William H. Rehnquist: We'll hear argument now in Number 95-1605, United States v. Miguel Gonzalez. Mr. Estrada.
Miguel A. Estrada: Thank you, Mr. Chief Justice, and may it please the Court: Section 924(c)(1) of title 18 provides for mandatory jail sentences for persons who use or carry a firearm during the commission of certain offenses. The Tenth Circuit in this case held that a sentence imposed under section 924(c) by a Federal district court may be made to run concurrently with a State sentence that the defendant is already serving. In our view, that is wrong for three reasons. First and foremost, the language of the statute expressly forbids the imposition of a concurrent sentence. Second, we think the court of appeals was wrong to imply a presumption that that prohibition refers solely to previously imposed Federal sentences, and finally, we think the Tenth Circuit was wrong to rely on a passage from the 1984 Senate committee report that accompanied the 1984 amendments to section 924(c).
Sandra Day O'Connor: Mr. Estrada, do you take the position that section 924(c) requires the separate sentence given for that violation to run before any other sentence, or could it be required after any other sentence? Just, what the statute refers to is running sentences concurrently, so is it okay to order its service after the expiration of a State court penalty?
Miguel A. Estrada: Yes, Justice O'Connor, but let me back up. Under the sentencing statutes that we have, how the sentence is administered is usually up to the Bureau of Prisons.
Sandra Day O'Connor: And you don't take the position that it has to always be first?
Miguel A. Estrada: No, and in many circumstances it will not be able to be first.
Anthony M. Kennedy: Right. Okay.
Miguel A. Estrada: In this case, for example, in order to give effect to both the statutory authority to make the drug sentences concurrent with the State terms and to the statutory mandate that the 924 sentence be consecutive, the Bureau of Prisons would have to run the Federal drug sentence first, concurrent with the State sentence, and to run the 924(c) sentence last, consecutive to both State and Federal sentences. There was an assumption in the court of appeals view that that would not be so because it gave what we think was inordinate weight to its view of the Senate committee report, but that is, in fact, an error. As a matter of the administration of the sentence, under section 3584(c), I believe, the Bureau of Prisons would treat the entire term imposed by the Federal court as a single administrative term that has several parts, and the part that would correspond to the Federal drug sentences in this case would be ordered... would be served concurrently with the existing State sentences. The part that corresponds to section 924(c), as required by the plain language of the statute, would be made consecutive both to Federal sentences and to the State sentences that are already being served.
Anthony M. Kennedy: Do the States have to go along with that? I suppose this can get very complicated as to which is first. In the... Number 1, can the Bureau of Prisons tell the States when their sentence is going to run in relation to the Federal sentence?
Miguel A. Estrada: No.
Anthony M. Kennedy: Or is there some control on that discretion?
Miguel A. Estrada: The State sentence is independent. Section 924(c), like all Federal sentencing statutes, in our view speaks solely to a Federal question, how a Federal court imposing a Federal sentence for a Federal crime, may order the calculation of the Federal sentence.
Anthony M. Kennedy: My question was, does the Bureau of Prisons have discretion to say in a particular case to the State, we're going to allow all the Federal sentences to run first, and then you can do whatever you want, or, we're going to require that part of our sentence be served, then part of your sentence served, then the remaining part of ours, or can... is there... does... is there some supremacy principle where the Federal Government can direct this if the States object?
Miguel A. Estrada: Not in those terms, Justice Kennedy. There is a case from this Court, Punsey v. Fessendon, which is at 258 U.S. 254, which encompasses a principle of primary jurisdiction, which is that each of the two sovereigns, State and Federal, may lend someone to the other Government so he may be tried, yet choose not to relinquish him for the service of the other sovereign sentence until they choose to, but under the statutes that we have, we would not take the view that we can break up a term of imprisonment and to tell the States how to do anything.
Antonin Scalia: Mr. Estrada, I can agree with your... with the Government's position that the statute as written does not compel the States to make their sentences nonconcurrent, but why is it not the case that, after you've had the Federal sentence imposed and then a State sentence is imposed and the State says, well, we're not bound by this Federal statute, we will have this run concurrently with the Federal sentence, why does not the Federal sentence at that point become in violation of the statute, because it is now a sentence that is being served concurrently with another sentence.
Miguel A. Estrada: That view might have some weight, Justice Scalia, if all there were to this statute would be the single clause, nor shall any sentence be made. In context, it seems clear to us that the statute speaks to the duty of the Federal sentencing court at the time it imposed the sentences to impose a sentence based on the facts then existing, as is true with Federal sentencing statutes generally. Therefore, given that the Federal court complied with that duty at the time it imposed sentence, any subsequent court that is not bound by that duty would be in no breach and, as a result, it would not be any violation of the statute. Quite simply, if you take the language of the statute that says, notwithstanding any other provision of law the court shall not suspend the sentence or do any of these other things that a sentencing court would do, or, nor shall the sentence be made concurrent, in that context the natural reading is that the statute speaks to the duties of the Federal sentencing court as sentencing statutes usually do at the time sentence is imposed.
David H. Souter: Then everything's going to turn on whose sentence is first. That's right.
Miguel A. Estrada: Excuse me, Justice--
David H. Souter: Then everything... then the result is simply going to turn on whose sentence is first. If they do a State sentence first, then, in effect, you get the policy carried out when the Federal sentencing follows it. If the Feds sentence first, in effect the State can negate the policy by saying everything we impose is going to run concurrent, including the premium, yes.
Miguel A. Estrada: --There are two answers to that question, Justice Souter. The first one is that the policy of the statute is that the sentence that is imposed under section 924(c) be made consecutive to any other sentence that the defendant might be serving. It is always the case, where a sentence is made consecutive to another sentence, that any number of circumstances, for example, might change the first sentence. All that Congress can do is to say this is what the Federal court may make the sentence at the time of sentencing, and until and unless Congress chooses to go forward and to say that this is a national policy, not of instruction to the Federal courts about how to do their business, but of instruction also to the State courts about how to do theirs, the statute simply doesn't speak to the question.
