PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4634

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSE ARMANDO BRAN, a/k/a Pantro,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior 

District Judge. (3:12-cr-00131-REP-1)

Argued: September 19, 2014 Decided: January 22, 2015

Before KING, SHEDD, and AGEE, Circuit Judges. 

Affirmed by published opinion. Judge Shedd wrote the majority 

opinion, in which Judge Agee joined. Judge King wrote an 

opinion dissenting in part.

ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel 

Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, 

for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, 

Acting United States Attorney, Alexandria, Virginia, Roderick C. 

Young, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Richmond, Virginia, for Appellee.
2

SHEDD, Circuit Judge:

A federal jury convicted Jose Armando Bran of five criminal

counts relating to his involvement with the street gang La Mara 

Salvatrucha, also known as MS-13. On appeal, Bran primarily 

argues that the district court erred by denying his motion for 

judgment of acquittal on Count 3 and by imposing a mandatory 

consecutive sentence for his Count 3 conviction. For the 

following reasons, we affirm.

I

Bran was convicted of conspiracy to commit murder in aid of 

racketeering (Count 1); murder in aid of racketeering (Count 2); 

use of a firearm during a crime of violence causing death to 

another (Count 3); conspiracy to commit murder in aid of 

racketeering (Count 4); and maiming in aid of racketeering 

(Count 5). Counts 1, 2, and 3 arise from the murder of Osbin 

Hernandez-Gonzalez. Counts 4 and 5 arise from the attempted 

murder of Florintino Ayala. The district court sentenced Bran to 

120 months for Count 1, mandatory life for Count 2, 120 months 

for Count 4, and 360 months for Count 5, all to run

concurrently, and life for Count 3, to run consecutively to the 

sentences for Counts 1, 2, 4, and 5.

Generally, the government presented evidence at trial

tending to establish that Bran was the leader of the Richmond 

Sailors Set, which is a violent clique of MS-13. During Bran’s 
3

involvement with the Sailors Set, the clique was a criminal 

enterprise engaged in drug trafficking, money transfers to MS-13 

leadership in El Salvador, witness tampering, violent physical

assaults – including the attempted murder of Ayala and the 

murder of Hernandez-Gonzalez – and other racketeering 

activities.

Bran’s principal argument relates to his conviction and 

sentence on Count 3. In Count 3, the government charged Bran

with violating three criminal statutes: 18 U.S.C. § 

924(c)(1)(A), 18 U.S.C. § 924(j)(1), and 18 U.S.C. § 2. Section 

924(c)(1)(A) “prohibits the use or carrying of a firearm in 

relation to a crime of violence or drug trafficking crime, or 

the possession of a firearm in furtherance of such crimes,” and 

a violation of the statute “carries a mandatory minimum term of 

five years’ imprisonment,” United States v. O’Brien, 560 U.S. 

218, 221 (2010), which must run consecutively to any other 

sentence, Abbott v. United States, 562 U.S. 8, 23 (2010). 

Section 924(j)(1) provides that a person who causes the murder 

of another through the use of a firearm in the course of 

committing a violation of § 924(c) shall “be punished by death 

or by imprisonment for any term of years or for life.” Section 

2 provides that a person “is punishable as a principal” if the 

person: (a) “aids, abets, counsels, commands, induces or 

procures” the commission of a criminal offense; or (b) 
4

“willfully causes an act to be done which if directly performed 

by him or another” would be a criminal offense. 

Pertinent to Count 3, the government presented evidence 

tending to establish that in July 2011, Bran ordered prospective 

MS-13 members Jeremy Soto and Luis Cabello to murder HernandezGonzalez, whom Bran believed to be an informant for a rival 

gang. Bran further instructed Michael Arevalo, another Sailors 

Set member, to ensure Soto and Cabello successfully killed 

Hernandez-Gonzalez. Bran gave Soto and Cabello a firearm to 

commit the murder. Pursuant to Bran’s order, Arevalo, Soto, and 

Cabello led Hernandez-Gonzalez to a path along the James River, 

where they shot him four times using Arevalo’s firearm, stole 

his cellphone, and left him to die which he did soon thereafter. 

Soto and Cabello were later initiated into Sailors Set for their 

participation in the murder.

