Criminal Justice

How Mandatory Minimum Reform Will Work with "Stacked" Charges

My case involving Weldon Angelos illustrates the problem with "stacking" federal mandatory minimum gun charges from a single episode. The statute will apparently soon be amended to become a true recidivism statute.


In the last few days, it appears that a breakthrough has occurred on the issue of mandatory minimum sentences. According to numerous news reports, President Trump has endorsed changes to federal criminal sentencing laws that return some discretion to judges and reduce (and in some cases eliminate) tough federal mandatory minimum sentencing laws. In general, this seems to be a laudable development that should improve the federal criminal justice system.

In particular, while not all of the details appear to have been sorted out (here is a current formulation), one change appears to command broad consensus: So-called "stacking" 924(c) charges will be eliminated as part of the reforms. As a former federal judge, I have some familiarity with how 924(c) charges work. Indeed, a case that handled has been commonly cited to illustrate the problem with allowing federal prosecutors to "stack" charges from single criminal episode.

Here are the opening paragraphs from my November 2004 district court opinion, in which I decried a 55-year sentence that federal law required me to impose on Weldon Angelos:

Defendant Weldon Angelos stands now before the court for sentencing. He is a twenty-four–year-old first offender who is a successful music executive with two young children. Because he was convicted of dealing marijuana and related offenses, both the government and the defense agree that Mr. Angelos should serve about six to eight years in prison. But there are three additional firearms offenses for which the court must also impose sentence. Two of those offenses occurred when Mr. Angelos carried a handgun to two $350 marijuana deals; the third when police found several additional handguns at his home when they executed a search warrant. For these three acts of possessing (not using or even displaying) these guns, the government insists that Mr. Angelos should essentially spend the rest of his life in prison. Specifically, the government urges the court to sentence Mr. Angelos to a prison term of no less than 61 1/2 years—six years and a half (or more) for drug dealing followed by 55 years for three counts of possessing a firearm in connection with a drug offense. In support of its position, the government relies on a statute—18 U.S.C. § 924(c)—which requires the court to impose a sentence of five years in prison the first time a drug dealer carries a gun and twenty-five years for each subsequent time. Under § 924(c), the three counts produce 55 years of additional punishment for carrying a firearm.

The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational. Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency (the United States Sentencing Commission) believes is appropriate for possessing firearms under the same circumstances. The 55–year sentence substantially exceeds what the jury recommended to the court. It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal "three strikes" provision.

At the same time, however, this 55–year additional sentence is decreed by § 924(c). The court's role in evaluating § 924(c) is quite limited. The court can set aside the statute only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment. After careful deliberation, the court reluctantly concludes that it has no choice but to impose the 55 year sentence. While the sentence appears to be cruel, unjust, and irrational, in our system of separated powers Congress makes the final decisions as to appropriate criminal penalties. Under the controlling case law, the court must find either that a statute has no conceivable justification or is so grossly disproportionate to the crime that no reasonable argument can be made its behalf. If the court is to fairly apply these precedents in this case, it must reject Mr. Angelos' constitutional challenges. Accordingly, the court sentences Mr. Angelos to a prison term of 55 years and one day, the minimum that the law allows.
To correct what appears to be an unjust sentence, the court also calls on the President—in whom our Constitution reposes the power to correct unduly harsh sentences—to commute Mr. Angelos' sentence to something that is more in accord with just and rational punishment. In particular, the court recommends that the President commute Mr. Angelos' sentence to no more than 18 years in prison, the average sentence that the jurors in this case recommended. In addition, the court also calls on Congress to modify § 924(c) so that its harsh provisions for 25–year multiple sentences apply only to true recidivist drug offenders—those who have been sent to prison and failed to learn their lesson.

My 2004 opinion called on the President to commute Mr. Angelos' sentence. After I resigned my judicial position in 2008, the Justice Department undertook a review of lengthy sentences. As part of that review process, in February 2016 I sent a letter to President Obama reaffirming my call for Angelos' sentence to be commuted. President Obama acted a few months later, commuting Angelos' sentence so that he ended up serving 13 years in prison.

