On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Crim. Action No. 90-00238-26).
Before: Becker, Stapleton and Lay,*fn* Circuit Judges
STAPLETON, Circuit Judge:
In September of 1991, Errol Roy Jones was convicted of carrying and using a firearm while possessing cocaine with the intent to distribute. He was sentenced to 60 months incarceration under 18 U.S.C. § 924(c)(1). Simultaneously, he was convicted of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and sentenced to 21 months imprisonment to run consecutively to the 60 month term. Thereafter, in February of 1992, Jones was sentenced in this case on a variety of drug offenses to 168 months imprisonment, five years supervised release and a $100 special assessment. The district court ordered that this term of imprisonment would run concurrently with both of Jones's earlier sentences. This cross-appeal by the government*fn1 poses a single issue: Did this order prescribing concurrent sentences conflict with 18 U.S.C.
§ 924(c)(1), which provides in part:
Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.
The general rule regarding the imposition of concurrent or consecutive terms is that the choice is committed to the discretion of the sentencing court. Section 3584 of Title 18 so provides. We think it clear that this general rule entitled the district court in this case to run its sentence concurrently with the prior 21 month sentence under 21 U.S.C. § 841. The more difficult issue for decision is whether the exception to the general rule carved out by § 924(c)(1) is broad enough to preclude the district court from mandating that its sentence would run concurrently with the prior 60 month sentence under that section.
The government argues that the plain language of the statute dictates a result different from that reached by the district court; if a "term of imprisonment imposed under
[§ 924(c)(1) shall not] run concurrently with any other term of imprisonment," the sentencing Judge in this case violated the statute by providing that Jones can simultaneously serve his sentence under that section and the subsequently imposed sentence. If one understands "the court" being addressed in
§ 924(c)(1) to be any court imposing a sentence at any time, we agree that the government's Conclusion is the required one. But there is another way to read § 924(c)(1), and we are persuaded that this alternative reading is the one Congress intended. Moreover, even if we were not so persuaded, we would agree with the district court that the statute is at least ambiguous and that application of the rule of lenity counsels against the government's interpretation.
If one understands "the court" being addressed in
§ 924(c)(1) to be solely the court imposing a ...