Antonin Scalia: So I guess you would say that the State could... let's... it imposes its sentence first. The Federal sentence comes up second, and the sentencing judge says, well, this cannot run concurrent, so it will be consecutive, and then he goes back to the State court and says, in light of, you know, what the Feds have done, please make my State sentence run concurrent with the Federal sentence, and the State says, that's fine.
Miguel A. Estrada: If that is--
Antonin Scalia: So the State could in effect frustrate this by--
Miguel A. Estrada: --If that is a course that is allowed by State law--
Antonin Scalia: --By State law it would be all right.
Miguel A. Estrada: --that is absolutely true, Justice Scalia, and the same would be true if he went back to the Governor of the State and told them, I have received an unduly long sentence, would you please exercise your discretion under State law to make my State sentence go away, and to thereby remove the predicate for the consecutive sentence in the Federal court. I'm not saying that that would effectuate the Federal policy to the fullest possible extent that one might take such a policy, but under the terms of this statute as written, it would, because the policy, as we have explained, is one that speaks to the actions of the Federal sentencing court when imposing sentence, and it is that court--
John Paul Stevens: Mr. Estrada, that's certainly a reasonable interpretation, but it's not what the statute says. Do you think... you say that's a literal reading, or are you just making a very sensible construction of the statute?
Miguel A. Estrada: --Oh, I think both, Justice Stevens.
John Paul Stevens: Because it says... it's a flat prohibition, as Justice Scalia pointed out.
Miguel A. Estrada: Well, as I indicated to Justice Scalia, Justice Stevens, it is our view, and we think it's right--
John Paul Stevens: That it should be read that way.
Miguel A. Estrada: --No. It is our view that, as the Court has always stated, the clarity of the language turns on context, and if all we had to go to... through were a Federal statute that says, anyone who has been sentenced for a firearms charge shall never have a concurrent sentence, and there was nothing else to the statute, that might give rise to the issue of whether that binds the State courts as well. In the context of a statute that first defines a crime and then makes a direction to the court not to suspend the sentence or to impose a concurrent sentence--
Antonin Scalia: It doesn't say that. If it said, nor shall a concurrent sentence be imposed... it uses... almost goes out of its way to use different language. It says, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment, and so as soon as the State decides later to have a concurrent State sentence, this term, the term imposed under this section, will begin to run concurrently with the State sentence. I mean, literally, it--
Miguel A. Estrada: --I have two answers to your question, Justice Scalia. The first one is that I agree with your reading in isolation. As I pointed out, that reading would ignore what comes earlier in the statute, which gives context to what the subject for who may not impose may be. The second answer is that, as we--
John Paul Stevens: --Before you go to the second, and I want you to get there, what is it earlier in the statute that's inconsistent with that sentence? That's what I didn't quite follow.
Miguel A. Estrada: --Well, there are two things, Justice Stevens. In the first place, it is a definition of a Federal offense, which is something that normally gives rise to Federal sentencings, and second is--
John Paul Stevens: Yes, but that doesn't cut any ice, because this last sentence clearly contemplates, not concurrent with State or Federal sentences.
Miguel A. Estrada: --Well, that's right as an instructions to the Federal court as to what they may order.
John Paul Stevens: Right.
Miguel A. Estrada: It doesn't really speak to the State courts as to what--
John Paul Stevens: Well, and then the first part of the sentence it says, we're just talking about a sentence for Federal crimes. That doesn't undermine the literal reading of the last sentence.
Miguel A. Estrada: --No, but the... let me make two further points.
John Paul Stevens: You have another point, I know, yes.
Miguel A. Estrada: Well, there was a second part to my first point--
Antonin Scalia: He keeps thinking of more as we-- [Laughter] Yes.
Miguel A. Estrada: --Excuse me, Justice Scalia, I'm sorry.
Antonin Scalia: Well, you-- --I say, you keep thinking of more points as-- --No, he had a second point based on the language of the statute--
Miguel A. Estrada: Yes.
Antonin Scalia: --that preceded it.
Miguel A. Estrada: And I was getting to that--
Antonin Scalia: Yes.
Miguel A. Estrada: --which is that the language that Justice Scalia read in isolation, which we concede would bear that reading, doesn't really have a subject, and it is part of a sentence that starts with, the court shall not, and in our view in that context it is most reasonable to read the court as the Federal court, as the subject that--
Stephen G. Breyer: I mean, and--
Miguel A. Estrada: --is implicit in the clause that uses the passive voice.
Stephen G. Breyer: --I mean, anyway, most sentencing statutes are phrased in the passive voice or refer to the defendant. They don't say, the judge shall do this.
Miguel A. Estrada: Well, that's right, and most sentence--
Stephen G. Breyer: And so I take it your point is, like all other sentencing statutes this is meant to talk about the obligation of the judge.
Miguel A. Estrada: --Of the general court, that is correct.
Stephen G. Breyer: But this one is phrased that way. But that cuts the other way because the first part of the sentence talks about what the court may do-- --In the active voice. --and then the second part is broader. Just one at a time. Yes... right. Give him a chance.
Miguel A. Estrada: Thank you, Mr. Chief Justice. [Laughter] I think I've made my first point, which is in essence that you have to infer a subject for the clause in the passive voice and that, given that the very same sentence starts with a clause in the active voice the more reasonable reading, even if it would bear another, is that the subject is that of the Federal court. I would like to have a--
Antonin Scalia: What principle says that you must infer a subject for a sentence in the passive voice?
Miguel A. Estrada: --Well--
Antonin Scalia: Is that a principle of grammar, or something? If it's in the passive voice it simply means the term of imprisonment imposed shall not run concurrently.
Miguel A. Estrada: --Well--
Antonin Scalia: You don't need a subject for it.