My 2004 opinion also called on Congress to amend the 924(c) provisions, so that they became "true" recidivist statutes–that is, statutes that enhanced sentences only when a criminal had been sent to prison and released and then thereafter committed another crime. The problem that Angelos' sentence starkly highlights was that, in the course of just a few days or few weeks, a single episode of criminal behavior could earn a defendant 55 years (or more) of stacked up federal prison time, even when virtually no one thought that such a sentence was appropriate. It now looks like 924(c) stacked charges will be reformed soon.

The statutory fix in the statute is relatively easy to draft. All that needs to happen is that the enhanced sentencing provisions are triggered only after a prison term is served on the initial gun charges. This change appears to be part of the new reform measures. The net result is that about 60 federal offenders are year will see their sentences cut in half, according to an analysis by the Sentencing Commission.

Sometimes it is argued that such extremely tough mandatory minimum sentences are important to protect victims of crime. And we always need to be cautious when considering changes to criminal sentencing laws and to ensure that victims' voices are heard in the process. But as I wrote in responding to such arguments in the Angelos case, disproportionate sentences can produce an overarching harm of reducing respect for our justice system:

The problem with this simplistic position [that if you "can't do the time don't do the crime] is that it overlooks other interests that are inevitably involved in the imposition of a criminal sentence. For example, crime victims expect that the penalties the court imposes will fairly reflect the arms that they have suffered. When the sentence for actual violence inflicted on a victim is dwarfed by a sentence for carrying guns to several drug deals, the implicit message to victims is that their pain and suffering counts for less than some abstract "war on drugs."

This is no mere academic point, as a case from this court's docket will illustrate. Earlier today, shortly before Mr. Angelos' hearing, the court imposed sentence in United States v. Visinaiz, a second-degree murder case. There, a jury convicted Cruz Joaquin Visinaiz of second-degree murder in the death of 68–year–old Clara Jenkins. On one evening, while drinking together, the two got into an argument. Ms. Jenkins threw an empty bottle at Mr. Visinaiz, who then proceeded to beat her to death by striking her in the head at least three times with a log. Mr. Visinaiz then hid the body in a crawl space of his home, later dumping the body in a river weighted down with cement blocks. Following his conviction for second-degree murder, Mr. Visinaiz came before the court as a firsttime offender for sentencing. The Sentencing Guidelines require a sentence for this brutal second-degree murder of between 210 to 262 months. The government called this an "aggravated second degree murder" and recommended a sentence of 262 months. The court followed that recommendation. Yet on the same day, the court is to impose a sentence of 738 months for a first–time drug dealer who carried a gun to several drug deals!? The victim's family in the Visinaiz case—not to mention victims of a vast array of other violent crimes—can be forgiven if they think that the federal criminal justice system minimizes their losses.

The 924(c) provisions are one part of a broader sentencing package—indeed, some of the other changes will affect a far larger number of prisoners. But the 924(c) change is emblematic of what the new changes are designed to achieve. With respect to this change in particular, I am glad to see some common sense reforms are being made. A federal criminal justice system that commands respect through fair sentencing is good not only for crime victims but for all of us. Without a shared view that the federal criminal justice system operates fairly, it cannot do its job of helping to keep us safe.

NEXT: A Reminder About Rumsfeld v. FAIR

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  1. 60 people a year doesn’t sound like much of a reform, even if it saves them 40 years apiece. But it’s a start.

  2. Three cheers for Prof. Cassell here, but it is worth noting that selling marijuana and possessing a gun shouldn’t be crimes at all. So the government ruined this guy’s life for 13 years over nothing.

  3. So declare the firearm charges to be what they are, an infringement; and throw them out as unconstitutional.
    Declare the listing of marijuana as schedule one to be invalid as the law does not allow drugs with proved medical use to be on schedule one, and set the poor man free.
    What can they do? Fire you from a lifetime appointment?

