Sunday, May 06, 2012

Case o' The Week: Ninth Not Lax on Gun Stat Max - Dorsey and 924(c) Charges

Attempt to murder a witness to prevent their testimony, and you can get up to thirty years in custody. 18 USC §1512(2)(A), (3)(B)(i).

If you discharge a gun in furtherance of a violent felony, however, (and that discharge happens to intimidate a witness), what’s the stat max?


United States v. Dorsey, 2012 WL 1474689 (9th Cir. Apr. 30, 2012), decision available here.
Players: Decision by Judge Gould.

Facts: Dorsey led a car theft ring that caught the eye of the feds. Id. at *1. When Dorsey learned that a co-conspirator was scheduled to testify before the grand jury, he made statements suggesting that he was -- displeased. Id. Just before the co-conspirator’s scheduled testimony, shots fired into her apartment hit her and her older son. Id. at *2. Minutes later Dorsey called police and reported that he was far away from the shooting: he told officers that he had seen a suspect that the police were hunting. Id. at *2. Unfortunately for Dorsey, cell data revealed that at the time of the shooting Dorsey’s cell phone had accessed a tower immediately behind where the witness was shot. Id. Dorsey was charged with theft and chop-shop crimes, and a § 924(c)(1)(A) count: discharging a gun in relation to a crime of violence. Id. He pleaded guilty to everything but the § 924(c) count and went to trial on that charge. Id. at *3. Dorsey was convicted and received an eighteen-year consecutive sentence on the § 924(c) count. Id. at *4.   

Issue(s): Dorsey's final challenge is to his eighteen year sentence on Count 22. In sentencing Dorsey on this count, the district court held that the statutory sentencing range for Dorsey's 18 U.S.C. § 924(c)(1)(A)  conviction was ten years to life. Dorsey contends that the district court erred because the statutory maximum sentence under § 924(c)(1)(A) is the mandatory minimum sentence of ten years.” Id. at *9.

Held:Because Congress has made clear that § 924(c)(1)(A) offenses are to be punished severely, the rule of lenity is not properly applied here. We hold that the maximum sentence for a § 924(c)(1)(A) conviction is life imprisonment. Because the sentencing range on Dorsey's § 924(c)(1)(A) conviction was ten years to life, the district permissibly sentenced him to an eighteen year term of imprisonment on Count 22.Id. at *11-*12.

Of Note: Dorsey adds another reason to hate § 924(c) charges. You can be convicted of a § 924(c) without being convicted of the underlying count. Section 924(c)'s stack, so you can quickly be exposed to absurdly high mandatory minimum consecutive sentences with a handful of counts. Section 924(c)’s can also tie drug and gun charges together to defeat defense severance motions (when the client, for example, is charged with felon-in-possession and drugs and should otherwise get a severance). 

For an interesting piece on just how dangerous these charges are – and suggestions on how to defend against them – see AFPD John Paul Reichmuth’s great outline here.
How to Use: A life statutory maximum for a § 924(c) offense is disappointing, but isn’t terribly surprising. Three circuits have so held or have stated as dicta, as well as dicta in Supreme Court dissents. Id. at *10-*11.  

Dorsey is interesting, though, for its open embrace and (partial) reliance on dicta. As Judge Gould explains, “we think it appropriate to give some weight to the dicta of our own and other circuits suggesting that § 924(c)(1)(A) has life imprisonment as a maximum.” Id. at *11. 

This is uncommon language on dicta, and is a handy quote for future defense briefs where dicta is trending a more favorable way.  
For Further Reading: As Judge Gould correctly observes, “Technology was fatal to Dorsey’s alibi because he used a cell phone that showed his proximity to the scene of the shooting, not to where he said he was when he called.” Id. at *3.

If you haven’t yet had a case fall apart because of cell phone records, Dorsey sounds a warning bell. And, for better or worse, the Supreme Court’s Jones case did little to clarify Fourth Amendment protections for the tracking that goes on with cell phone technology. Our brainy friends at the Electronic Frontier Foundation have the web’s best collection of information on cell phone tracking: start here to learn of DOJ’s latest remarkable stance on the privacy issue.

   Image of the grand jury room from (and yes, we realize it is a California grand jury picture and that this is a federal case . . . .)
  Image of cell tower from

Steven Kalar, Senior Litigator ND Cal FPD. Webiste available at


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