Miguel A. Estrada: --This case... excuse me. This Court has had cases in which similar grammatical difficulties have been present, Justice Scalia. In the Wilson case, I think, which is cited in our brief and which also deals with how Federal sentences are administered, the Court had before it a statute that also was written in the passive voice and the question then was, does this give a right or a duty to the sentencing court or to the BOP, and the Court went into the context of the statute and to some extent into the history to conclude that it did not give any rights or duties to the sentencing courts, but it confided the duties to be carried out under the statute to the Bureau of Prisons alone, and I think that that's not an unusual act of statutory interpretation. I don't want to let go of the second point--
John Paul Stevens: You still have the second point. The first point, you're assuming that the words, the term of imprisonment, are not the subject, aren't you?
Miguel A. Estrada: --Yes. Well, yes.
John Paul Stevens: Yes.
Miguel A. Estrada: I mean, you can put it that way, but I think--
John Paul Stevens: Some grammarians might disagree.
Miguel A. Estrada: --Well, and I think... and I really will concede, Justice Stevens, that if all I had were an independent freestanding sentence that began with the term of imprisonment, this might raise a different question. To just touch upon our... or, our second point is that to the extent the language would bear another reading, and to the extent that you might read the language in isolation as speaking to the duties of State courts imposing sentences under State law, there is a section that is also part of the Gun Control Act, section 927, which is quoted in our brief, in our reply brief in one of the footnotes, which indicates that it was not... in footnote 7 at page 10... which indicates that it was not, in fact, Congress' intention to occupy the field of sentencing for these offenses, and that they did not intend to divest the State courts of the authority that they would ordinarily have.
Antonin Scalia: It seems to me that your argument here is really being generous to the defendant. Even if you conceded the point that Justice Stevens and I have been pressing, you would not have to concede the point that therefore the statute does... therefore the statute does not take into account State sentences. All you would have to concede is that the Federal... or that the statute controls State courts. All you would have to concede is that the statute continues to control only Federal sentencing, but when the Federal sentencing has been made by a State courts action to run concurrently with the State sentence, the Federal sentence must be altered to be... you know, to run sequentially, or, in other words, the sentence that's imposed has to be conditional.
Miguel A. Estrada: I agree that it is not a necessary component of our case that we show the premise of the question to be wrong, Justice Scalia. I think in a spirit of candor we can tell you that we have never read the statute in that way, and we have no intention of applying it that way.
Ruth Bader Ginsburg: Mr. Estrada, do you know of any Federal criminal sentencing statute that controls State courts without saying so? To affect the State's criminal process one would expect Congress at least to speak with a clear voice that it is attempting to control what the State does.
Miguel A. Estrada: I think that you are right, Justice Ginsburg, in that to the extent Congress ever tries to control the processes of State courts applying State law and tell them what to do, that fairly interesting and maybe difficult federalism issues would come up that may call that as one of the principles. One of the interesting facets of this case is that there is a general statute that governs whether Federal courts may impose sentences that are concurrent or consecutive, section 3584, which is quoted both in our opening brief and in our reply brief. In our reply brief I believe the pertinent part is quoted at page 4, footnote 2. That is the general residual Federal statute that deals with the question whether a Federal court may impose a concurrent sentence or a consecutive sentence, and the statute that respondents urge should be applied to them here. Now, the interesting thing about that statute is that even though it authorizes a concurrent term of imprisonment, it doesn't speak to State terms of imprisonment at all, so that if one were to take the rule of construction being urged for here, the logical consequence would be that there is no statutory authority for the imposition of a concurrent term of imprisonment.
Sandra Day O'Connor: Mr. Estrada, can I clarify one thing about this case? What was the State prosecution for? It wasn't brought under 18 U.S. Code 924 (c).
Miguel A. Estrada: No, it was not. It was a State offense, I believe, of assault.
Sandra Day O'Connor: And the State had already imposed a sentence for that crime?
Miguel A. Estrada: Yes, they had.
Sandra Day O'Connor: Before the Federal court--
Miguel A. Estrada: That's correct.
Sandra Day O'Connor: --tried the defendant for this.
Miguel A. Estrada: That's correct.
Sandra Day O'Connor: It had already occurred--
Miguel A. Estrada: By the time--
Sandra Day O'Connor: --and in fact all the Federal Court of Appeals decisions dealing with this situation as I understand it have involved sentences by State courts that had already been imposed before the succeeding Federal prosecution under 924(c).
Miguel A. Estrada: --I think that is right, and that would be the usual area in which our reading of--
Sandra Day O'Connor: Yes, and so you're saying, in that circumstance, which was also the circumstance here, that the Federal court is governed in its sentencing and must make it run at least consecutively--
Miguel A. Estrada: --That is right.
Sandra Day O'Connor: --to the State sentence.
Miguel A. Estrada: Our view is that the statute tells a Federal district court imposing sentence for a Federal offense--
Sandra Day O'Connor: Yes.
Miguel A. Estrada: --that it should make this sentence consecutive to--
Sandra Day O'Connor: Yes.
Miguel A. Estrada: --whatever else there is.
Sandra Day O'Connor: Yes. I guess on that the hardest point is that the State sentence involved an additional year actually served as a mandatory additional year under State law for the very possession of the firearm that is also the subject of the extra 5 years under Federal law, and I suppose that, if you apply the extra 5 years under Federal law into Federal cases, that will never arise. It would never happen that the extra 5 years would be imposed consecutively to an additional sentence that had as its base solely the possession of that very gun--
Miguel A. Estrada: It would not--
Stephen G. Breyer: --but it could happen in this case under State law.
Miguel A. Estrada: --It would not happen under the guidelines.
Stephen G. Breyer: Oh, I know... under a statute, how could it happen, because the only provision that poses an extra 5 years mandatory for possession of a gun during a crime of violence is this very statute, isn't it?
