The Volokh Conspiracy
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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.
