Tough gun sentences upheld

By Robert Barnes
Tuesday, November 16, 2010

The Supreme Court's first signed opinion of the term was unanimous bad news for drug dealers who carry guns.

The court examined a federal law that allows tougher sentences for those who use firearms while selling drugs or committing violent acts, and said the intent of a slightly ambiguous turn of phrase was clear: to tack more years onto an offender's sentence.

The 8 to 0 decision was written by Justice Ruth Bader Ginsburg. New Justice Elena Kagan was recused because she had worked on the case as President Obama's solicitor general. The court adopted the position that she had advocated.

The challenge was to a federal law that makes it a separate offense to use, carry or possess a deadly weapon in commission of any crime of violence or drug trafficking. In 1998, Congress added a provision that a minimum term of five years be added to a sentence, "except to the extent that a greater minimum sentence is otherwise provided" by the provision or other parts of the law.

In unrelated cases, Kevin Abbott and Carlos Rashad Gould each received the five-year sentence for possessing a gun in connection with a crime. Abbott's sentence was imposed on top of a 15-year mandatory sentence for being a felon in possession of a firearm. Gould's additional time was added to a 10-year mandatory sentence for drug trafficking.

Each argued that the "except" provision meant he did not deserve the extra time because his mandatory sentence was greater than five years. The two argued that Congress's intent in the provision was to ensure that an offender serve at least five years, not that prison time be added.

But Ginsburg said accepting the arguments of Abbott and Gould would have the effect of weakening the punishment for those using firearms to commit crimes. "We doubt that Congress . . . in a bill dubbed 'An Act to throttle the criminal use of guns' " had such a reading in mind, she wrote.

She said the "except" clause refers to other provisions that provide tougher penalties in regards to firearms. The law, for instance, increases the five-year penalty for having a gun to seven years if the firearm is brandished, and to 10 years if it is discharged.

What Congress meant, Ginsburg said, is that a perpetrator who possessed, brandished and fired a gun would face a mandatory minimum sentence of 10 years, the highest penalty specified.

The cases are Abbott v. U.S. and Gould v. U.S .

The court took two other criminal law cases Monday that will be heard after the first of the year.

In one, the justices will determine whether a person's motor vehicle records can be used as evidence, if they are consulted after police make an illegal traffic stop. In Tolentino v. New York, Jose Tolentino was stopped because police said his music was too loud. Upon learning his name, they consulted records and found his license has been suspended.

Tolentino said that evidence should not be allowed, but the state's highest court disagreed. It is the second "exclusionary rule" case the court has accepted this term.

The court also agreed to hear Fowler v. U.S., which concerns what proof prosecutors must offer to convict someone of the federal charge of killing a person to keep him from reporting a federal crime.

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