Miguel A. Estrada: Well, no. Let me give you an example. For example, the armed bank robbery statute, 18 U.S.C. 2113, 2113(a), if I recall, defines the crime of bank robbery. 2513(d) imposes an additional authorized sentence of 5 years under the bank robbery statute for a bank robbery that is carried out with a weapon.
Stephen G. Breyer: So you think that this statute means when a person is accused of that crime through violence... let's say it's an armed bank robbery with a gun... he gets 10 extra years for the gun?
Miguel A. Estrada: Justice Breyer, the issue that you just posed was one of the questions that the Court had before it in the Busic case. The Court in that case took the view that I gather you would instinctively take of how that case should turn out. In 1984 Congress turned around and said no, we didn't mean that, and overruled in effect for future cases the outcome in Busic and as a result of that change the statute now reads that the mandatory 5-year sentence may apply to any offense, including one that has an enhancement for a firearm.
Stephen G. Breyer: Including the firearm. Not may, but must, you mean?
Miguel A. Estrada: Mm-hmm. That is right, and it's very plain from the legislative history that accompanied the 1984 amendments that Congress was unhappy with the outcome in Busic and changed the statute just to make that possible.
Stephen G. Breyer: Thank you.
Miguel A. Estrada: And the relevant language that does that is at the top of page 2 in our brief, where Congress added a parenthetical that reads, including a crime of violence or drug trafficking crimes which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device.
Stephen G. Breyer: I didn't understand that that included the extra gun enhancement part, but it does. I see what you're saying.
Miguel A. Estrada: It does, and that was one of the issues that the Court had before it in the Busic and Simpson cases.
David H. Souter: Mr. Estrada, you answered some of the questions from Justice Scalia or Justice Stevens about the scope of the nor shall clause by saying it occurs in a sentence which is addressed to Federal sentences, and that provides the context. Why should we confine our contextual reference to sentences? Why don't we approach this case with a... sort of a section-based contextualism, and the principle address of the section, I suppose, is to Federal sentencing and the relationships of Federal sentences, so if we're going to look at context, why don't we look at it more broadly than you would and find that a reason not to apply the any sentence reference to State sentences?
Miguel A. Estrada: You see, I think, Justice Souter, that I do not disagree with your statement up to the very last clause, which is that it is true that this is a statute that applies only to Federal sentencings, but one of the things it does is to instruct a Federal court as to how the sentence should be imposed and, by extension, the Federal Bureau of Prisons as to how the sentence should be administered, and it is to them that the instruction goes, this sentence shall not start before that other sentence has been concluded. It doesn't act on a State court, and it doesn't act on a State sentence. It merely takes--
David H. Souter: No, but your--
Miguel A. Estrada: --takes that as a point of reference for Federal officials discharging their duties under Federal law.
David H. Souter: --Oh, I grant you that, but I thought your answer to the question about the nor shall clause was not that it could not be addressed or effectively be enforced against a State court. That's a separate issue. We'll leave that aside. Your answer was in the context we can infer that it's not being addressed, and don't we have sort of no more or less ambiguity when we get to the reference to any sentence being served?
Miguel A. Estrada: Oh, I see. No, for two reasons. The first one is that the first sentence of this very statute uses the expansive language, any crime, and goes on expressly to qualify it by reference to only crimes that are Federal crimes and when the same expansive language, any crime or offense or sentence is used in the first sentence of the statute and does not so--
David H. Souter: Yes, that gives that--
Miguel A. Estrada: --restrict it, there is a fair inference that Congress did not mean the qualifications then. The second answer to that is the answer that I started to give to Justice Ginsburg concerning section 3584, which is a residual statute that governs concurrency and consecutivity, and it does not itself make reference to State sentences either. As a historical matter, before the statute was passed in section 19... in 1984, the rule in the Federal courts was that a Federal sentence could not be concurrent with a State sentence, and the legislative history of section 3584 makes clear that one of the things that section... that the residual statute meant to do with unqualified reference to terms of imprisonment that don't mention State law was to allow Federal courts, when otherwise appropriate, to impose a sentence that would be concurrent to a State term.
David H. Souter: --Well, I think your answer is a fair answer, but I guess I have one follow-up question to it, and that is, if there is any question about whether your answer is sort of dispositive, isn't it fair to look to the point that was brought out earlier, and that is that on your theory there's sort of a game of chance going on, because if the... in this case, for example, if the State sentence had not been imposed first, the result would be different here, and rather than allow this statute to be administered in a way that is going to turn it into a game of chance, which sentence... depending on which sentencer gets there first, why isn't it more reasonable to interpret it the way the respondents claim?
Miguel A. Estrada: Because I think as an empirical matter it will be the case in most of the cases that Congress may have contemplated that the sentences imposed later will correspond to later-occurring crimes, and it's not necessary to think that they crafted the entire sentencing structure of the Federal courts to fit the facts of a dual successive prosecution. But even apart from that, I think that the implicit assumption in the premise is that a statute that requires a consecutive sentence purports to speak to what may happen in the future, and I think that is not empirically founded.
Antonin Scalia: Mr. Estrada, is... before you... is consecutivity a word?
Miguel A. Estrada: I have seen it... I don't know, Justice Scalia, and as a nonnative speaker of the language, I feel hesitant-- [Laughter] --to give the Court advice on these sorts of matters. I can tell you that I have seen it in the reported cases dealing with the issue, and I will leave it at that, and if I could save the remainder of my time for rebuttal, Mr. Chief Justice.
William H. Rehnquist: Very well, Mr. Estrada. Mr. Bustamante. Am I pronouncing your last name correctly?
Edward O. Bustamante: Bustamante.
William H. Rehnquist: Bustamante. Thank you.
