RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0382p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

LEE ALMANY,

 Defendant-Appellant.

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No. 08-6027

Filed: December 16, 2010 

Before: MERRITT, MARTIN, and COLE, Circuit Judges

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ORDER

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The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is

hereby restored in light of Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010), after

the Supreme Court vacated our judgment and remanded it to us in light of the Abbott

case.

Accordingly, the judgment of the District Court is affirmed.

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No. 08-6027 United States v. Almany Page 2

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The statute in question reads:

Except to the extent that a greater minimum sentence is otherwise provided by this

subsection or by any other provision of law, any person who, during and in relation to

any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition to the punishment

provided for such crime of violence or drug trafficking crime [receive a five year

mandatory minimum, consecutive sentence].

18 U.S.C. § 924(c)(1)(A) (emphasis added).

MERRITT and MARTIN, Circuit Judges, concurring. The Supreme Court has

now decided that the phrase “any other provision of law” has a meaning exactly opposite

to the ordinary meaning of the words. This mode of interpretation was sometimes

followed in the early days of the Common Law in the time of Edward I and II in the 13th

and 14th Centuries when the judges would sometimes correct the legislative language

and reverse the meaning of a statute under a doctrine of interpretation called “The Equity

of the Statute.” Looking back some four centuries later, Blackstone said the early judges

would sometimes change the statute when “the law (by reason of its universality) is

deficient” and needed correction or the judges had participated in making the statute and

knew what it was supposed to mean. A fuller description of this practice is found in

Plucknett, A Concise History of the Common Law, 331-35 (5th ed. 1956). In this case,

a unanimous Supreme Court engaged in a similar instance of 13th Century “originalism”

by interpreting the “equity” of a statute to mean just the opposite of what the words say

because the Court believed it knew the intended meaning of the statute.

Here the district court, at the request of the government, piled two mandatory

minimum sentences on top of each other, one a 10-year drug sentence, the second a 5-

year firearms sentence connected to the drug sentence. Our court set the 5-year firearms

sentence aside under the words of the firearms statute that state expressly that the 5-year

sentence should not be imposed at all “to the extent that a greater minimum sentence is

otherwise provided . . . by any other provision of law.” United States v. Almany,

598 F.3d 238, 241-42 (6th Cir. 2010) (quoting 18 U.S.C. § 924(c)(1)(A) (emphasis

added)).1

 The Supreme Court reversed our decision. We were wrong because in these

kinds of statutes, Congress normally intends to make sentences longer, not shorter, more

severe, not less. Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010). The Supreme
No. 08-6027 United States v. Almany Page 3

Court understood, it said, that the lesser sentence resulting from the express words “any

other provision of law” of the statute “project a rational, less harsh, mode of sentencing.

But we do not think it was the mode Congress ordered.” Slip op. at 13. Having

observed that the “less harsh”construction was a rational construction, the Court then

said that the “grammatical possibility of a defendant’s interpretation does not command

a resort to the rule of lenity if the interpretation proffered by the defendant reflects an

implausible reading of the congressional purpose.” Id. at 18 n.9 (internal quotation

marks omitted). Thus, apparently the rule of lenity based on ambiguous language does

not operate when the court resorts to the “Equity of the Statute” to give it a construction

opposite to the meaning the words ordinarily signify because the Court knows that what

the legislature intended was not what it wrote. Nothing is mentioned about an ex post

facto problem when a statute is interpreted contrary to its words. The Supreme Court

is “final but not infallible” and we must follow their interpretation of statutes. The

“Equity of the Statute” doctrine is alive and well — although unmentioned by the

Supreme Court — more than seven centuries after its origin at common law.

ENTERED BY ORDER OF THE COURT

 /s/ Leonard Green

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Clerk