[House Report 105-344]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-344
_______________________________________________________________________


 
  TO PROVIDE FOR INCREASED MANDATORY MINIMUM SENTENCES FOR CRIMINALS 
              POSSESSING FIREARMS, AND FOR OTHER PURPOSES

                                _______
                                

October 24, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 424]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 424) to provide for increased mandatory minimum sentences 
for criminals possessing firearms, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     4
Hearings.........................................................     6
Committee Consideration..........................................     6
Vote of the Committee............................................     6
Committee Oversight Findings.....................................     9
Committee on Government Reform and Oversight Findings............     9
New Budget Authority and Tax Expenditures........................     9
Congressional Budget Office Estimate.............................     9
Constitutional Authority Statement...............................    11
Section-by-Section Analysis and Discussion.......................    11
Agency Views.....................................................    13
Changes in Existing Law Made by the Bill, as Reported............    16
Dissenting Views.................................................    19

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. MANDATORY PRISON TERMS FOR POSSESSING, BRANDISHING, OR 
                    DISCHARGING A FIREARM OR DESTRUCTIVE DEVICE DURING 
                    A FEDERAL CRIME THAT IS A CRIME OF VIOLENCE OR A 
                    DRUG TRAFFICKING CRIME.

    Section 924(c) of title 18, United States Code, is amended--
          (1) by redesignating paragraphs (2) and (3) as paragraphs (5) 
        and (6), respectively; and
          (2) by striking paragraph (1) and inserting the following:
    ``(1) A person who, during and in relation to any crime of violence 
or drug trafficking crime (including a crime of violence or drug 
trafficking crime which 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--
          ``(A) possesses a firearm in furtherance of the crime, shall, 
        in addition to the sentence imposed for the crime of violence 
        or drug trafficking crime, be sentenced to imprisonment for 10 
        years;
          ``(B) brandishes a firearm, shall, in addition to the 
        sentence imposed for the crime of violence or drug trafficking 
        crime, be sentenced to imprisonment for 15 years; or
          ``(C) discharges a firearm, shall, in addition to the 
        sentence imposed for the crime of violence or drug trafficking 
        crime, be sentenced to imprisonment for 20 years;
except that if the firearm is a machinegun or destructive device or is 
equipped with a firearm silencer or firearm muffler, such additional 
sentence shall be imprisonment for 30 years.
    ``(2) In the case of the second or subsequent conviction of a 
person under this subsection--
          ``(A) if the conviction is for possession of a firearm as 
        described in paragraph (1), the person shall, in addition to 
        the sentence imposed for the crime of violence or drug 
        trafficking crime involved, be sentenced to imprisonment for 
        not less than 20 years;
          ``(B) if the conviction is for brandishing a firearm as 
        described in paragraph (1), the person shall, in addition to 
        the sentence imposed for the crime of violence or drug 
        trafficking crime involved, be sentenced to imprisonment for 
        not less than 25 years; or
          ``(C) if the conviction is for discharging a firearm as 
        described in paragraph (1), the person shall, in addition to 
        the sentence imposed for the crime of violence or drug 
        trafficking crime involved, be sentenced to imprisonment for 
        not less than 30 years;
except that if the firearm is a machinegun or destructive device or is 
equipped with a firearm silencer or firearm muffler, the person shall, 
in addition to the sentence imposed for the crime of violence or drug 
trafficking crime involved, be sentenced to life imprisonment.
    ``(3) Notwithstanding any other provision of law, the court shall 
not impose a probationary sentence on any person convicted of a 
violation of this subsection, nor shall a 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.
    ``(4) For purposes of this subsection, the term `brandish' means, 
with respect to a firearm, to display all or part of the firearm so as 
to intimidate or threaten, regardless of whether the firearm is 
visible.''.

