute that itself authorizes an enhanced penalty if a dangerous weapon is used, the Court held that Congress did not intend to authorize the imposition of enhanced punishments for a single criminal transaction under both 924(c)(1) and the enhancement provision for the predicate felony. The Court today concludes that Congress not only did not intend to authorize the imposition of double enhancement, but also did not intend § 924(c)(1) to apply at all to a felony proscribed by a statute with its own enhancement provision. I disagree. It is my view that § 924(c)(1) was intended to apply to all federal felonies, though subject to the limitation in Simpson against double enhancement.

Congress enacted § 924(c) as part of the Gun Control Act of 1968, Pub.L. 9618, 82 Stat. 1213. That legislation, enacted the year in which both Robert Kennedy and Martin Luther King, Jr., were assassinated, was addressed largely to the "increasing rate of crime and lawlessness and the growing use of firearms in violent crime." H.R.Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968). A primary objective of § 924(c), as explained by its sponsor, Representative Poff, was to "persuade the man who is tempted to commit a Federal felony to leave his gun at home." 114 Cong.Rec. 22231 (1968). Towards that end, 924(c) provides for a prison term, in addition to that provided for the underlying felony, of not less than 1 year nor more than 10 in the case of a first offender, and of not less than 2 years nor more than 25 in the case of a second or subsequent offender. It further provides that a sentence imposed under § 924(c) is not to run concurrently with the sentence for the predicate felony, and that, in cases of repeat offenders, the defendant cannot receive probation or a suspended sentence.

Before the enactment of § 924(c), earlier Congresses had already authorized enhanced penalties for using a dangerous weapon in the commission of certain especially serious federal felonies, including assault on a federal officer, 18 U.S.C. § 111, and bank robbery, 18 U.S.C. § 2113(a),(d). Those enhancement provisions authorize terms of imprisonment of (1) not more than an additional seven years under § 111, and (2) not more than an additional five years under §§ 2113(a)(d). Neither provision requires a mandatory minimum additional sentence or authorizes increased additional sentences for recidivists.

In Simpson, the Court held that Congress did not intend the imposition of enhanced punishments under both § 924(c)(1) and the enhancement provision for a predicate felony. That conclusion found substantial support in the statement of Representative Poff on the House floor that,

[f]or the sake of legislative history, it should be noted that my [bill] is not intended to apply to title 18, sections 111, 112, or 113, which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies of the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies.

114 Cong.Rec. 22232 (1968).

The issue here is not that of double punishment, but instead whether the Government may obtain enhancement of punishment under § 924(C)(1), rather than under the enhancement provision for the predicate felony. The Court today concludes that Congress did not intend § 924(C)(1) to apply at all to a predicate felony proscribed by a statute with its own enhancement provision. It is thus the Court’s view that the Government may obtain an enhanced sentence only under the enhancement provision for the underlying felony itself.

Although this conclusion finds support in certain passages in Simpson and in the literal terms of Representative Poff’s statement on the House floor, it is not supported by the actual holding in Simpson, the language of the statute itself, or a fair appraisal of the intent of Congress in enacting § 924(C). In Simpson, the Court decided only that,

in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced [to enhanced punishments] under both § 2113(d) and § 924(c).

435 U.S. at 16 (emphasis added). The Court did not decide whether § 924(c)(1) is available as an alternative enhancement provision. On this latter question, the statutory language is unambiguous, for § 924(c)(1) provides, by its terms, for an enhanced penalty for "[w]hoever . . . uses a firearm to commit any [federal] felony." (Emphasis added.)

To be sure, Representative Poff stated that his bill "[was] not intended to apply" to certain felonies proscribed by statutes that contain their own enhancement provisions. But that statement could as easily have been directed to the question in Simpson -- whether § 924(c)(1) can be invoked in addition to a previously enacted enhancement provision -- as to the question in this case -- whether § 924(c)(1) can be invoked in lieu of such a provision.

I agree with the holding in Simpson that Congress did not intend to "pyramid" punishments for the use of a firearm in a single criminal transaction. Yet I find quite implausible the proposition that Congress, in enacting § 924(c)(1), did not intend this general enhancement provision -- with its stiff sanctions for first offenders and even stiffer sanctions for recidivists -- to serve as an alternative source of enhanced punishment for those who commit felonies, such as bank robbery and assaulting a federal officer, that had been previously singled out by Congress as warranting special enhancement, but for which a lesser enhancement sanction than that imposed by § 924(c) had been authorized. In the light of the expressed concerns of Congress in enacting the Gun Control Act of 1968 in general, and 924(c)(1) in particular, it is far more reasonable to conclude that Congress intended § 924(c)(1) to mean precisely what it says, namely, that it applies to any federal felony.

It is my view, in sum, that § 924(c)(1) applies to all federal felonies, though subject to the limitation in Simpson against double punishment. Under this reading of the statute the Government may obtain an enhanced sentence under either § 924(c)(1) or the enhancement provision for the predicate felony, but not under both.

For the foregoing reasons, I dissent.*