    1. This is my question, and as a former judge, maybe the author can (and maybe even will!) answer: What happens if you just say “That’s retarded” and… don’t sentence him for that long? Call it “judicial nullification”, perhaps?

      1. I think the govt can appeal the sentence if it diverges from the mandates, and I think the higher courts can sanction lower court judges that refuse to follow direct orders.

    2. 1. The firearm charges are not unconstitutional. This was pre-Heller, so we were dealing with the Miller standard and it wasn’t even clear that there was a recognized individual right, but even if we assume post-Heller jurisprudence, firearms as an enhancement to an existing crime are different than a direct ban or even a regulation. (For those who love to analogize to free speech, this is true in that area as well. See Wisconsin v. Mitchell.)

      Using a gun in the commission of a crime can make the crime more dangerous. And while there is a constitutional right to keep and bear arms, there isn’t a right to use a gun in the commission of a crime. So it’s clear that firearms enhancements don’t violate the Second Amendment.

      2. Lower court federal judges have to follow the law and precedent. No, they can’t fire him (except via impeachment, although I could see drug warriors back in the day seeking the impeachment of federal judges who refused to fight the War on Drugs). But that doesn’t mean he isn’t obligated to follow the law. Getting reversed all the time by appeals courts or the Supreme Court doesn’t help litigants (it just costs them extra money) and doesn’t do any good. Indeed, it can end up hurting innocent people if Judge Cassell had gained the reputation as a judge who didn’t follow the law; appellate courts sometimes take that into account when deciding whether to take a case and/or

      1. We also shouldn’t forget the source of these harsh changes: Much higher crime rates and “too soft” judges.

      2. DE-
        What is “using” a gun in this case? Having one around? How is that “using”? Firing, even Brandishing might be considered using, but mere possession doesn’t qualify.

        1. Those are all good points, but they don’t go to the constitutionality of enhancements. The legislature is entitled to make a determination that crimes where a firearm is present are worthy of greater punishment, the same way it can determine that crimes that have a racial motive are worthy of greater punishment.

          That determination might be wrong, or might benefit from individualized consideration. But the Constitution doesn’t prohibit an enhancement on that basis, because while there is a constitutional right to keep and bear a firearm, there is no constitutional right to keep and bear one while committing a crime.

        2. That was my first thought.

          But then I thought again.

          Say a burglar attempts to find empty houses to burgle but he carries a gun just in case he meets someone in a house because dead men tell no tales. Doesn’t it make sense to punish him more heavily than a burglar who does not carry a gun and therefore is presumably not planning to potentially kill people during his criminal activities?

          I see nothing wrong with giving this guy an extra 5 years for carrying a gun. But 25 years, whether it is the first time or the 25th seems unreasonable unless, at minimum, he has a record of trying to kill people with a gun.

      3. Just a side note – “using a gun in the commission of a crime” is vastly different from “possessing a gun while committing a crime”. You could maybe argue that having the gun with him during the drug deal might, perhaps, if you squinted at it just right, made the drug deal less safe. (The counter-argument is that “an armed society is a polite society” and that the possibility of weapons by both sides decreases the probability of violence by either side. Note also that no other criminalization of the use of something gets triggered by mere possession. You have to at least brandish it.) No such argument can be made for the third charge where, by the government’s allegation, the guns were left at home.

  4. You might notice that it wasn’t Obama that got behind fixing this, or Bush, or even Clinton, but rather Donald Trump.

    1. Trump clearly deserves credit for supporting the prison reform bill. Even Bill Maher, one of his fiercest critics, gave him some credit on Friday night.

      You wouldn’t know it from all the name calling and heated rhetoric, but there are still plenty of issues where left and right can agree on some things and work together on improvements and solutions.

      1. As is so often the case *cough*NorthKorea*cough*, Trump is getting credit for things he hasn’t actually done. So far, all he has done is that he has expressed verbal support for a legislative proposal, one that isn’t yet before him. If it passes, and if he then signs it, then he will indeed deserve credit.