                          Purpose and Summary

    H.R. 424, introduced by Representative Sue Myrick (R-NC), 
would amend Sec. 924(c) of title 18, United States Code. It 
provides for an increased mandatory penalty for any person who 
possesses, brandishes or discharges a firearm during and in 
relation to the commission of a federal crime of violence or 
drug trafficking crime.
    Currently, Sec. 924(c) provides for a mandatory additional 
term of imprisonment for any person who ``uses or carries'' a 
firearm during and in relation to the commission of a federal 
crime of violence or drug trafficking crime. The term ``federal 
crime of violence'' is defined in Sec. 924(c)(3) of title 18, 
United States Code.\1\ The term ``drug trafficking crime'' is 
defined in Sec. 924(c)(2) of title 18, United States Code.\2\ 
Current law provides for a five-year prison sentence for a 
first offense, in addition to any time received for the 
underlying offense, unless the firearm is a short-arreled 
rifle, short-barreled shotgun or semiautomatic assault weapon, 
in which case the term of imprisonment is ten years for a first 
offense. If the firearm is a machinegun,\3\ or a destructive 
device,\4\ or is equipped with a firearm silencer or firearm 
muffler,\5\ then the person shall receive an additional thirty 
years imprisonment for a first offense. For a second or 
subsequent offense under current law, the offender is subject 
to an additional twenty years, and if the firearm is a machine 
gun, destructive device or is equipped with a firearm silencer 
or firearm muffler, to life imprisonment without release.
---------------------------------------------------------------------------
    \1\ Section 924(c)(3) of title 18, United States Code, defines a 
``crime of violence'' as ``an offense that is a felony and--(A) has as 
an element the use, attempted use, or threatened use of physical force 
against the person or property of another, or (B) that by its nature, 
involves a substantial risk that physical force against the person or 
property of another may be used in the course of committing the 
offense.''
    \2\ Section 924(c)(2) of title 18, United States Code, defines the 
term ``drug trafficking crime'' as ``any felony punishable under the 
Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled 
Substances Import and Export Act (21 U.S.C. 951 et seq.), or Maritime 
Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).''
    \3\ See 18 U.S.C. Sec. 921(a)(23).
    \4\ See 18 U.S.C. Sec. 921(a)(4).
    \5\ See 18 U.S.C. Sec. 921(a)(24).
---------------------------------------------------------------------------
    H.R. 424 would strike the ``uses or carries'' language, and 
replace it with a graded penalty structure for possessing, 
brandishing or discharging a firearm during and in relation to 
a federal crime of violence or drug trafficking crime. If the 
charge is for possession, however, the government must prove 
that the firearm was possessed ``in furtherance of'' the 
commission of the crime.
    H.R. 424 mandates an additional ten years imprisonment for 
a first offense for any person who possesses a firearm in 
furtherance of the commission of a crime. If a person 
brandishes a firearm, during and in relation to the commission 
of a crime, the additional prison term is fifteen years for a 
first offense. If the person discharges the firearm, during and 
in relation to the commission of a crime, the additional prison 
term is twenty years for a first offense. These increased 
penalties replace the bifurcated penalties in current law 
described above for short-barreled rifles, short-barreled 
shotguns or semiautomatic assault weapons and most other 
firearms. Additionally, if the firearm is a machinegun or 
destructive device, or is equipped with a firearm silencer or 
firearm muffler, the additional prison term shall be thirty 
years.
    For a second or subsequent offense under H.R. 424, a person 
who possess a firearm, in furtherance of a crime, shall receive 
an additional term of imprisonment of at least twenty years. A 
person who brandishes a firearm, during and in relation to the 
commission of a crime, shall receive an additional term of 
imprisonment of at least twenty-five years. A person who 
discharges a firearm, during and in relation to the commission 
of a crime, shall receive an additional term of imprisonment of 
at least thirty years. If the firearm is a machinegun or 
destructive device, or is equipped with a firearm silencer or 
firearm muffler, the person shall be sentenced to life 
imprisonment.
    H.R. 424 also clarifies that courts may not impose a 
probationary sentence, nor may any term of imprisonment under 
Sec. 924(c) run concurrently with any other term of 
imprisonment. Finally, the legislation defines ``brandish'' as 
``to display all or part of a firearm so as to intimidate or 
threaten, regardless of whether the firearm is visible.''

