Double Jeopardy Challenge when 18 U.S.C. §§
and 924(c) Are Charged
While in the early stages of the carjacking statute several
courts ruled that both 18 U.S.C. § 2119 and § 924(c) counts
used in the same indictment, the decision of every circuit which has
the issue has permitted the use of both provisions. See, e.g.,
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,
F.3d 82, 85-86 (4th Cir. 1994); United States v. Mohammed, 27 F.3d
820-821 (2d Cir. 1994); United States v. Johnson, 22 F.3d 106, 108
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
a carjacking. Because § 924(c) carries a significant higher mandatory
penalty for subsequent offenses, the use of several counts of § 924(c),
multiple counts of carjacking are being prosecuted, may be appropriate to
guarantee that an extremely dangerous violent offender is incarcerated for a
period of time.|
The legislative history of § 924(c) clearly shows that
intended [that § 924(c)] would serve as cumulative punitive punishment
addition to that provided for the underlying violent crime." See
United States v. Holloway, 905 F.2d 893 (5th Cir. 1990). Congress
§ 924(c) as "an offense distinct from the underlying felony and... not
a penalty provision. Hence the sentence provided... is in addition to that
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
was intended to "ensure that all persons who commit Federal crimes of
... receive a mandatory sentence, without the possibility of the sentence
made to run concurrent with that for the underlying offense..." Id.
3491. Section 924(c)(1) of Title 18 expressly authorizes the imposition of
additional sentence "in addition to the punishment provided for such crimes
violence" that serve as the predicate offense. Numerous cases have affirmed
§ 924(c) was intended to impose cumulative punishment for underlying
of violence or drug trafficking crimes. See, e.g., United States
Martin, 961 F.2d 161, 163-64 (11th Cir. 1992); Holloway,
905 F.2d at 895. The 1984 amendment to § 924(c) made clear the
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.
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
[cited in USAM 9-60.1000]