Edward O. Bustamante: Mr. Chief Justice, and may it please the Court: This Court should affirm the Tenth Circuit, because the Government ignores proper methods of statutory construction in this case, and they base their entire argument in this case on the false premise that the any used in 924(c)(1) is capable of only one meaning. That term actually has multiple definitional possibilities, and where there are multiple definitional possibilities, this Court... any practitioner should examine the entire text of the statute and place the word in context with this entire statutory scheme.
William H. Rehnquist: Mr. Bustamante, the Tenth Circuit in its opinion relied on the case of the Church of Holy Trinity v. The United States, which to me has always meant we're going to legislate a little. It means that you can't really get the meaning you want out of the statute. Do you think the court of appeals went that far here, or do you think its interpretation is absolutely defensible just as the statute is written?
Edward O. Bustamante: Your Honor, I believe... Mr. Chief Justice, I believe that if the Court examines 924(c)(1) and the language of 924(c)(1) and then looks at the history of 924(c)(1). I think it becomes clear that 924(c)(1) only applies to Federal sentences.
Antonin Scalia: Mr. Bustamante, what is your response to Mr. Estrada's point about 3584(a)? I mean, I understand that your only concern is your client, but if we agree with you in this case with regard to defendants in general we would be doing them more harm than good, because if this provision doesn't apply to State sentences, I don't see how you can distinguish 3584(a), which also would not apply to State sentences, which would mean that a Federal court could not make a Federal sentence concurrent with a State sentence.
Edward O. Bustamante: Justice Scalia, I believe the difference, and I think it's a consistent interpretation, is that if the Court looks at the legislative history of 3584--
Antonin Scalia: Oh, you just lost me. Do you have anything about the text that would distinguish the two?
Edward O. Bustamante: --Not about the text. Your Honor, but I believe that if the Court... I think it's clear from 3584 that a court has discretion under that statute to run sentences concurrently or consecutively, and I think the difference between 3584, other than the legislative history, Your Honor, is that 924(c)(1) does something very different, which is, it takes absolute discretion away from a court, which is a major change, Your Honor, in the history of sentencing. Throughout history, Federal courts, State courts have been given great discretion in running... deciding whether sentences shall run concurrently or consecutively.
Antonin Scalia: But the Government would not take that discretion away from State courts.
Edward O. Bustamante: That's true, Your Honor, but it did take it away from a Federal court, which is a significant matter.
Stephen G. Breyer: What's the odd result? The court of appeals said that if you took concurrently to mean concurrently, it would produce an odd result.
Edward O. Bustamante: Justice Breyer, I believe the odd result in this specific case, and again this case does have unusual facts, because it was a consecutive prosecution, is that because the State sentence occurred first and the Federal sentence occurred second, what in fact occurred in this case is that the... what the Government seeks is a doubling of the sentence based on the same conduct.
Stephen G. Breyer: It's true of the Federal, too. If... I mean, you could split the Federal trial, too.
Edward O. Bustamante: Your Honor, I believe it's true--
Stephen G. Breyer: I mean, I thought the odd result was what I said before, and he explained no, that's not an odd result, the same thing's true federally, and so I'm sort of stuck now. So I asked you, what's the odd result?
Edward O. Bustamante: --Your Honor, I believe... it's not that it's an odd result, Your Honor. It's that the Government is saying that it's a compelled result, and what the problem is, Your Honor, is that the Government is encouraging practitioners to basically play table tennis between Federal court and State courts. They give... and I don't believe the Government can have it both ways, Your Honor. They state in their opening briefs... brief fairly boastfully that this does not run concurrently to any sentence. In their reply brief, they state--
Antonin Scalia: Excuse me, that this does not... I didn't under--
Edward O. Bustamante: --They state in their opening briefs, Your Honor, that this shall not run concurrent to any sentence.
Antonin Scalia: --Shall not run concurrent to any sentence.
Edward O. Bustamante: That's correct, and they do not specify whether it's Federal or State. In their reply brief they make a concession that it was... it would be okay for a State court to run their sentence concurrent to the Federal sentence, so I think they're--
William H. Rehnquist: But that really is quite consistent with the Government's oral presentation here, that the section speaks to Federal sentencing judges and Federal proceedings. It doesn't purport to speak to State court judges.
Edward O. Bustamante: --That's correct, Your Honor. I believe the Government concedes this applies to Federal courts, concedes it applies to Federal sentences, concedes it applies to Federal offenses, but they're very--
Stephen G. Breyer: That doesn't... isn't odd particularly, because all kinds of things can depend on that, whether... if you're... you know, if the State court convicts somebody first, then they have a conviction on the record. When they have a conviction on the record their sentence is bumped up because of the guidelines, and if that trial hasn't take place yet, it isn't. I mean, lots of things turn on timing. Now, is that--
Edward O. Bustamante: --That's true, Your Honor, a lot of things do turn on time, but with the Government's concessions, and if you place their example in reality, Your Honor, is that what could occur is you have the State prosecution first, then a Federal prosecution, then it's fairly easy for the lawyer in the State's court then to go back, after the Federal prosecution to then ask for a reduced sentence or a--
Stephen G. Breyer: --Fine.
Edward O. Bustamante: --sentence concurrent.
Stephen G. Breyer: Fine. So what's wrong? I mean--
Edward O. Bustamante: Well, Your Honor, I don't believe that--
Ruth Bader Ginsburg: --Isn't that what you could do here? Isn't that your remedy, then? As you say, Mr. Estrada has said this is a rule of sentencing for Federal judges only, and he recognized that if the order had come up with the State court second the State court could do what it will.
Edward O. Bustamante: --Your Honor, that is a possible remedy. However, I don't think that criminal culpability or sentencing statutes were set out to allow a game of chance, which is--
Antonin Scalia: Well, another way to eliminate all the chance, and the Government generously has not asserted this, but it would be quite possible to interpret this to speak only of the Federal courts, but to allow the Federal... to require the Federal sentences to be made consecutive whenever a State court says that the State sentence shall run concurrently. And I guess you could have games being played back and forth, and the State court revises its sentence and the Federal court revises its sentence, but you could eliminate all of that inconsistency by simply saying if a State court after the Federal sentence imposes a concurrent State sentence, the Federal sentence, pursuant to the precise language of this, the term of imprisonment imposed shall not run concurrently with that State sentence, so it thereupon becomes consecutive.