                Background and Need for the Legislation

    As noted above, Sec. 924(c) of title 18, United States 
Code, currently allows for a penalty enhancement for any person 
who ``uses or carries'' a firearm during and in relation to the 
commission of a federal crime of violence or drug trafficking 
crime. In the December, 1995, decision Bailey v. United 
States,6 the Supreme Court interpreted the ``use'' 
prong of Sec. 924(c). The Court held that a penalty increase 
for ``use'' of a firearm would only be applicable to persons 
who ``actively employed'' the firearm during and in relation to 
the commission of the crime.7
---------------------------------------------------------------------------
    \6\ Bailey v. United States, 116 S.Ct. 501 (1995).
    \7\ Id. at 506.
---------------------------------------------------------------------------
    Justice O'Connor, writing for the unanimous Court, 
explained that the ``active employment'' interpretation derives 
from ordinary understanding and dictionary definitions of the 
word ``use.'' Otherwise, the ``use'' prong would be interpreted 
so expansively as to encompass ``carry'' within its definition. 
The Court noted that such an outcome could not have been what 
Congress intended, as courts normally assume that each word in 
a statute has a particular purpose. Justice O'Connor cited the 
long-standing cannon of construction that instructs that ``a 
legislature is presumed to have used no superfluous words.'' 
8
---------------------------------------------------------------------------
    \8\ Id. at 507 (citing Platt v. Union Pacific R. Co., 99 U.S. 48, 
58 (1879)).
---------------------------------------------------------------------------
    The Supreme Court's limited interpretation of ``use'' of a 
firearm overturned two consolidated decisions of the United 
States Court of Appeals for the District of Columbia Circuit. 
The court of appeals had crafted an ``accessibility and 
proximity'' test to determine ``use'' under Sec. 924(c). It 
determined that the enhancement would apply ``whenever one puts 
or keeps the gun in a particular place from which one (or one's 
agent) can gain access to it if and when needed to facilitate a 
drug crime.'' 9 The court of appeals noted that 
other circuits had adopted a definition which was considerably 
broader than its previous interpretation, focusing upon whether 
the ``location of the gun was sufficient to permit the jury to 
conclude that the gun in some way facilitated the predicate * * 
* offense.'' 10
---------------------------------------------------------------------------
    \9\ United States v. Bailey, 36 F.3d 106, 115 (D.C. Cir. 1994).
    \10\ Id. at 113; see, e.g., United States v. Crass, 50 F.3d 81 (1st 
Cir. 1995) (upholding the conviction of defendant who had seventeen 
bags of cocaine and two pistols on a closet shelf, due to the close 
proximity of the drugs to the firearms).
---------------------------------------------------------------------------
    In the Bailey case, the defendant, Roland J. Bailey, was 
stopped by two Washington, D.C. police officers, after they 
observed that the car he was driving had neither a front 
license plate nor an inspection sticker. When Mr. Bailey failed 
to produce a license, the officers instructed him to get out of 
the car. As he exited, the officers observed him push something 
between his seat and the front console. Upon investigation of 
the passenger compartment, the officers found twenty-seven 
small plastic bags containing a total of thirty grams of 
cocaine, and one round of ammunition. After placing Mr. Bailey 
under arrest, the officers searched the car and located in the 
trunk a loaded 9-mm pistol and $3,216 in cash. He was convicted 
by the jury on all charges, and received two concurrent 51-
month sentences, plus a consecutive 60-month term for violation 
of Sec. 924(c).11
---------------------------------------------------------------------------
    \11\ United States v. Bailey 36 F.3d at 108-109.
---------------------------------------------------------------------------
    The facts of the consolidated case against petitioner 
Candisha Robinson involved a Metropolitan Police Department 
controlled drug buy. An undercover officer contacted Ms. 
Robinson's sister and told her that he wanted to buy crack 
cocaine. The sister lead him to Ms. Robinson's apartment, where 
the officer repeated his request to Ms. Robinson. After the 
sisters allowed him to enter the apartment, he observed them go 
into the bedroom and retrieve a rock of crack cocaine, which 
they then sold to him. The next evening, the officer made 
another controlled buy. After the second buy, police officers 
executed a search warrant of the apartment. Inside a locked 
trunk in the bedroom closet, they discovered a .22-caliber 
Derringer, 10.88 grams of crack cocaine, a marked $20 bill from 
the first controlled buy, Ms. Robinson's 1990 tax return and a 
letter from her employer. The jury convicted her of five 
separate drug charges, and in addition to the prison term for 
the drug offenses, she received a 60-month term of imprisonment 
for a violation of Sec. 924(c).12
---------------------------------------------------------------------------
    \12\ Id. at 109.
---------------------------------------------------------------------------
    The court of appeals upheld both convictions under the 
newly crafted ``proximity and accessibility'' test, concluding 
that, in order to defeat a challenge upon appeal, the 
government,