Regarding Count 3, the district court instructed the jury 

that the government had to prove three elements beyond a 

reasonable doubt: (1) that Bran aided and abetted the murder of 

Hernandez-Gonzalez; (2) that during and in relation to

commission of the murder, Bran knowingly aided or abetted the 

use, carriage, or discharge of a firearm; and (3) that the 

firearm caused the death of Hernandez-Gonzalez. The court 

further instructed the jury that Bran could be convicted on 
5

Count 3 under the theory of aiding and abetting. Bran did not 

object to the jury instructions.

On the verdict form, the district court titled Count 3 “Use 

of a Firearm During a Crime of Violence Causing Death to 

Another.” J.A. 1311. The court instructed the jury to return a

general verdict on Count 3 and, if the jury determined Bran was 

guilty, to then answer a three-part special interrogatory. The 

interrogatory asked the jury to state whether Bran aided, 

abetted, counseled, commanded, induced, or caused another to: 

(1) use a firearm during and in relation to a crime of violence; 

(2) carry a firearm during and in relation to a crime of 

violence; and/or (3) cause a firearm to be discharged during and 

in relation to a crime of violence. The court instructed the 

jury that in answering the interrogatory, it should check which 

fact or facts, if any, it unanimously found the government 

proved beyond a reasonable doubt. Bran did not object to the 

verdict form or the instructions by the court.

The jury returned guilty verdicts on all counts. As to 

Count 3, the jury returned a general verdict of guilty and 

answered in response to the special interrogatory that Bran 

aided, abetted, counseled, commanded, induced, or caused another 

to cause a firearm to be discharged during and in relation to a 

crime of violence. Because the jury did not find that Bran aided 

or abetted another to use or carry a firearm during and in 
6

relation to a crime of violence, the district court convened 

counsel upon receipt of the verdict to discuss the implications 

of the jury’s answer to the special interrogatory. Ultimately, 

all parties agreed that it would be inappropriate to ask the 

jury any further questions about the verdict and to “go with the 

verdict form as it is.” J.A. 1299.

Bran thereafter moved for judgment of acquittal arguing, 

among other things, that the jury’s failure to specifically find 

“use” of a firearm amounts to an acquittal on the § 924(j) 

offense. The district court denied the motion. At sentencing, 

the court imposed a life sentence for Count 3. Over Bran’s 

objection, the court determined that § 924(c)(1)(A)(iii) 

mandates that the § 924(j) life sentence run consecutively to 

the sentences imposed for Counts 1, 2, 4 and 5.

II

As we have noted, Bran’s main arguments on appeal relate to 

Count 3. Specifically, he contends that the jury verdict is 

insufficient to support a conviction under § 924(j) and, 

therefore, the district court erred in denying his motion for 

judgment of acquittal. Further, he argues that the court erred 

in interpreting § 924(j) to require a mandatory consecutive 

sentence.
7

A.

Bran couches his challenge to his conviction under § 924(j)1

as a challenge to the sufficiency of the evidence. We review a

challenge to the sufficiency of the evidence de novo, United 

States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), and we must 

sustain the verdict if there is substantial evidence, viewed in 

the light most favorable to the government, to support it, Burks 

v. United States, 437 U.S. 1, 17 (1978). Substantial evidence is 

evidence that a reasonable finder of fact could accept as 

adequate and sufficient to support a conclusion of a defendant’s 

guilt beyond a reasonable doubt. Alerre, 430 F.3d at 693. A 

defendant bringing a sufficiency challenge “must overcome a 

heavy burden,” United States v. Hoyte, 51 F.3d 1239, 1245 (4th 

Cir. 1995), and reversal for insufficiency must “be confined to 

cases where the prosecution’s failure is clear,” Burks, 437 U.S. 

at 17.

 1 The appeal in this case was, at the very least, muddled. 

Throughout his appeal, Bran argued he had been convicted under § 

924(c), until his rebuttal at oral argument when he argued for 

the first time his conviction was under § 924(j). The government 

appeared to argue in its brief that Bran had been convicted of 

both a violation of § 924(c) and § 924(j). However, at oral 

argument the government stated that Bran had been convicted only 

under § 924(j). Nevertheless, by the end of oral argument, both 

sides agreed with the district court that Bran had been 

convicted, if at all, under § 924(j).
8

In order to prove a violation of § 924(j), the government 

must prove: “(1) the use of a firearm to cause the death of a 

person and (2) the commission of a § 924(c) violation.” United 

States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001). A 

defendant can be convicted for aiding and abetting a § 924(j) 

violation. See United States v. Foster, 507 F.3d 233, 246 (4th 

Cir. 2007).

