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Stacked

In Federal Court, if a defendant is charged with a violent crime or a drug trafficking offense, and possesses a firearm “in furtherance” thereof, not only does the defendant get a sentence for the underling violent crime or drug offense, but a mandatory consecutive sentence of 5, 7 or even 10 years.  These mandatory consecutive firearm sentences are referred to by their statutory reference, 924(c) offenses.

For example, if a defendant receives a sentence of 5 years for drug distribution, he/she will get an additional 5 years (10 total) for possession of firearm in furtherance of the drug distribution; he/she will get an additional 7 years (12 total) for brandishing the firearm in furtherance of the drug distribution; or, he/she will get an additional 10 years (15 total) for discharging the firearm in furtherance of the drug distribution.  Moreover, prior to the First Step Act of December 2018, ushered through Congress by President Trump, if a defendant was charge with multiple 924(c) offenses in the same indictment, that individual faced a mandatory consecutive 25 years on the second 924(c) offense.  Thus, two armed robberies in the same indictment could yield at least a 30 year sentence which would then run consecutive to the actual robbery charges—likely well in excess of a 40 to 50 year sentence total.

The 2018 First Step Act “clarified” this 25-year stacking rule, asserting that only if a defendant had a previous conviction for a 924(c) offense did the staking rule apply to a subsequent indicted charge of 924(c).  However, despite “clarifying” decades of misapplication of the law in jurisdictions around the Country, those individuals sitting in prison (prior to this “clarification”) under stacked sentences, or serving sentences induced by guilty pleas because of the threat of a stacked sentence, have no meaningful, direct redress.  But…there may be some daylight.

The 2018 First Step Act additionally modified a statutory mechanism known as Compassionate Release.  Originally, Compassionate Release allowed for the Bureau of Prisons to motion federal district courts for the release of inmates under certain dire circumstances, generally extreme sickness and/or imminent death.    The 2018 First Step Act broadened this mechanism where it allowed for an inmate themselves to seek Compassionate Release from the Courts, without the need of a motion by the Bureau of Prisons.  Moreover, the 2018 First Step Act opened the door to boarder utilization of the Compassionate Release statute where “extraordinary and compelling” reasons exist that are not simply health related, but include a greater and more inclusive calculus for judicial discretion. The breadth of this discretion is being explored throughout the country in light of the current COVID-19 pandemic.    

The Fourth Circuit Court of Appeals (the Court that reviews the judgments and orders of the Eastern District of North Carolina) recently heard arguments related to the Compassionate Release provisions of the First Step Act and how individuals serving a now unlawfully stacked sentence might warrant compassionate release consideration. See U.S. v. Thomas McCoy. https://www.ca4.uscourts.gov/OAarchive/mp3/20-6821-20200910.mp3.

This is an excellent listen of great oral advocacy and garnering an understanding of the long shadow cast by 924(c) charges in our Federal Criminal Justice system—in both sentences being served and guilty pleas entered under its threat to avoid the risk of a stacked sentence.  This case may provide some relief to those that might not meet traditional compassionate release consideration, but who are serving what would now be unlawful, draconian sentences.  Ultimately, this case is about giving the judiciary meaningful discretion for compassionate release consideration—”extraordinary and compelling reasons” should not be just life threatening, but should also account for justice, equity and fairness.     

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