        need only point to evidence that the firearm in 
        question was in proximity to the drugs, drug 
        paraphernalia, or drug proceeds and was accessible to 
        the defendant from the site of the drugs, drug 
        paraphernalia, or drug proceeds involved in his or her 
        predicate drug trafficking offense. Because the 
        government presented such evidence at the trials of 
        both Bailey and Robinson, the judgments of conviction 
        in each case are affirmed.

    Thus, the Supreme Court's decision that ``use'' requires 
``active employment'' has had asignificant impact upon federal 
drug and violent crime prosecutions and convictions across the country. 
Section 924(c) has been a valuable and frequently used tool of federal 
prosecutors. According to the United States Sentencing Commission, 
there were 9,182 defendants sentenced nationwide from 1991 to 1995 
under Sec. 924(c). The U.S. Sentencing Commission statistics also 
indicate that the vast majority of these cases (nearly 75%) in which a 
Sec. 924(c) enhancement was sought were for drug trafficking and bank 
robbery. Since the Bailey decision, the number of federal cases 
involving a Sec. 924(c) enhancement has declined by approximately 17%.
    The circuit courts must also now address a deluge of 
appeals from defendants with previous convictions for ``use'' 
of a firearm under Sec. 924(c). Upon appeal, prosecutors in 
many cases are being forced to concede that the jury 
instructions given prior to the Bailey decision were erroneous, 
and may justify reversal.13
---------------------------------------------------------------------------
    \13\ See, e.g., United States v. Wilson, 116 F.3d 1066 (5th Cir. 
1997) (conviction under Sec. 924(c) ``use'' vacated and remanded for 
retrial on ``carry'' prong); United States v. Green, 1997 U.S. App. 
LEXIS 13580 (10th Cir. 1997) (same); United States v. Lin, 101 F.3d 760 
(D.C. Cir. 1996) (holding that ``under the supervening-decision 
doctrine * * * Lin's conviction under 18 U.S.C. Sec. 924(c) must be 
reversed because the trial judge's instruction permitted the jury to 
return a guilty verdict based on an interpretation of the statute that 
was subsequently foreclosed by the Supreme Court in Bailey v. United 
States.''); United States v. Turner, 914 F.Supp. 48 (W.D.N.Y.) (post-
Bailey, Turner's motion to vacate conviction was granted without 
opposition from the government).
---------------------------------------------------------------------------
    H.R. 424 strikes the words uses or carries from 
Sec. 924(c), and replaces them with a graded penalty structure 
for possessing, brandishing or discharging a firearm. The word 
``possession'' has a broader meaning than either ``uses'' or 
``carries,'' thus reversing the restrictive effect of the 
Bailey decision. In order to sustain a conviction for 
possession under Sec. 924(c), the government must prove that a 
firearm was possessed ``in furtherance of'' the commission of 
the federal crime of violence or drug trafficking offense.
    H.R. 424 clarifies Congress'' intent with regard to 
Sec. 924(c) offenses. The ``uses or carries'' test is replaced 
with increased penalties for escalating egregious conduct. For 
a first offense, a person will receive 10 years for possessing 
a firearm, 15 years for brandishing a firearm, and 20 years for 
discharging a firearm. Penalties are higher for second or 
subsequent offense, or if the firearm is a machinegun or 
destructive device, or is equipped with a firearm muffler or 
silencer. Moreover, the Committee does not intended to 
discriminate between various types of firearms, as current law 
does, to determine the appropriate number of additional years 
imprisonment. Regardless of the type of firearm possessed, a 
defendant will receive a mandatory additional 10 years for a 
first offense. H.R. 424 is supported by the National Fraternal 
Order of Police.

