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Proper Unit of Prosecution under § 924(c) Is the Underlying Predicate Offense

United States v. Diaz, __ F.3d__, 2010 WL 143684 (3d Cir. Jan. 15, 2010). Nelson Diaz was convicted by a jury of two counts of possession of a firearm in furtherance of drug trafficking,in violation of 18 U.S.C. § 924(c) and a single count of possession with intent to distribute heroin. The District Court sentenced Diaz to a term of 480 months imprisonment - the sum of consecutive sentences of 120 months for each firearm count and 240 months for possession with intent to distribute heroin. Nelson appealed, arguing that his convictions and consecutive sentences for the two firearm charges based on a single predicate offense violated the Double Jeopardy Clause.

The Third Circuit agreed. Consistent with nine other Courts of Appeals, the Circuit held that the proper "unit of prosecution" under the statute is the underlying predicate offense – in this case the drug distribution count – rather than the possession of a firearm. The Court recognized that two other Circuits have taken the opposite view, that the unit of prosecution is the firearm possession (or use), and that the language of the statute and legislative history could be interpreted to support both sides. For these reasons, the Court looked to the rule of lenity in reaching its decision, finding "without hesitation that ‘[a]fter ‘seiz[ing] everything from which aid can be derived’ we are ‘left with an ambiguous statute,’" and adding, "[a]pplication of the rule of lenity is particularly appropriate in the context of § 924(c) because of its mandatory consecutive sentences and extremely harsh penalties for subsequent convictions."

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