Busic v. United States, 446 U.S. 398 (1980)

Busic v. United States

No. 78-6020

Argued February 27, 1980
Decided May 19, 1980 *
446 U.S. 398

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Upon their joint trial in Federal District Court, petitioners were convicted of, inter alia, armed assault on federal officers -- petitioner LaRocca as the actual triggerman and petitioner Busic as an aider and abettor, and thus derivatively a principal under 18 U.S.C. § 2 -- in violation of 18 U.S.C. § 111, which makes it unlawful to assault a federal officer and which provides for enhanced punishment when the assaulter "uses" a deadly weapon. In addition, LaRocca was convicted of using, and Busic of carrying, a firearm in the commission of the armed assault, in violation of 18 U.S.C. § 924(c), which authorizes the imposition of enhanced penalties on a defendant who "uses" (§ 924 (c)(1)) or "carries" (§ 924(c)(2)) a firearm while committing a federal felony. Each petitioner’s sentence included 5 years on possession of firearms and the assault charges, and 20 years for the § 924(c) violations. The Court of Appeals ultimately held that, while LaRocca’s sentence could not be enhanced under both § 111 and § 924(c)(1) for "using" a firearm, he could be sentenced under either at the Government’s election, but that, since the § 924(c) charge against Busic alleged not that he "used" a firearm, but rather that he "carried" one, his sentence was valid.

Held: Section 924(c) may not be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. The sentence received by such a defendant may be enhanced only under the enhancement provision in the statute defining the felony he committed. Pp. 403-411.

(a) This result is supported not only by Simpson v. United States, 435 U.S. 6, but also by the legislative history of § 924(c) and the canons of statutory construction that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, and that a more specific statute (18 U.S.C. § 111 here) will be given precedence over a more general one (§ 924(c)), even if, as here, the general provision was enacted later. To the extent that this construction may lead to irrational sentencing patterns in which some less severe crimes are punished more than other more severe crimes, it is the Congress, not this Court, that must take corrective action. Pp. 403-410.

(b) his holding not only makes it clear that petitioner LaRocca may not be sentenced under § 924(c)(1) for using his gun to assault federal officers, but also applies to petitioner Busic’s case. Nor can Busic’s sentence be sustained by arguing that a person who carries a gun in the commission of a § 111 violation may be sentenced under § 924(c)(2) because the enhancement provision of § 111 does not apply to those who carry but do not use their weapons. The fact is that Busic is being punished for using a weapon. Through the combination of § 111 and 18 U.S.C. § 2, he was found guilty as a principal of using a firearm to assault federal agents. Pp. 410-411.

587 F.2d 577, reversed and remanded.

BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 412. STEWART, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 413. REHNQUIST, J., filed a dissenting opinion, post, p. 417.