Edward O. Bustamante: --Justice Scalia, I--
Antonin Scalia: You wouldn't want that.
Edward O. Bustamante: --I wouldn't want that. But Justice Scalia, I think the problem is, is that if the court were to read that into the legislation, then I think in effect it would be allowing this statute, which is not very clear, just have no clear statement to preempt state law. In the case of a Federal prosecution that occurred first and a State prosecution occurring second, clearly the State sovereign should have the authority if it seems proper to run their sentence concurrent to the Federal sentencing--
Ruth Bader Ginsburg: But it doesn't preempt State law, because you just, I think, recognized that you could go back to State court and say, based on something that happened after, and based on the way the Government, U.S. Government reads this statute, the ball ends up in your court, State, and your law isn't being preempted. You favor concurrency, so reduce the sentence.
Edward O. Bustamante: --I believe Justice Scalia's premise was that if the statute was read at the Federal court, that no sentence would run concurrent to the Federal sentence if it occurred first, and I think that would be a preemption, because the State court would not be allowed to run their sentence--
Ruth Bader Ginsburg: But that's not the position that Mr. Estrada says that the Government... that's not how the Government is reading this Federal statute, so maybe you're... you've come to the wrong court for the remedy you're seeking.
Edward O. Bustamante: --Your Honor, we've come to this Court for the remedy we're seeking because it's the Government's goal in this case to ensure that... one of several things. To ensure that the 924(c) gun count runs consecutive to the State sentence, but also I believe, Your Honor, they seek to also violate 3584(a), Your Honor, which states that a sentence, when someone goes in and starts serving a Federal sentence, that sentence shall be considered one aggregate sentence. Your Honor, what could occur in this case and in cases in the future is that... in this case, Your Honor, the sentencing judge did run the underlying offense concurrent to the State sentence. What could occur in this case and other cases, Your Honor, is that you would in fact have the Federal sentence beginning, then the sentence would stop while the State sentence would continue, and then at some point, indeterminate point in the future the Federal 924(c)(1) gun count would begin, and I think that's one of the major problems with the Government's interpretation of--
William H. Rehnquist: Where do we find 3584(a), which you... that's the one you just referred to, I believe.
Edward O. Bustamante: --Yes, Justice--
William H. Rehnquist: Where is that set out?
Edward O. Bustamante: --Excuse me... Chief Justice.
William H. Rehnquist: Where is that set out?
Edward O. Bustamante: And I believe that is in the--
Antonin Scalia: Page 4 of the Government's reply brief, footnote 2. Thank you.
Edward O. Bustamante: --I believe the last sentence to that statute states that when a prisoner begins to serve a Federal sentence it shall be considered one aggregate sentence, and what could result in this case and future cases is that there would be a gap, a Federal gap in sentences, and I do not believe that is what Congress intended in 3584 or 924(c)(1), especially when you consider the committee report of 924(c)(1), which states, members of the Court, that in their opinion they are... it is their intent that the 924(c)(1) gun count begin first, and I think if the Court looks at that, that's the only practical way to apply 924(c)(1). 924(c)(1) clearly was enacted to take all discretion away from a court. A court... a person convicted of a 924(c)(1) sentence must do prison time. That does not affect the court's discretion at all as to the underlying offense, so it's really impractical--
William H. Rehnquist: 38... 3584(a), which you're... says a sentence may be made to run either concurrently or consecutively, and then 924(c) says that in certain circumstances it shall not be made to run concurrently, so you can construe those sections consistently, can you not?
Edward O. Bustamante: --You can consider them consistently, Your Honor, if a Federal sentencing judge is given discretion to run a... this sentence concurrent to a State sentence.
William H. Rehnquist: But one rule says... and I take it 3854, whatever the 30 one is, is a general principle of sentencing. It can run either concurrently or consecutively. Then you have a far more specific one in section 924. It says, shall not run concurrently. I don't see how there's necessarily any inconsistency between those.
Edward O. Bustamante: There's no inconsistency if it is only applied to Federal sentences. Clearly, if someone is in Federal court--
John Paul Stevens: May I just be sure I understand one of your points? Do you think 3584(a) applies only to Federal sentences also?
Edward O. Bustamante: --No, Your Honor. I believe 3584, from its legislative history and from the text of the statute, allows a Federal judge to run his sentence either concurrently or consecutively to a State sentence. But I would premise that, Your Honor, by stating that in order for the judge to do that he must first apply a guideline analysis, and if the guidelines state that this sentence shall run concurrent, then the court may consider doing that, and either do an upward or downward departure, depending on what he feels appropriate. If the guideline states that it shall be consecutive, then again the court can do an upward or downward departure depending on what he feels is appropriate. In this case, Your Honor, the problem is, is that there was no guideline analysis that could be done as to this particular sentence.
Ruth Bader Ginsburg: How does that differ from 3146(b)(2), in... the bail-jumping statute says shall be consecutive.
Edward O. Bustamante: Your Honor, I believe in that instance the person... I believe probably the guideline would be consistent with that, and the guideline would say that if you commit an offense while... a pending offense while you are awaiting sentencing occurs, then it shall be consecutive, so I think the guideline analysis and the--
Ruth Bader Ginsburg: But if the guideline didn't take that position it wouldn't matter, because the statute says shall be consecutive. The guideline couldn't take a position inconsistent with the statute.
Edward O. Bustamante: --The two could not be inconsistent, Your Honor. However, it would be up to the court to always and first try to harmonize the guideline with the statute, and I think in that instance the guideline and the statute would probably be synonymous.
