Page:Lora v. United States.pdf/9

Rh “(B) if death results from the use of such ammunition—

“(i) if the killing is murder (as defined in section 1111), be punished by death or sentenced to a term of imprisonment for any term of years or for life; and

“(ii) if the killing is manslaughter (as defined in section 1112), be punished as provided in section 1112.” (Emphasis added.) According to the Government, §924(c)(5) adds two penalties together when death results: Someone convicted of murder resulting from the use of such ammunition faces a 15-year mandatory minimum sentence under §924(c)(5)(A) plus an additional sentence for murder under §924(c)(5)(B)(i). Tr. of Oral Arg. 27, 31.

But subsection (j) is cast from a different mold. Section 924(c)(5) groups the two penalties together and joins them with the word “and.” In contrast, several unrelated subsections separate subsections (c) and (j) structurally, and nothing joins their penalties textually. So even if those features of §924(c)(5) make it operate as the Government contends, those aspects of §924(c)(5) are missing from subsection (j).

In the Government’s own telling, then, §924(c)(5) shows how Congress could have constructed penalties that might ultimately add together. Yet Congress did not implement that design in subsection (j).

Equally unavailing is the Government’s invocation of double jeopardy principles. According to the Government’s brief, “Section 924(j) amounts to the ‘same offense’ as Section 924(c) for purposes of the Double Jeopardy Clause,” so “a defendant may be punished for either a Section 924(c) offense or a Section 924(j) offense, but not both.” Brief for United States 22–26 (emphasis added; alterations and some internal quotation marks omitted). The Government argues that this conception of double jeopardy confirms subsection (j) incorporates all of subsection (c). Ibid.