New York Federal Criminal Practice Blog
April 16, 2009

SDNY Judge Takes Exception to Stacking of Mandatory Minimums

Guest contributor David G. Abrams, Esq, writes:

What is another 14 years to a 27 year-old defendant facing a mandatory minimum of 50 years on two gun convictions?  Well, the difference between a life sentence and a near-life sentence for one thing.  And a point of honor worth appealing, for another, since he turned down a post-conviction “sentencing bargain” of 39 years in exchange for a waiver of his right to appeal.  In United States v. Ballard, 2009 WL 511112 (S.D.N.Y. March 2, 2009) – a case that epitomizes the inequities mandatory minimum statutes can create – SDNY Judge Rakoff delivers a particularly stinging rebuke of the government’s attempt to stack consecutive mandatory minimums sentences.  Refusing to be a party to “the unconscionable result” advocated by the government – a sentence of 64 years – he explains that “[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.”


In October and November of 2007, Zachary Ballard and Anthony Steele robbed several stores in the Bronx together.  While the victims were no doubt terrorized, no one was hurt or killed.  The two were charged with one count of conspiracy to commit the robberies, three counts for each robbery actually committed, and an additional three counts for brandishing firearms in the course of the robberies.  Steele entered into a plea deal involving no mandatory minimums; Ballard went to trial and was found guilty of all seven counts.  Steele got 14 years; Ballard got 50. 

While Judge Rakoff thought that a sentence of “about 32 years” would have been sufficient for Ballard, he determined he was bound by certain of the mandatory minimum provisions contained in 18 U.S.C. § 924(c).  The government, on the other hand, thought the 50-year sentence was inadequate.  It filed a Rule 35(a) motion based on the district court’s alleged “clear error” in interpreting § 924(c), seeking to “correct” Ballard’s sentence and tack on an additional 14 years.  This would have raised Ballard’s sentence to 64 years in prison, or 50 more years than Steele received for the same crimes.

Mandatory Minimums

Ballard was on the hook for multiple armed robberies – by all accounts a serious offense.  He was subject to a seven-year mandatory minimum under § 924(c)(1)(A) for the first time he used a gun, and an additional 25 years, each, for the two subsequent times under § 924(c)(1)(C), a provision that mandates 25 years for “a second or subsequent” § 924(c) conviction.  The other four counts (for the conspiracy and actual robberies) carried no mandatory minimums, but a guideline sentencing range of about 7 to 9 years.   The government argued that Ballard should receive a total of 57 years for the gun counts (7 + 25 + 25), plus another seven for the remaining four counts, combined.


Judge Rakoff reaffirmed his previous sentence – a single month for the conspiracy and robbery charges, and 50 years on two of the gun convictions (25 + 25).  Relying on the Second Circuit’s holding in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), and previewing the outcome of the Court’s decision in United States v. Williams, 2009 WL 563644 (2d Cir. March 5, 2009), Judge Rakoff “rejected the Government's attempt to cabin Whitley’s holding to cases involving defendants who are exposed to two mandatory minimum sentences for the same use of the same firearm, or, at least, for the same underlying transactions.”  Accordingly, he determined that “the seven-year mandatory minimum sentence required by subsection 924(c)(1)(A) did not apply to defendant, because a greater minimum sentence of 25 years was required under subsection 924(c)(1)(C).”  He concluded, however, that “[he] was required to impose two consecutive 25-year minimum sentences on defendant, because on its face subsection 924(c)(1)(A) only exempts a defendant from the application of the 5, 7, or 10 year mandatory minimums set forth in that subsection and does not speak to the question of consecutive sentences under subsection 924(c)(1)(C).”

JaneAnne Murray adds:

How does this ruling square with United States v. Chavez, 549 F.3d 119 (2d Cir. 2008), which held: “a sentencing court is required to determine the appropriate prison term for the count to which the § 924(c) punishment is to be consecutive; and if the court reduces the prison term imposed for that underlying count on the ground that the total sentence is, in the court’s view, too severe, the court conflates the two punishments and thwarts the will of Congress that the punishment imposed for violating § 924(c) be ‘addition[al]’ and ‘no[t] ... concurrent[ ].’”

Well, it doesn’t appear to.  But Judge Rakoff posits creatively that Chavez only involved one mandatory consecutive gun count, and “therefore, [in that case, the Court] had no occasion to consider whether, as exemplified by the “except clause,” Congress’s intent is more nuanced when multiple consecutive sentences are involved.” 

In other words, he was challenging the Second Circuit to take the same, justified exception that he does to the preposterous sentence apparently statutorily required for Mr. Ballard.

But the government hasn’t appealed.  Mr. Ballard has.  And since this case illustrates all that’s rotten about mandatory minimums – creating massive sentencing disparities, making a mockery of the right to trial, extending excessive discretion to prosecutors, and generating preposterously long sentences – we can only hope that the Second Circuit goes further than Judge Rakoff did, and authorizes on remand a sentence of one stint of 25 years, on the grounds (as effectively argued by defense counsel at sentencing) that Ballard’s offense is a single conspiracy and the multiple gun verdicts were therefore one “conviction” under § 924(c)(1)(C).

Lawyers:  Martin Geduldig (defendant); AUSA Benjamin Naftalis

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