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1114. Double Jeopardy Challenge when 18 U.S.C. §§ 2119 and 924(c) Are Charged

While in the early stages of the carjacking statute several district courts ruled that both 18 U.S.C. § 2119 and § 924(c) counts could not be used in the same indictment, the decision of every circuit which has addressed the issue has permitted the use of both provisions. See, e.g., United States v. Overstreet, 40 F.3d 1090 (10th Cir. 1994);United States v. Jones, 34 F.3d 596, 602 (8th Cir. 1994); United States v.Johnson, 32 F.3d 82, 85-86 (4th Cir. 1994); United States v. Mohammed, 27 F.3d 815, 820-821 (2d Cir. 1994); United States v. Johnson, 22 F.3d 106, 108 (6th Cir. 1994); United States v. Singleton, 16 F.3d 1419, 1425 (5th Cir. 1994). Hence, Federal prosecutors should, in their sound discretion, seek indictments for both charges when a firearm is present during the commission of a carjacking. Because § 924(c) carries a significant higher mandatory penalty for subsequent offenses, the use of several counts of § 924(c), when multiple counts of carjacking are being prosecuted, may be appropriate to guarantee that an extremely dangerous violent offender is incarcerated for a long period of time.

The legislative history of § 924(c) clearly shows that "Congress intended [that § 924(c)] would serve as cumulative punitive punishment in addition to that provided for the underlying violent crime." See United States v. Holloway, 905 F.2d 893 (5th Cir. 1990). Congress viewed § 924(c) as "an offense distinct from the underlying felony and... not simply a penalty provision. Hence the sentence provided... is in addition to that for the underlying felony." S. Rep. No. 225, 98th Cong., 2d Sess. 313 (1983), reprinted in 1984 U.S. Cong. and Adm. News 3182, 3490. The 1984 revision was intended to "ensure that all persons who commit Federal crimes of violence, ... receive a mandatory sentence, without the possibility of the sentence being made to run concurrent with that for the underlying offense..." Id. at 3491. Section 924(c)(1) of Title 18 expressly authorizes the imposition of an additional sentence "in addition to the punishment provided for such crimes of violence" that serve as the predicate offense. Numerous cases have affirmed that § 924(c) was intended to impose cumulative punishment for underlying crimes of violence or drug trafficking crimes. See, e.g., United States v. Martin, 961 F.2d 161, 163-64 (11th Cir. 1992); Holloway, supra, 905 F.2d at 895. The 1984 amendment to § 924(c) made clear the statute's applicability to the previously ambiguous scenario of a Federal crime that already provided for an enhanced penalty when a dangerous weapon was used. United States v. Martin, supra, 961 F.2d at 163.

It is clear from the plain language of § 924(c) that it was intended to apply in conjunction with a crime such as carjacking. Furthermore, Congress, had it been its intent, could have made clear, when enacting §  2119, that § 924(c) was not to play a role in a prosecution for carjacking.

[cited in USAM 9-60.1000]

Updated June 10, 2015