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

Amended:

Decided:

January 22, 2015

January 23, 2015

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion.

opinion, in which Judge Agee
opinion dissenting in part.

Judge Shedd wrote the majority

joined.
Judge King wrote an

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.

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

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

racketeering

3);

(Count

conspiracy
4);

and

to

commit

maiming

in

murder
aid

of

in

aid

of

racketeering

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

Hernandez-Gonzalez.

Counts

and

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 Brans
2

involvement

with

the

Sailors

Set,

the

clique

was

criminal

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

leadership in El Salvador, witness tampering, violent physical
assaults
murder

including

of

the

attempted

Hernandez-Gonzalez

murder
and

of

Ayala

other

and

the

racketeering

activities.
Brans

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

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. OBrien, 560 U.S.
218,

221

(2010),

sentence,

Abbott

which
v.

must

United

run

consecutively

States,

562

U.S.

to
8,

any
23

other

(2010).

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

of

another

through

the

use

of

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:
procures

(a)
the

aids,

abets,

commission

counsels,
of

a
3

commands,

criminal

induces

offense;

or

or
(b)

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

Hernandez-Gonzalez.

Soto

Bran

and

gave

Cabello

Soto

and

successfully

Cabello

killed

firearm

to

commit the murder. Pursuant to Brans order, Arevalo, Soto, and

Cabello led Hernandez-Gonzalez to a path along the James River,
where they shot him four times using Arevalos 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

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

firearm

caused

further

instructed

discharge

the

death
the

jury

of
of

firearm;

and

(3)

Hernandez-Gonzalez.

that

Bran

could

be

that
The

the

court

convicted

on

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

Firearm

During

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

firearm

during

and

in

relation

to

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
Count

3,

answered

jury
the
in

returned
jury

guilty

returned

response

to

the

verdicts

general
special

on

all

verdict

counts.
of

interrogatory

As

to

guilty

and

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
5

relation to a crime of violence, the district court convened

counsel upon receipt of the verdict to discuss the implications
of the jurys 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 jurys 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

objection,

the

life

court

sentence

determined

for

Count

that

3.

Over

Brans

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, Brans main arguments on appeal relate to
Count

3.

Specifically,

insufficient

to

he

support

contends
a

that

conviction

the

jury

under

verdict
924(j)

is

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

sentence.

mandatory

consecutive

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

reasonable

finder

of

fact

could

accept

as

adequate and sufficient to support a conclusion of a defendants

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

bringing

sufficiency

challenge

must

overcome

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 prosecutions failure is clear, Burks, 437 U.S.
at 17.

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).

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).

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
Brans 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
Brans
instruction, this gun misfired, so they used Arevalos gun to
carry out Brans command to murder Hernandez-Gonzalez.

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, Brans argument ignores the jurys
general verdict

of

district

sufficiently

court

guilt

on

Count

3.

instructed

Without
the

objection,

jury

as

to

the
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 jurys general guilty verdict alone is sufficient
to uphold Brans 924(j) conviction, the jurys 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 jurys finding of caused a firearm to

be

discharged

necessarily

includes

finding

of

use

of

firearm. See Smith v. United States, 508 U.S. 223, 240 (1993)
(broadly defining use of a firearm for purposes of 924(c)).

For

the

foregoing

reasons,

we

affirm

Brans

Count

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 governments 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.

10

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

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

cumulative

punishment

language

as

found

incorporates

924(c)

by

reference

express
in

without

mandatory
924(c),

disclaiming

it
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. Appx 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

125356.

We

find

the

Eleventh

unpersuasive.

11

Circuits

reasoning

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

person

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

murder . . . be punished by death 5 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

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

The government did not seek the death penalty in this

case.

12

punishment thereunder; such punishment must be consecutive. 18

U.S.C.
those

924(c)(1)(D)(ii).

points.

Viewed

in

No

this

one,

including

light,

[i]t

Bran,

takes

contests

no

special

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

Congresss 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,

33536

(4th

Cir.

2006).

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

violates

924(c),

and

would

necessarily

face

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 defendants 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
13

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

create a more favorable sentencing environment for himself by
committing

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

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.).

14

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 Brans sentence,

my friends in the majority rely on the erroneous conclusion that

18 U.S.C. 924(c) requires a consecutive sentence on Brans
924(j)

conviction.

As

explained

below,

nothing

924(c) or 924(j) mandates such a ruling.

in

either

I would therefore

vacate Brans 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

trafficking offense.

of

crime

of

violence

or

drug

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,

15

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).

16

offense to avoid an absurd result.

relates

that

otherwise

face

defendant
a

more

convicted

lenient

convicted under 924(c).

Ante at 12.
under

sentencing

Id. at 13.

The majority

924(j)
scheme

would

than

one

For reasons I view as

compelling, I reject the majoritys ruling.

1.
First,
offense,

and

924(j)
must

be

offense

treated

is

discrete

accordingly.

from
As

we

924(c)

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 Luttigs 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 Wilkinss 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

17

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

924(j)

F.3d

is

741,

fairly

769

(8th

interpreted

Cir.
as

2001)

an

(concluding

additional

that

aggravating

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

Two

other

the

courts

of

appeals

discrete offense issue.

failed

to

definitively

resolve

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. Appx 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.
F.3d at 1254.

See 633

That is, 924(j) constitutes a discrete offense

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

2.
The foregoing discussion leads to my second point:
924(j)

is

discrete

offense

from

924(c)

Because

violation,

sentence under 924(j) does not produce an absurd result.

18

And,

absent an express statutory mandate to the contrary, a federal

criminal

offense

does

consecutive sentence.

not

require

either

concurrent

or

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

imprisonment).

concurrent

Nonetheless,

the

or

consecutive

majority

cites

terms

the

of

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)).
emphasized

In its Lamie decision, however, the Court carefully

that

[i]t

is

well

established

that

when

the

statutes language is plain, the sole function of the courts

at

least

where

the

disposition

required

by

the

text

absurd is to enforce it according to its terms.

is

not

Lamie, 540

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

Planters Bank, N.A., 530 U.S. 1, 6 (2000)).
does

not

require

particular

disposition,

Because 924(j)
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

19

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).).
defies

common

sense

to

contend

that

death

To me, it

sentence

for

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

non-death sentence under 924(c). 3
the

majoritys

contention

that

Similarly, I readily reject

924(j)

incentives for an aspiring criminal.

contrary,
offense

is

person
not

contemplating

likely

to

commit

creates

perverse

Ante at 13-14.

commission
murder

of

merely

to

To the
924(c)

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.)

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.

20

(brackets

omitted).

Rather

than

second-guess

Congress

and

judicially amend 924(j) to include the consecutive sentence

mandate,

would

simply

rule

that

924(j)

rather

than

924(c) controls Brans sentence for the 924 offense in

Count III.
Pursuant
consecutive

to
life

the

foregoing,

sentence

on

Count

would
III

and

vacate
remand.

Brans
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.

21