The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J.
The distorting effects of mandatory minimum sentences are never more evident than in the case of defendant Zachary Ballard. Although his co-defendant, Anthony Steele, by entering into a plea bargain excluding mandatory minimums, obtained a sentence of 168 months in prison, Ballard, by exercising his constitutional right to go to trial, faced mandatory minimums upon conviction that required this Court, on February 8, 2009 to sentence him to a term of imprisonment of 601 months, i.e., just over 50 years. The Government, moreover, believing that the law requires the Court to sentence Ballard to approximately 167 months more - - i.e., to approximately 64 years in prison - - now moves, pursuant to Fed. R. Crim. P. 35(a), to correct defendant's sentence for "clear error."
Given that the law so favors consecutive mandatory minimums, the motion is not frivolous; but in the end, the Court denies the motion.
By way of background, on July 22, 2008, a jury found Ballard guilty of all seven counts relating to a series of armed robberies that he and Steele executed pursuant to their conspiratorial plan. Specifically, Count 1 charged Ballard with participating in a conspiracy to commit robberies from October through November 2007, in violation of 18 U.S.C. § 1951; Counts 2, 4, and 6 charged Ballard with committing those specific robberies in violation of 18 U.S.C. §§ 1951 and 2; and Counts 3, 5, and 7 charged Ballard with using, carrying, possessing, and brandishing a firearm during and in relation to each of those robberies, in violation of 18 U.S.C. § 924(c).
Under the Sentencing Guidelines (which are not binding on this Court but which the Court must consider), Counts 1, 2, 4, and 6 (the "non-gun counts") carry a Guidelines range of 84 to 105 months in prison (approximately seven to nine years), with no mandatory minimum sentence. By contrast, Counts 3, 5, and 7 (the "gun counts") carry the mandatory minimum sentences set forth in 18 U.S.C. § 924(c), i.e., a mandatory consecutive term of 84 months (7 years) on Count 3, a mandatory consecutive term of 300 months (25 years) on Count 5, and a mandatory consecutive term of 300 months (25 years) on Count 7. The Government's position is that the Court should impose on the non-gun counts a sentence at least at the bottom of the Guidelines range (i.e. 7 years), plus consecutive sentences on each of the gun counts (i.e. 7 years plus 25 years plus another 25 years), for a total of 64 years in prison.
On December 3, 2008, defendant initially appeared for sentencing. At that time, the Court expressed reservations about imposing a 64-year sentence for a string of robberies that, although by any account serious and deserving of a significant sentence, did not result in any bodily injury or death. See 12/3/08 Transcript. Accordingly, the Court adjourned sentencing to a later date, and asked the parties to submit supplemental briefing on whether or not the Court was required to "stack" the mandatory minimum sentences set forth in section 924(c).
At the December 3 hearing, the Court also expressed its belief that a sentence of "somewhere between 25 and 35 years, a very substantial sentence under any conceivable analysis," would be more than sufficient to achieve the overall Congressional purposes of sentencing as set forth in 18 U.S.C. § 3553(a). Id. at 13. The Government apparently agreed that 64 years was unnecessary, because it proceeded, commendably, to offer defendant a "sentence bargain," stipulating that, if the defendant waived any sentence appeal, the Government would not object to a sentence of 32 years (384 months) on Counts 3, 5, and 7, thus demonstrating, at least implicitly, the Government's belief that a sentence of 39 years (i.e. 32 years on the gun counts and a likely 7 years or so on the non-gun counts) would be sufficient, but not greater than necessary, to fulfill all relevant sentencing purposes. See 18 U.S.C. § 3553(a). Over his counsel's recommendation, however, the defendant, once again asserting his full panoply of rights, rejected the sentence bargain, and, accordingly, the Court reconvened defendant's sentencing on February 18, 2009.
At defendant's resumed sentencing, argument focused primarily on the proper construction of 18 U.S.C. § 924(c)(1)(A)'s "except clause." That subsection provides, in relevant part:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection, or by any other provision of law, any person who, during and in relation to a crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . .
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A) (emphasis added). Subsection 924(c)(1)(C) of that same subsection then goes on to prescribe a greater mandatory minimum sentence of 25 years if the conviction represented the defendant's second or subsequent violation of the subsection. 18 U.S.C. § 924(c)(1)(C). Finally, subsection 924(c)(1)(D)(ii) provides that "no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed." 18 U.S.C. § 924(c)(1)(D)(ii).
The Government argued that, taken together, these provisions mandated a seven-year mandatory minimum sentence under section 924(c)(1)(A)(ii), to be followed by two consecutive 25-year sentences under section 924(c)(1)(C), for a total of 57 years on the gun counts, consecutive to whatever sentence the Court imposed on the non-gun counts (which, the Government argued, should be at least 7 years). In United States v. Whitley, however, the Second Circuit held that subsection 924(c)(1)(A)'s "except clause" prohibited the district court from imposing a 10-year minimum consecutive sentence for the use and discharge of a firearm, because the defendant was convicted in the same case of violating another provision of law that provided a greater minimum sentence, i.e., being a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), which carried a 15 year mandatory minimum sentence. 529 F.3d 150, 151 (2d Cir. 2008). In so holding, the court made clear that the "except clause" means what it literally says, the ten-year minimum sentence required by subdivision (iii) of that subsection for discharge of a firearm, which must run ...