Saturday, March 31, 2012

Case o' Week: A Minor "Major" Sentencing Win - 924(c)s and Sentencing

Hon. John T. Noonan

NOONAN, Circuit Judge, concurring and dissenting:
I concur in the opinion of the court except as to the sentences of over 700 years. The court says, “No one could dispute that a sentence of almost 750 years is harsh.” No one would bother to characterize such a sentence as “harsh.” It is simply incapable of execution. 

No known human being has the capacity to live 700 years. No living human being is likely to live 700 years. On its face, the sentence is impossible to execute.

The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture.

United States v. Major, 2012 WL 1001188, *9 (9th Cir. Mar. 27, 2012) (Noonan, J., concurring and dissenting), decision available here.

  Judge Noonan (above right) doesn't note in his dissent that Major actually gives these defendants a sentencing break: thirty-six months off of their sentences. Id.  

   They'll only serve 742 years, instead of 745.  Marcus Major's release date will be moved back to March 15, 2654. See BOP Inmate Locator, Release Date, Marcus Major, here.

Players: Decision by Judge Wallace, joined by Judge M. Smith. 

   Judge Noonan concurs and dissents.

Facts: Over eight months, armed robbers hit a string of Fresno and Madera retail stores. Id. at *1. Marcus Major and Jordan Huff were arrested while fleeing the scene of a liquor store and charged with over thirty counts of conspiracy, § 924(c) offenses, and other federal crimes. Id. They were convicted after trial. Id. 

The “use” of a gun during a felony is a Section 924(c) offense, and sentences vary depending on how the gun was "used." A “brandishing” § 924(c) conviction carries a 7-year mand-min, a “discharge” § 924(c) carries a 10-year mand-min, and when there is a second § 924(c) conviction that carries a 25-year mand-min. Id. at *7. 

Major and Huff were convicted of “brandishing” and “discharge” § 924(c)’s. When sentencing the district court started with “discharge” (10 years) then stacked 25 years for each additional § 924(c). Id. at *7. “Thus Major and Huff received sentences three years longer than they would have had the district court deemed a brandishing count to be the first conviction.” Id. 

Both men were sentenced to over 745 years. Id. at *1.

Issue(s): “[Appellants] argue that the district court erred in using a ‘discharging’ offense, rather than a ‘brandishing’ offense as the first conviction under section 924(c), resulting in sentences three years longer than if the district court had used a ‘brandishing’ offense as the first conviction.” Id. at *1.

Held: “Applying the rule of lenity, when the district court does not have sufficient information to determine the order in which the jury made determinations of guilty during jury deliberations on multiple counts under section 924(c), it must order the convictions so that the mandatory minimum sentence is minimized. In this case, application of the rule requires the district court to deem one of the brandishing counts, rather than a discharging count, to be the first conviction.” Id. at *9.

Of Note: The bottom line? Major gets a 742 year sentence, instead of 745. The absurdity of this sentence is not lost on dissenting Judge Noonan: “The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture.” Id. at *9 (Noonan, J., dissenting).

How to Use: Major is worth a worried read for its FRE 404(b) holding. Id. at *2. In the trial of the retail store robberies, the government was permitted to introduce evidence of earlier home invasion robberies as 404(b) evidence. Id. Judge Wallace walks through the evidentiary value of the home invasion robberies, as they related to the“identity” of the retail store robbers. Id. He ties the two sets of robberies together with the ballistics on the guns used. Id. at *3. Judge Wallace concludes that the home invasion robberies were relevant to identity, “because a jury could reasonably assume that possession of the firearms did not change during the period between each crime.” Id. at *3. The decision is not a profound change in (fact-bound) FRE 404(b) law, but it is a worrisome new addition. Beware of Major and FRE 404(b) in cases involving uncharged offenses and ballistics – a dangerous mix for the defense.

For Further Reading: Read Frye and Lafler yet? These are important new Supreme Court decisions on the Sixth Amendment duties owed to our clients during the plea negotiation process. See SCOTUS blog here.  

Add Padilla to this mix (immigration advisement), and you’ve got a trio of opinions that stiffen our clients’ rights to make informed decisions. This is good. 

The decisions, however, make DOJ and district courts twitchy. Nationally, plans are brewing to expand court inquiries into attorney-client communications about deals – possibly treading on highly confidential ground. This is bad. 

Stave this off (or anticipate the trend) by revisiting that quaint old practice of conveying formal government offers to your clients, in writing, with an explanation of the offers’ pros and cons. After Frye and Lafler, seems imprudent to go to trial without such a letter in the file.

Image of the Honorable Judge John T. Noonan from

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at


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