                                Hearings

    No hearings were held in the 105th Congress on H.R. 424.

                        Committee Consideration

    On July 16, 1997, the Subcommittee on Crime met in open 
session and ordered reported favorably the bill H.R. 424, as 
amended, by a voice vote, a quorum being present. On September 
9, 1997, the Committee met in open session and ordered reported 
favorably the bill H.R. 424, with amendment, by a recorded vote 
of 17 to 8, a quorum being present.

                         Vote of the Committee

                             ROLLCALL NO. 1

    Date: September 9, 1997.
    Subject: H.R. 424, to provide for increased mandatory 
minimum sentences for criminals possessing firearms, and for 
other purposes. Amendment offered by Ms. Jackson Lee to the 
Subcommittee amendment in the nature of a substitute. Defeated 
7-16.

------------------------------------------------------------------------
                                            Ayes       Nays     Present 
------------------------------------------------------------------------
Mr. Sensenbrenner......................  .........         X   .........
Mr. McCollum...........................  .........         X   .........
Mr. Gekas..............................  .........         X   .........
Mr. Coble..............................  .........         X   .........
Mr. Smith (TX).........................  .........         X   .........
Mr. Schiff.............................  .........  .........  .........
Mr. Gallegly...........................  .........         X   .........
Mr. Canady.............................  .........         X   .........
Mr. Inglis.............................  .........         X   .........
Mr. Goodlatte..........................  .........         X   .........
Mr. Buyer..............................  .........         X   .........
Mr. Bono...............................  .........         X   .........
Mr. Bryant (TN)........................  .........  .........  .........
Mr. Chabot.............................  .........         X   .........
Mr. Barr...............................  .........         X   .........
Mr. Jenkins............................  .........         X   .........
Mr. Hutchinson.........................  .........         X   .........
Mr. Pease..............................  .........         X   .........
Mr. Cannon.............................  .........  .........  .........
Mr. Conyers............................         X   .........  .........
Mr. Frank..............................  .........  .........  .........
Mr. Schumer............................  .........  .........  .........
Mr. Berman.............................  .........  .........  .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................         X   .........  .........
Mr. Scott..............................         X   .........  .........
Mr. Watt...............................         X   .........  .........
Ms. Lofgren............................         X   .........  .........
Ms. Jackson-Lee........................         X   .........  .........
Ms. Waters.............................  .........  .........  .........
Mr. Meehan.............................  .........  .........  .........
Mr. Delahunt...........................         X   .........  .........
Mr. Wexler.............................  .........  .........  .........
Mr. Rothman............................  .........  .........  .........
Mr. Hyde, Chairman.....................  .........  .........  .........
                                        --------------------------------
      Total............................         7         16   .........
------------------------------------------------------------------------

                             ROLLCALL NO. 2

    Date: September 9, 1997.
    Subject: H.R. 424, to provide for increased mandatory 
minimum sentences for criminals possessing firearms, and for 
other purposes. Motion to order the previous question on the 
substitute amendment offered by Mr. Watt to the Subcommittee 
amendment in the nature of a substitute. Agreed to 17-7.