Stephen G. Breyer: Could you go back, please, to the Chief Justice's question, because I didn't understand either what the inconsistency is supposed to be if we assume that both statutes apply to the State. I mean, assume that 9... that... I thought the question was, if 3584(a) applies both to State and Federal sentences, which I agree with you, I think it does, and then if the section before us also applies to both State and Federal, as the Government but not you argues, I thought you were saying that that would produce an inconsistency, but I didn't understand the inconsistency so I thought I'd ask you so you could explain.
Edward O. Bustamante: I believe what I'm saying, what... I hope what I'm saying is that 3584 clearly from its legislative history can allow the court under a guideline analysis to run a sentence either consecutive or concurrent to a State sentence. 924(c)(1) is a much more specific statute, and that analysis, if there's a guideline analysis at all, only requires a Federal sentencing judge to run that sentence consecutive to a Federal sentence.
Antonin Scalia: Well, the fact that it's much more specific is what is hurting you here, because I think you may be right that there is an incompatibility between 3584(a) and the section at issue here. 3584(a) says that the terms may run concurrently or consecutively, and 924(c) says that they may not run concurrently, that they must run consecutively.
Edward O. Bustamante: Your Honor--
Antonin Scalia: So there is an inconsistency but, as you say, the more specific statute is 924(c)--
Edward O. Bustamante: --Your Honor, I--
Antonin Scalia: --and the rule is you apply the more specific one, don't you?
Edward O. Bustamante: --Justice Scalia, I believe that the way the two statutes are distinguished is that 924(c)(1), when it says shall not run concurrent, I believe is only applied to the Federal sentence, the underlying Federal sentence for which the gun enhancement is imposed.
Antonin Scalia: No, I understand that, but it doesn't seem to me that you can argue that this must apply only to Federal sentences and not to State sentences somehow on the basis that there would otherwise be inconsistency between those two. There's... and in fact, there's going to be inconsistency whether you apply it Federal or State, isn't there? I mean, that's a xx--
Edward O. Bustamante: Yes, I believe, Justice Scalia, 19... 924(c)(1) and 1994... 84 was amended. I think it was amended in direct response. Your Honor, to The United States v. Busic and United States v. Simpson, and in truth, Your Honor, there was a time when I feared the language of 924(c)(1). I don't any more, because if you look at the legislative history and if you look at the Congress' direct response to the Busic and Simpson cases, I think it's clear that statute was amended only to correct what they felt were improper decisions by the Court in Busic and in Simpson. Your Honor, section 1 of 924(c)(1) deals with what kind of cases shall be prosecuted under this section. Section 2 deals... states they be crimes that are prosecuted in Federal court. Section 3 states how the crime is committed. Section 4 states that notwithstanding any other provision of law, the court may not prorate the sentence, which really states that you have no discretion to suspend this enhanced sentence, and section 5, Your Honor, I think is the section that nails the coffin into Busic and Simpson and says that nor shall this run concurrent with any other sentence, and I think what they're referring to is that they do not want the court to run the gun enhancement concurrent to the underlying offense at that time.
Antonin Scalia: --Section 5... I... what's the section 5 you're referring to?
Edward O. Bustamante: I'm referring, Your Honor, to the last part of 924(c)(1).
Antonin Scalia: Okay, Sentence 5. I thought you said section 5.
Edward O. Bustamante: Yes. It's... sentence 5, which states, nor shall--
Antonin Scalia: Gotcha.
Edward O. Bustamante: --this run concurrent with any other sentence, Your Honor. I think what they're saying in nailing the coffin in Busic and Simpson is that a Federal judge may not run that sentence concurrent even though he has to impose a prison sentence, nor shall he impose that concurrent to the underlying Federal offense. I think that, Your Honor, clearly lays out why this only applies to Federal sentences. Your Honor, I think other sections of the Comprehensive Control... Comprehensive Crime Control Act confirm that 924(c)(1) only applies to Federal sentences. The Congress also referred to State and Federal laws in 3564(b) and 3624(e). In both those sections, Your Honor, they were contemplating that Federal probation and Federal supervised release could run concurrent to a State sentence, so they are contemplating that State and Federal sentences shall run concurrently, and they are contemplating that these sections are possible they run concurrently, Your Honor. I think that is highly significant, because it goes to Congress' overall sentencing scheme. Your Honor, I believe that the problem with the Government's argument is that they attach a layman's definition to the term, any. They ask for an expansive interpretation of the term, any other. In fact, they have argued the exact opposite in the past. In the Government's reply brief they refer to United States v. Alvarez... the United States v. Alvarez-Sanchez, and in that case the defendant-respondent was seeking a more expansive term of the term, any. The Government... the court, at the Government's urging, asked the court to apply proper methods of statutory construction and to not allow the term, any to have an all-expansive interpretation, and the court in fact did imply... apply proper methods of construction and stated that the term, any in 18 U.S.C. 3501 only applied to Federal law authorities. Your Honor, I think there's other compelling reasons for the Court to reject the Government's argument in this case as erroneous, and the States, Your Honor, in enforcing criminal conduct clearly have primary authority. I think they should also have primary responsibility in prosecuting persons in their State in enforcing local criminal conduct. I think the Government's interpretation in this case directly affects the delicate balance between Federal and States, and absent a clear statement from the Congress, I've asked the Court to reject the Government's argument and not allow the 924(c)(1) or Federal authorities to interfere with the State's authority to enforce local criminal conduct. I think there's two ways, Your Honor--
Sandra Day O'Connor: Well, I don't really see how it does affect State law under the Government's argument. Indeed, I suppose there are many situations where there's a Federal offense, not 924 involved, but some Federal offense, and some State court... some State law will mandate that any State sentence for a State offense based on similar conduct has to run consecutively, or not concurrently. I mean, you could have it in reverse, and I don't see that these schemes prohibit that, these Federal laws. We face that often, don't we?