We hold that the evidence is clearly sufficient to support 

Bran’s conviction under § 924(j). The jury was presented with 

substantial evidence from which to find that Bran aided and 

abetted the murder of Hernandez-Gonzalez through the use of a 

firearm. As noted, the government presented evidence that Bran 

commanded Soto and Cabello to murder Hernandez-Gonzalez, and he 

provided them with a firearm to commit the murder.2 Bran also 

directed Arevalo to ensure the murder was successful.

Despite the fact that Bran generally characterizes the 

challenge to his conviction under § 924(j) as a challenge to the 

sufficiency of the evidence, his specific argument focuses more 

narrowly on the jury verdict form and the effect of the special 

interrogatory answer. Bran does not seriously contend that the 

government failed to present adequate evidence for the jury to 

 2 When Soto and Cabello were carrying out Bran’s 

instruction, this gun misfired, so they used Arevalo’s gun to 

carry out Bran’s command to murder Hernandez-Gonzalez.
9

convict him under § 924(j). Rather, he claims that the jury 

actually acquitted him of the § 924(j) charge when it did not 

check the box that corresponded to the fact that Bran aided or 

abetted the use of a firearm on the special interrogatory. We 

disagree.

As an initial matter, Bran’s argument ignores the jury’s 

general verdict of guilt on Count 3. Without objection, the 

district court sufficiently instructed the jury as to the 

elements required to sustain a conviction under § 924(j) and the 

law of aiding and abetting under § 2. With those instructions, 

the jury found Bran guilty of aiding and abetting the “Use of a 

Firearm During a Crime of Violence Causing Death to Another.”

While the jury’s general guilty verdict alone is sufficient 

to uphold Bran’s § 924(j) conviction, the jury’s special finding 

regarding “caused a firearm to be discharged” further supports 

the § 924(j) conviction. In the context of the evidence 

presented at trial, the jury’s finding of “caused a firearm to 

be discharged” necessarily includes a finding of “use of a 

firearm.” See Smith v. United States, 508 U.S. 223, 240 (1993)

(broadly defining “use” of a firearm for purposes of § 924(c)).
10

For the foregoing reasons, we affirm Bran’s Count 3 

conviction.3

B.

Bran also argues that even if we affirm his § 924(j) 

conviction, the district court erred by treating his sentence

for Count 3 as a mandatory consecutive sentence. We review this 

issue de novo. United States v. Lighty, 616 F.3d 321, 370 (4th 

Cir. 2010).

All but one circuit court to consider this issue have held 

that a sentence imposed for a violation of § 924(j) must run 

consecutively to other sentences because Congress intended that 

punishment imposed for a § 924(j) violation be subject to the 

consecutive sentence mandate of § 924(c).4 See United States v.

Berrios, 676 F.3d 118, 143 (3d Cir. 2012) (“[B]ecause a § 924(j) 

sentence is imposed on a defendant for violating subsection (c), 

 3 Bran also argues that the district court erred by denying 

his motion for judgment of acquittal as to each count of 

conviction because the evidence is insufficient to support a 

finding that he was involved in an enterprise engaged in 

racketeering activity. We hold that the evidence is more than 

sufficient for the jury to convict on all counts. Bran further 

contends that the court erred in denying his motion to exclude 

the government’s expert testimony regarding the criminal street 

gang MS-13. We hold that the court did not abuse its discretion 

in admitting the expert testimony. See United States v. Wilson, 

484 F.3d 267, 273 (4th Cir. 2007) (noting abuse of discretion 

standard).

4 While these circuits may have differed in their view of § 

924(j), they all agree on this point.
11

such a sentence is ‘imposed under’ subsection (c).”); United 

States v. Battle, 289 F.3d 661, 666 (10th Cir. 2002) (“The plain 

meaning of the words used in § 924(j) unequivocally provide that 

if the evidence shows a violation of § 924(c) . . ., a district 

court must impose a consecutive sentence over and above the 

punishment prescribed for the violent crime.”); United States v. 

Allen, 247 F.3d 741, 769 (8th Cir. 2001) (“Although § 924(j) 

does not explicitly contain the same express mandatory 

cumulative punishment language as found in § 924(c), it 

incorporates § 924(c) by reference without disclaiming the 

cumulative punishment scheme which is so clearly set out in § 

924(c).”), vacated on other grounds, 536 U.S. 953 (2002); see 

also United States v. Young, 561 F. App’x 85, 94 (2d Cir. 2014)

(holding that § 924(j) “incorporates the penalty enhancements of 

§ 924(c)”), cert. denied, 135 S. Ct. 387 (2014), and sub nom.