------------------------------------------------------------------------
                                            Ayes       Nays     Present 
------------------------------------------------------------------------
Mr. Sensenbrenner......................         X   .........  .........
Mr. McCollum...........................         X   .........  .........
Mr. Gekas..............................         X   .........  .........
Mr. Coble..............................         X   .........  .........
Mr. Smith (TX).........................         X   .........  .........
Mr. Schiff.............................  .........  .........  .........
Mr. Gallegly...........................         X   .........  .........
Mr. Canady.............................         X   .........  .........
Mr. Inglis.............................         X   .........  .........
Mr. Goodlatte..........................         X   .........  .........
Mr. Buyer..............................         X   .........  .........
Mr. Bono...............................         X   .........  .........
Mr. Bryant (TN)........................         X   .........  .........
Mr. Chabot.............................         X   .........  .........
Mr. Barr...............................         X   .........  .........
Mr. Jenkins............................         X   .........  .........
Mr. Hutchinson.........................         X   .........  .........
Mr. Pease..............................         X   .........  .........
Mr. Cannon.............................  .........  .........  .........
Mr. Conyers............................  .........         X   .........
Mr. Frank..............................  .........         X   .........
Mr. Schumer............................  .........  .........  .........
Mr. Berman.............................  .........  .........  .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................  .........  .........  .........
Mr. Scott..............................  .........         X   .........
Mr. Watt...............................  .........         X   .........
Ms. Lofgren............................  .........         X   .........
Ms. Jackson-Lee........................  .........         X   .........
Ms. Waters.............................  .........  .........  .........
Mr. Meehan.............................  .........  .........  .........
Mr. Delahunt...........................  .........         X   .........
Mr. Wexler.............................  .........  .........  .........
Mr. Rothman............................  .........  .........  .........
Mr. Hyde, Chairman.....................  .........  .........  .........
                                        --------------------------------
      Total............................        17          7   .........
------------------------------------------------------------------------

                             rollcall no. 3

    Date: September 9, 1997.
    Subject: H.R. 424, to provide for increased mandatory 
minimum sentences for criminals possessing firearms, and for 
other purposes. Motion to report. Agreed to 17-8.

------------------------------------------------------------------------
                                            Ayes       Nays     Present 
------------------------------------------------------------------------
Mr. Sensenbrenner......................         X   .........  .........
Mr. McCollum...........................         X   .........  .........
Mr. Gekas..............................         X   .........  .........
Mr. Coble..............................         X   .........  .........
Mr. Smith (TX).........................         X   .........  .........
Mr. Schiff.............................  .........  .........  .........
Mr. Gallegly...........................         X   .........  .........
Mr. Canady.............................         X   .........  .........
Mr. Inglis.............................         X   .........  .........
Mr. Goodlatte..........................         X   .........  .........
Mr. Buyer..............................         X   .........  .........
Mr. Bono...............................         X   .........  .........
Mr. Bryant (TN)........................         X   .........  .........
Mr. Chabot.............................         X   .........  .........
Mr. Barr...............................         X   .........  .........
Mr. Jenkins............................         X   .........  .........
Mr. Hutchinson.........................         X   .........  .........
Mr. Pease..............................  .........         X   .........
Mr. Cannon.............................         X   .........  .........
Mr. Conyers............................  .........         X   .........
Mr. Frank..............................  .........         X   .........
Mr. Schumer............................  .........  .........  .........
Mr. Berman.............................  .........  .........  .........
Mr. Boucher............................  .........  .........  .........
Mr. Nadler.............................  .........  .........  .........
Mr. Scott..............................  .........         X   .........
Mr. Watt...............................  .........         X   .........
Ms. Lofgren............................  .........         X   .........
Ms. Jackson Lee........................  .........         X   .........
Ms. Waters.............................  .........  .........  .........
Mr. Meehan.............................  .........  .........  .........
Mr. Delahunt...........................  .........         X   .........
Mr. Wexler.............................  .........  .........  .........
                                                                        
Mr. Rothman............................  .........  .........  .........
Mr. Hyde, Chairman.....................  .........  .........  .........
                                                                        
