Federal Firearm Offenses, Construction of ‘Except’ Clause

Abbott v United States, __ US __; 131 S Ct 18 (2010)(nov’10). In a pair of cases the Court considered the argument of the defendants that 18 U.S.C. § 924(c)’s “except” clause rendered their consecutive sentences for using, carrying or possessing a deadly weapon in connection with “any crime of violence or drug trafficking crime.” The clause reads that § 924(c) requires a minimum five year consecutive sentence “except to the extent that a greater minimum sentence is otherwise provided by [§ 924(c) itself] or by any other provision of law. Defendants argued that since they received greater minimum sentences for other counts of conviction unrelated to § 924(c), sentencing under that section should not have been allowed. The Court disagreed, holding that the ‘except’ clause simply disqualifies the five year sentence if a defendant is being sentenced to enhanced levels for the § 924(c) violation (seven years for “brandishing” the weapon and ten years for discharging it).