        But until then, treat it like his verbal support for a legislative DACA — something random and arbitrary that can change on a moment’s notice because he knows nothing about anything and has no principles and whichever advisor happened to meet with him in the preceding five minutes can sway him.

  5. “…For example, crime victims expect that the penalties the court imposes will fairly reflect the arms that they have suffered….”

    Probably a typo. “harms” rather than ‘arms.’

    If the typo is in the original, then adding a “[sic]” would be needed, yes?

    1. Isn’t that the point of firearms enhancements? To ensure that the penalties fairly reflect the arms that they have suffered?

  6. Prof. Cassell deserves credit for attempt to correct the wrong imposed by our criminal justice system on a nonviolent drug offender (or, as a libertarian or anyone not backward and prudish would describe him, an entrepreneur).

  7. The obvious absurdity here is that when the defendant committed his gun crimes, he was not yet apparently a felon. As has been pointed out, I think, it would be one thing is this were a Felon in Possession (of firearms) situation, or involved recidivism. But, here you have some fairly low level pot crimes, where guns were present, but did not appear to be really involved. Making things even scarier, I know people with pot prescriptions, who otherwise legally own multiple guns, are non-felons, or have had their rights restored, and could conceivably be sentenced for an extended period of time, since, while they aren’t violating state drug laws, they still violate federal law with their possession and use of pot.

    From my point of view, just one more reason to make sure that there is never any pot in the house. Ever. Since I would prefer to own firearms.

  8. As a young private in the US Army, I was once charged with not safeguarding a Top Secret cypto list by properly documenting it’s destruction. I was later exonerated when I was able to prove that I was not on the shift that conducted and documented the destruction when the one that was, came forward. In order to get me to confess to a crime I was not guilty of, they stacked many other charges on top of the main charge that could have resulted in a minimum of 8 years in confinement at Ft Leavenworth, in other words, prison. I failed my polygraph three times due to stress and anxiety. These failures gave them the ammo they needed to pursue charges, even though I was completely truthful. I do not trust polygraphs for this reason and find them very unreliable.

    I confessed to the crime I did not commit in order to avoid prison. Luckily for me, my confession was tossed and charges dropped when the guilty party came forward. I did not get off clean however as they charged me with making a false statement for confessing to a crime I did not commit which resulted in a letter of reprimand.

    Stacking charges is common place in the military to discourage military members from waiving article 15 non-judicial punishment to pursue a trial by courts martial in the case where you did not commit the crime, yet do not have solid evidence to prove your innocence.

  9. Angelos got torched because of the gun charges. That makes the situation deceptive, because gun crimes (illegal possession, gun trafficking) are “victimless crimes”. That is, no harm has been caused to any actual victim – yet. By that same rule, drunk driving and reckless driving are “victimless” if the driver is apprehended before causing a crash.

    These “victimless” gun crimes are treated as major felonies with mandatory sentences because illegal guns, possessed by criminals, are a grave risk of death and severe injury to numerous potential victims.

    Angelos had “several” handguns; they would have cost him several thousand dollars. One may guess that he paid for them with his drug-trafficking profits, which implies that he trafficked many thousands of dollars worth of drugs. If so it would make sense for him to have a private arsenal to protect his cash and his life from drug-dealing rivals and other criminals.

    This is all supposition, of course. But it seems implausible that he was so prosperous from his lawful business that he could buy several illegal guns just for collecting, having no need of them in his criminal activity.

  10. The proposed reform legislation sounds good. But I’m also curious about the role of DOJ and prosecutors, in addition to judges.

    I’ve read that DOJ guidelines require prosecutors to seek the maximum charges. In cases such as this one, the unjust result could also have been adverted with prosecutorial discretion. Why is DOJ policy not part of the discussion?

    My favorite example of a terrible result was the case of Aaron Swartz. But when questioned by Congress, AG Eric Holder just waved it away, saying “the prosecution followed guidelines.” To me, that suggests that the harm begins even before it gets to a judge.

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