Chambliss v. United States, 135 S. Ct. 388 (2014).

Only the Eleventh Circuit has held to the contrary. United 

States v. Julian, 633 F.3d 1250, 1253 (11th Cir. 2011). Bran 

argues that we should follow Julian, which held that a district 

court has discretion to decide whether to impose a concurrent or 

consecutive sentence for a § 924(j) violation. Julian, 633 F.3d 

at 1253–56. We find the Eleventh Circuit’s reasoning 

unpersuasive.
12

When interpreting a statute, we apply its plain language, 

unless the result would be absurd. Lamie v. United States Tr.,

540 U.S. 526, 534 (2004). We also consider the specific context 

in which that language is used, and the broader context of the 

statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 

(1997). Here, the plain language of § 924(j) does not expressly 

answer the question of whether any term of imprisonment imposed 

thereunder must be consecutive. However, the language itself 

suggests that such a sentence must be consecutive, and to read § 

924(j) otherwise would create an absurd result.

Section 924(j)(1) reads: “A person who, in the course of a 

violation of subsection (c), causes the death of a person 

through the use of a firearm, shall – (1) if the killing is a 

murder . . . be punished by death5 or by imprisonment for any 

term of years or for life.” (emphasis added). At a minimum, the 

inclusion of the language “in the course of a violation of 

subsection (c)” indicates that § 924(c) plays a role in a § 

924(j) offense and, to understand that role, we must consider § 

924(j) in the context of § 924(c).

Section 924(c) sets out the elements required to violate 

that section. Additionally, § 924(c) sets out the nature of the 

 5 The government did not seek the death penalty in this 

case.
13

punishment thereunder; such punishment must be consecutive. 18 

U.S.C. § 924(c)(1)(D)(ii). No one, including Bran, contests 

those points. Viewed in this light, “[i]t takes no special 

insight or leap of logic to conclude that the central reason for 

Congress’s choice of language in writing [§ 924(j)] – ‘during 

the course of a violation of [§ 924(c)]’ – was to ensure that 

separating out subsection (j) from subsection (c) did not 

deprive the law of a coherent sentencing scheme, the heart of 

which is the consecutive sentence mandate.” Berrios, 676 F.3d at 

141.

Further, because of the inclusion of the § 924(c) language, 

to prove a violation of § 924(j), the government must prove that

a defendant also committed a violation of § 924(c). See United 

States v. Smith, 452 F.3d 323, 335–36 (4th Cir. 2006).

Accordingly, a defendant who violates § 924(j) by definition 

violates § 924(c), and would necessarily face a mandatory 

consecutive sentence under § 924(c) if it had been charged as a 

freestanding offense. Therefore, to read § 924(j) as not subject 

to the consecutive sentence mandate of § 924(c) would mean that 

a defendant convicted under § 924(j) would face a more lenient 

sentencing scheme – under which a defendant’s sentence would not 

have to be consecutive – simply because, in the course of 

violating § 924(c), he murdered someone. To read § 924(j) in 

this way would give rise to a truly absurd result with perverse 
14

incentives; a defendant facing life or a term of years could 

create a more favorable sentencing environment for himself by 

committing a murder during his commission of the § 924(c) 

offense. See Berrios, 676 F.3d at 141; Battle, 289 F.3d at 668; 

Allen, 247 F.3d at 769. It is “highly ‘unlikely that Congress, 

which clearly intended to impose additional cumulative 

punishments for using firearms during violent crimes in cases 

where no murder occurs, would turn around and not intend to 

impose cumulative punishments in cases where there are actual 

murder victims.’” Berrios, 676 F.3d at 141 (quoting Battle, 289 

F.3d at 668); see also Allen, 247 F.3d at 769.6

III

For the foregoing reasons, we affirm the judgments of 

conviction and sentence.

AFFIRMED

 6 Of course, Congress could legislate that a sentence 

imposed for a violation of § 924(j) need not be consecutive. 

However, in the absence of clear language or context, we should 

not presume they intended such an anomalous and absurd result. 

See Berrios, 676 F.3d at 141 (“In light of the statutory scheme 

and purpose shared by subsection (c) and subsection (j), we 

simply cannot impute a contradictory intent to Congress without 

some underlying rationale.”).
15

KING, Circuit Judge, dissenting in part:

Because the district court was entitled to sentence Bran on 

Count III to something other than a mandatory consecutive life 

sentence, I respectfully dissent. In affirming Bran’s sentence, 

my friends in the majority rely on the erroneous conclusion that 

18 U.S.C. § 924(c) requires a consecutive sentence on Bran’s 

§ 924(j) conviction. As explained below, nothing in either 

§ 924(c) or § 924(j) mandates such a ruling. I would therefore 

vacate Bran’s sentence on Count III and remand.