Edward O. Bustamante: --Your Honor, I--
Sandra Day O'Connor: So that a State itself might be in the position of, look, your Federal requirements are what they are, but we're going to make our sentence anyway not serve concurrently with the Federal.
Edward O. Bustamante: --That's correct, Your Honor. The State would have the authority, if they so chose, to run their sentence consecutive to the Federal prosecution.
Sandra Day O'Connor: And the Federal Government says, and vice versa, the Federal Government, the Congress can pass a law making some particular sentence for a particular Federal crime not serve concurrently, and their argument is that Congress has done here, so it seems to me just the opposite side of the same coin.
Edward O. Bustamante: Your Honor, I believe Congress clearly has the authority and power to tell a State your sentence shall not run concurrent--
Sandra Day O'Connor: No, no. Maybe you misunderstood my question. I wasn't proposing that the Federal Government was here telling the State what to do. They're not, and that's not the Government's position.
Edward O. Bustamante: --Your Honor, I believe that was their position in their opening brief. They have changed that position in their reply brief.
Sandra Day O'Connor: Well, it certainly isn't their position as I've heard it explained today.
Edward O. Bustamante: That's correct, Your Honor. However, I believe that clearly the State has the authority to run their sentence consecutive, but they should also have the authority to run their sentence concurrent, whatever the order--
Sandra Day O'Connor: I heard Mr. Estrada say the State could do that.
Edward O. Bustamante: --Your Honor, he has stated that, Your Honor, but I think that does point to the ambiguousness of the statute, and I think it points out to the problems in the application of the statute.
Sandra Day O'Connor: It's not ambiguous if you say it only applies... 924(c) applies to sentences imposed by Federal courts. That's not ambiguous, is it?
Edward O. Bustamante: I think it's ambiguous, Your Honor, first in how you apply first 924(c)(1), in which order it should go in, Your Honor, and how it affects the State sentence. Your Honor, there is a guideline in this case that does possibly affect the State sentence and possibly affect the Federal sentence, Your Honor, and that is 5G1.3.
Sandra Day O'Connor: The Government isn't here saying that these statutes affect the State sentence. It's saying it affects the Federal court sentence.
Edward O. Bustamante: That's correct, Your Honor. They are stating that the Federal Government does not affect the State sentence in any way. However, I think, Your Honor, that in the application of the Federal sentence it must by necessity affect the State sentence, Your Honor, and I state that because if you go with the committee report that the 924(c)(1) must be applied first, Your Honor, then--
Sandra Day O'Connor: You mean that one sentence in some committee report?
Edward O. Bustamante: --Well, Your Honor, it's not only the one sentence--
Sandra Day O'Connor: I... this Court has never felt that it was bound by that kind of a--
Edward O. Bustamante: --That's correct, Your Honor.
Sandra Day O'Connor: --little snippet from a legislative committee report.
Edward O. Bustamante: Your Honor, I believe it's not just that one snippet. I think there are... the Eleventh and Sixth Circuit have followed that order, and I think that's the only practical way to apply 924(c)(1), and the problem, Your Honor, is that if 924(c)(1) is applied to run consecutively to a State sentence, then, Your Honor, then the underlying offense must also run consecutive, and you're back to the point where you've doubled this person's custodial time.
Sandra Day O'Connor: Why? I didn't think 924(c) applied to anything but the offense described in 924.
Edward O. Bustamante: Your Honor, it applies... if a person has committed an underlying offense and then has a 924(c)(1) sentence, those sentences must both be mandated to that defendant.
Stephen G. Breyer: So in this circumstance we'd simply have to say, look, that committee report doesn't govern this circumstance, that the judge is perfectly free to let the rest of the sentence run concurrently with the State, but he isn't free to let this part run with the State because this part says it's supposed to run consecutively with any preceding sentence. Would that work?
Edward O. Bustamante: That's true, Your Honor, if the court... but if 924(c)(1) is to be applied practically, then I think that what would happen, you'd have to have a prison time for 924(c)(1), and then for the remaining underlying offense the court still would have discretion to grant a downward departure to probation. It would be impossible--
Stephen G. Breyer: Well, just run it... if he doesn't want to, say run the 920... run the substantive Federal crime other than the 924(c) consecutively with the State crime. Do that, and then when they're finished that, run this 5 years. That would seem... I mean, I'm looking for a flaw in that. That would seem to solve the problem that you raised.
Edward O. Bustamante: --Your Honor, I think the flaw is, Your Honor, is that clearly 924(c)(1) does require a prison sentence. Any other underlying offense may or may not require a prison sentence. It would be impossible, or at least impractical for a court to grant someone supervised release and they serve that sentence and then 4 years later they begin a 924(c)(1) sentence. The court would not do that. What the court--
Stephen G. Breyer: The supervised release would have to take... they'd have to split the supervised release from the first part, that's true.
Edward O. Bustamante: --That's correct. That's correct.
Stephen G. Breyer: But I guess you could do that. Why couldn't you... would that require a departure? I'm not sure.
Edward O. Bustamante: I think it would require some kind of downward departure for the underlying offense, Your Honor, but I can't imagine a court giving someone supervised release, they serve a supervised release for 4 years--
Stephen G. Breyer: No, no, I agree with that, absolutely. What you'd have to do is the other stuff comes first, consecutively, then the 5 years, then supervised release insofar as it's appropriate.
Edward O. Bustamante: --That's correct.
Stephen G. Breyer: But I think that would work. I can't think of anything that stands in the way of that, off-hand.
Edward O. Bustamante: I guess, Your Honor, I guess the concern is... my time is up.
William H. Rehnquist: Thank you, Mr. Bustamante. Mr. Estrada, you have a minute remaining.
Miguel A. Estrada: Thank you, Mr. Chief Justice. Unless the Court has questions, we have nothing further.
William H. Rehnquist: The case is submitted.