The opinion of the court was delivered by: Honorable Ronald S.W. Lew
ORDER RE: ALTERNATIVE SENTENCING OPTIONS
On August 18, 2009, Defendant Johnson's Motion to Preclude Punishment Related Questions or, in the alternative, Motion in Support of Request for Appropriate Punishment Related Voir Dire, Attorney Questioning, and Individual, Sequestered Voir Dire on Certain Topics (CR 761) came on for regular calendar before this Court. Plaintiff, United States of America, appeared through its counsel of record, Assistant United States Attorneys Elizabeth Yang and Karen Meyer. Defendant Johnson appeared with his counsel of record, Amy Jacks and Richard Lasting. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:
The Court, pursuant to the arguments presented on August 18, 2009 and in the underlying papers, finds that there are three sentencing options in the present case.
When a statute allows the jury to exercise sentencing powers, due process requires that a jury must be informed of all available sentencing options. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980).
In United States v. Jones, 132 F.3d 232, 246 (5th Cir. 1998), the defendant argued that the district court erred because it informed the jury that three sentencing options were available, when in fact only two existed. Jones, 132 F.3d at 246. In that case, the judge instructed the jury that under the Federal Death Penalty provision, 18 U.S.C. § 3593, they could sentence the defendant to life, death, or a term of years. However, the substantive statute under which the defendant was charged only allowed for a sentence of life or death. Id. The Fifth Circuit found that the district court erred by instructing the jury based on §3593, rather than the underlying substantive criminal statute. Id. at 246-47. The Court found that the FDPA functions like a sentencing enhancement provision that does not affect the penalties available under the substantive criminal statute. Id.*fn1
Defendants are charged in Count Three under 18 U.S.C. § 924(j) which states:
A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall (1) if the killing is a murder (as defined in section 1111 [18 USCS § 1111]), be punished by death or by imprisonment for any term of years or for life...
18 U.S.C. § 924(j). (emphasis added).
18 U.S.C. § 924(c)(1) provides:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime--
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of ...