The relationship between § 924(c) and § 924(j) is not 

insignificant — each criminalizes a firearm offense occurring 

during the commission of a crime of violence or a drug 

trafficking offense. Notwithstanding those two shared elements, 

§ 924(j) has a third and independent element (conduct causing 

death). The penalty provisions of § 924(c) and § 924(j) are 

also distinct. Of importance in that regard, a sentence under 

§ 924(c) must run consecutively to any other sentence. See 18 

U.S.C. § 924(c)(1)(D)(ii) (the “consecutive sentence mandate”). 

The consecutive sentence mandate applies, however, to § 924(c) 

offenses only, as stated therein: “no term of imprisonment 

imposed on a person under this subsection shall run concurrently 

with any other term of imprisonment imposed on the person.” Id.

(emphasis added); see United States v. Julian, 633 F.3d 1250, 
16

1253 (11th Cir. 2011) (ruling that consecutive sentence mandate 

not applicable to § 924(j) offense). 

It is now undisputed that, on Count III, Bran was convicted 

of violating § 924(j), an offense resulting in death “in the 

course of” a § 924(c) violation. 18 U.S.C. § 924(j).1 The 

alternative punishments authorized by § 924(j) — death, life, or 

a term of years — do not refer to the consecutive sentence 

mandate. See id.2

 Because a § 924(j) offense occurs in the 

course of a § 924(c) violation, however, the majority rules that 

the consecutive sentence mandate must be applied to a § 924(j) 

 1 Prior to oral argument, Bran and the prosecution disagreed 

over whether Bran had been convicted of a § 924(c) offense or a 

§ 924(j) offense. That issue traced to the duplicitous 

indictment in this case, which alleged § 924(c) and § 924(j) 

offenses in a single count — Count III. In briefing, Bran 

challenged his Count III conviction on the ground that the jury 

had acquitted him of the § 924(j) offense and convicted him of 

violating § 924(c) only. At oral argument, Bran abandoned that 

position and agreed that he was convicted under § 924(j). 

2 Pursuant to § 924(j) of Title 18: 

A person who, in the course of a violation of 

subsection (c), causes the death of a person through 

the use of a firearm, shall —

(1) if the killing is a murder (as defined in [18 

U.S.C. §] 1111), be punished by death or by 

imprisonment for any term of years or for life.

(2) if the killing is manslaughter (as defined in 

[18 U.S.C. §] 1112), be punished as provided in that 

section.

18 U.S.C. § 924(j).
17

offense to avoid an “absurd result.” Ante at 12. The majority 

relates that a defendant convicted under § 924(j) would 

otherwise “face a more lenient sentencing scheme” than one 

convicted under § 924(c). Id. at 13. For reasons I view as 

compelling, I reject the majority’s ruling.

1.

First, a § 924(j) offense is discrete from a § 924(c) 

offense, and must be treated accordingly. As we recognized 

years ago, a § 924(j) offense is a separate violation of federal 

law. See United States v. Johnson (Shaheem), 219 F.3d 349 (4th 

Cir. 2000). Judge Luttig’s opinion for the Court in that case 

spelled out the elements of a § 924(j) offense: “(1) a drug

trafficking crime committed, (2) the use of a firearm during the 

commission of the trafficking crime, and (3) malice aforethought 

in causing the death of the victim in relation to the commission 

of the crime.” Id. at 358 n.7. Soon thereafter, in United 

States v. Robinson, Judge Wilkins’s opinion treated a § 924(j) 

violation in a like manner. See 275 F.3d 371, 379 (4th Cir. 

2001).

Nevertheless, the majority argues that its ruling today —

that the consecutive sentencing mandate applies to a § 924(j) 

offense — garners support from four of our sister circuits. 

Those decisions, however, analyzed the relationship between 

§ 924(c) and § 924(j) in a fundamentally different manner than 
18

does the majority. Two of those courts ruled that § 924(j) is a

sentencing factor only, and not a separate offense. See United 

States v. Battle, 289 F.2d 661, 667 (10th Cir. 2002) (“Section 

924(j) does not set forth a discrete crime.”); United States v. 

