WASHINGTON (CN) — The liberal wing of the Supreme Court seemed to sympathize Tuesday with a former Bronx cocaine dealer whose 30-year prison sentence includes a mandatory-minimum sentence on one count and a consecutive sentence for his second conviction.
The case stems from a murder plot cooked up in the summer of 2002 by a group selling cocaine in the Bronx. Efrain Lora was with his associates when they picked up the guns, but his job was to wait in a separate car and call the others when he saw Andrew Balcarran, a rival drug dealer, in front of his house.
Thirteen years after Lora's associates shot and killed Balcarran, Lora was federally charged and convicted in a jury trial. The district court then sentenced Lora to 25 years of imprisonment for aiding and abetting the intentional killing of a person while engaged in a drug trafficking conspiracy. For the other conviction — aiding and abetting the use of a firearm, during and in relation to a drug trafficking crime, that causes death to another — the court ordered a five-year consecutive sentence.
As Lora sees it, however, his conviction would have had to be under Section 924(c) in order to support the consecutive sentence. Lora meanwhile was convicted under a different subsection, Section 924(j), which does not include such a mandate.
He went to the high court after failing to overturn his sentence at the Second Circuit.
During the hearing, Justice Ketanji Brown Jackson pushed Erica Ross, assistant to the U.S. solicitor general, on the government's support for the consecutive sentences.
"I don't understand why the government believes in this case that it's entitled to the penalty structure that comes with Section C if a person is convicted of C, when J doesn't say [so] — and it could easily have said,” Jackson said.
Ross did not dispute "that Congress could have been clear in this provision."
“My point," the government lawyer continued, "was simply that it also doesn't say what petitioner is suggesting.”
Jackson noted otherwise.
“Congress was careful and thoughtful about the placement of J,” Jackson said. “They could have put it in C to accomplish what you've talked about, but they didn't.”
Lora’s attorney, Lawrence Rosenberg of Jones Day, said Tuesday that “nothing in the text” supports the government’s argument.
“For example, voluntary manslaughter with a machine gun has a mandatory minimum penalty under Subsection C of 30 years, but a maximum penalty of 15 years under subsection J,” said Rosenberg. “They can't coexist.”
Rosenberg faced skepticism from Justice Brett Kavanaugh.
“I tend to doubt Congress really intended your result,” Kavanaugh told the lawyer.
Justice Samuel Alito seemed skeptical too, calling the petitioner’s argument a “weird situation where whether or not a sentence can be consecutive or concurrent, depends on the sequence of the violations.”
“Do you think it's ever possible for somebody to be convicted under the operation jointly of two separate provisions?” Alito asked.
Rosenberg said potentially, and that it would depend on how the prosecutors charged a defendant.
Like Jackson, Justice Sonia Sotomayor, too, expressed doubt about the government’s argument.
“How you kill somebody is irrelevant under your view because they're all going to get the same sentence,” she said, asking why the sections would be separate under the government’s argument if doing so would be repetitive.
“Petitioner’s reading gives a reason: You're absolutely right. If you do it in this way, you're gonna get this minimum. If you don't do it in this way. You get the maximum,” Sotomayor said of C and J, respectively.
“Congress was just trying to be complete,” Ross offered.
Joining in with her fellow liberal colleagues, Justice Elena Kagan questioned whether the two statutes could be inherently botched because the subsections were added by different versions of Congresses.
“Isn’t the truth of the matter here that Congress just made a mistake?” she asked.
Jackson appreciated Kagan’s point.
“That seems perfectly rational to me, as opposed to absurd,” Jackson said, noting that the United States had a different Congress in 1994 than in 1968.
“So that when J was created, perhaps that Congress made a different policy choice [than it had under the then-decades-old C] about the determination of mandatory minimums versus increasing the maximums,” Jackson said.
“If we can't know what Congress was thinking, except that it knew to add armor in C. And yet, it created J separately,” she noted. “And what it did in J was to raise a statutory maximum and give you a statute of limitations.”
Meanwhile, Justices Kavanaugh and Samuel Alito seemed to be persuaded by the government’s argument.
“Congress was generally concerned, and is still concerned, about what it views as light senses in cases involving guns," Kavanaugh offered. "So drug and crimes of violence where guns are carried or used, but if you think about 924 J, do you think Congress was concerned that judges were imposing light sentences when there was a killing as well?”
Alito meanwhile called the petitioner’s argument “strange,” questioning the position that it's possible for the government to charge a C violation and a J violation separately.
Lora's attorney noted in the petition for certiorari that the high court's input is needed to resolve a circuit split.
“This case presents a clear, deep, and intractable split among at least seven circuits that has been explicitly acknowledged by several courts of appeals on a question of statutory interpretation: whether the provision that prohibits concurrent sentencing for sentences ‘imposed … under this subsection’ is triggered by a conviction and sentence imposed under a separate subsection,” Rosenberg and co-counsel wrote.
The Third, Fourth, Eighth and Ninth Circuits are all aligned with the Second Circuit on the issue, but the 10th and 11th Circuits have held that district courts have discretion to impose concurrent or consecutive sentences.
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