Allen, 247 F.3d 741, 769 (8th Cir. 2001) (concluding that 

“§ 924(j) is fairly interpreted as an additional aggravating 

punishment for the scheme already set out in § 924(c)”). Two 

other courts of appeals failed to definitively resolve the 

discrete offense issue. See United States v. Berrios, 676 F.3d 

118, 140 (3d Cir. 2012) (“Although the government concedes that 

§ 924(j) establishes a discrete crime from § 924(c), this has no 

bearing on our decision.”); see also United States v. Young, 561 

F. App’x 85, 94 (2d Cir. 2014) (unpublished) (observing that 

§ 924(j) “likely indicates that it is a stand-alone offense”), 

cert. denied, 135 S. Ct. 387 (2014).

My position in this regard is simple. I would apply the 

reasoning of the Eleventh Circuit in Julian, which is consistent 

with our decisions in Johnson (Shaheem) and Robinson. See 633 

F.3d at 1254. That is, § 924(j) constitutes a discrete offense 

from § 924(j), and thus can only be punished under § 924(j). 

2.

The foregoing discussion leads to my second point: Because 

§ 924(j) is a discrete offense from a § 924(c) violation, a 

sentence under § 924(j) does not produce an absurd result. And, 
19

absent an express statutory mandate to the contrary, a federal 

criminal offense does not require either a concurrent or a 

consecutive sentence. That decision with respect to sentencing

is reserved to the discretion of the district court. See 18 

U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed at the 

same time run concurrently unless the court orders or the 

statute mandates that the terms are to run consecutively.”); see 

also United States v. Johnson (Keith), 138 F.3d 115, 119 (4th 

Cir. 1998) (determining that § 3584(a) “gives district courts 

discretion in choosing concurrent or consecutive terms of 

imprisonment”). Nonetheless, the majority cites the Supreme 

Court as foreclosing application of the plain text of § 924(j). 

Ante at 12 (citing Lamie v. United States Trustee, 540 U.S. 526 

(2004)). In its Lamie decision, however, the Court carefully 

emphasized that “[i]t is well established that ‘when the 

statute’s language is plain, the sole function of the courts —

at least where the disposition required by the text is not 

absurd — is to enforce it according to its terms.’” Lamie, 540 

U.S. at 534 (quoting Hartford Underwriters Ins. Co. v. Union 

Planters Bank, N.A., 530 U.S. 1, 6 (2000)). Because § 924(j) 

does not require a particular disposition, we should simply 

enforce its plain terms. 

In any event, applying the plain terms of § 924(j) does not 

produce an absurd result. As the government conceded at oral 
20

argument, the potential availability of a death penalty is the 

reason a prosecutor would pursue a charge under § 924(j). See

Julian, 633 F.3d at 1256 (“The main point of section 924(j) is 

to extend the death penalty to second-degree murders that occur 

in the course of violations of section 924(c).”). To me, it 

defies common sense to contend that a death sentence for a 

§ 924(j) offense creates a more lenient sentencing scheme than a 

non-death sentence under § 924(c).3

 Similarly, I readily reject 

the majority’s contention that § 924(j) creates “perverse 

incentives” for an aspiring criminal. Ante at 13-14. To the 

contrary, a person contemplating commission of a § 924(c) 

offense is not likely to commit murder merely to avoid the 

consecutive sentence mandate.

On this record, we are obliged to presume that Congress 

properly assessed each of the foregoing considerations when it 

enacted § 924(j). See Russello v. United States, 464 U.S. 16, 

23 (1983) (“Where Congress includes particular language in one 

section of a statute but omits it in another section of the same 

Act, it is generally presumed that Congress acts intentionally 

and purposely in the disparate inclusion or exclusion.”) 

 3 I note that the death penalty is potentially available 

under § 924(c)(5) for causing death by use of armor piercing 

ammunition. See 18 U.S.C. § 924(c)(5)(B)(i). Bran, however, 

was not charged with any such offense. 
21

(brackets omitted). Rather than second-guess Congress and 

judicially amend § 924(j) to include the consecutive sentence 

mandate, I would simply rule that § 924(j) — rather than

§ 924(c) — controls Bran’s sentence for the § 924 offense in 

Count III. 

Pursuant to the foregoing, I would vacate Bran’s 

consecutive life sentence on Count III and remand. The 

sentencing court should be entitled to exercise its informed 

discretion, pursuant to 18 U.S.C. § 3584, to impose a sentence 

on Count III that is either consecutive or concurrent.

I respectfully dissent.