                                        --------------------------------
      Total............................        17          8   .........
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 424, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

H.R. 424--A bill to provide for increased mandatory minimum sentences 
        for criminals possessing firearms, and for other purposes

    Summary: Enacting H.R. 424 would clarify and increase 
mandatory minimum prison sentences for the use of a firearm 
during the commission of federal crimes that are either crimes 
of violence or drug trafficking crimes. Assuming appropriation 
of the necessary amounts, CBO estimates that implementing the 
bill would result in additional costs of about $10 million over 
the next five years to accommodate more prisoners in federal 
prisons. Enacting H.R. 424 would not affect direct spending or 
receipts; therefore, pay-as-you go procedures would not apply. 
H.R. 424 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(UMRA) and would impose no costs on state, local, or tribal 
governments.
    Current law provides for a mandatory minimum of five years 
in prison for ``using or carrying'' a firearm during the 
commission of a federal crime of violence or drug trafficking 
crime. Even though the ``minimum'' sentence is five years, many 
offenders receive reduced sentences of less than five years for 
cooperating with federal prosecutors. Under H.R. 424, the 
mandatory minimum sentence for possessing a firearm during the 
commission of such crimes would be 10 years. Brandishing a 
firearm while committing such offenses would result in a 15-
year mandatory minimum sentence, and the discharging of a 
firearm during the commission of such crimes would result in a 
20-year mandatory minimum sentence. These penalties would be in 
addition to any prison time received for the conviction of the 
underlying offense, and penalties would be higher for a second 
offense, or if a machinegun, destructive device, firearm 
muffler, or firearm silencer is used.
    Estimated cost to the Federal Government: CBO estimates 
that implementing H.R. 424 would increase discretionary 
spending for prison operating costs by about $10 million over 
the 1998-2002 period, subject to appropriation of the necessary 
amounts. The following table summarizes the estimated budgetary 
impact of the bill.

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal years in millions of dollars--      
                                                           -----------------------------------------------------
                                                              1997     1998     1999     2000     2001     2002 
----------------------------------------------------------------------------------------------------------------
                                        SPENDING SUBJECT TO APPROPRIATION                                       
                                                                                                                
Spending for Prison Operations Under Current Law:                                                               
    Estimated Authorization Level \1\.....................    2,768    2,867    2,966    3,069    3,176    3,287
    Estimated Outlays.....................................    2,603    2,764    2,946    3,049    3,155    3,265
Proposed Changes:                                                                                               
    Estimated Authorization Level.........................        0    (\2\)        1        2        3        4
    Estimated Outlays.....................................        0    (\2\)        1        2        3        4
Spending for Prison Operations Under H.R. 424:                                                                  
    Estimated Authorization Level \1\.....................    2,768    2,867    2,967    3,071    3,179    3,291
    Estimated Outlays.....................................    2,603    2,764    2,947    3,051    6,158    3,269
----------------------------------------------------------------------------------------------------------------
\1\ The 1997 level is the amount appropriated for that year. The estimated authorization levels for 1998 through
  2002 reflect CBO baseline estimates, assuming adjustment for inflation.                                       
\2\ Less than $500,000.                                                                                         

    The costs of this legislation fall within budget function 
750 (administration of justice).
    Because this bill would apply to convicted felons who would 
serve lengthy sentences under current law, CBO expects that the 
full budgetary effects of H.R. 424 would not be realized until 
after 30 years when the additional prison population resulting 
from this bill would reach an estimated 4,500 prisoners and 
remain steady thereafter. Thus, assuming no significant change 
in the number of convictions, the cost to the prison system on 
a long-term basis would total about $40 million annually (in 
1997 dollars for operating costs). Furthermore,additional 
prisons would have to be constructed over the next 30 years to support 
such an increase in prison population. Based on information from the 
Bureau of Prisons, CBO estimates that added construction costs would 
likely exceed $340 million (in 1997 dollars over the 30-year period).
    Basis of estimate: For purposes of this estimate, CBO 
assumes that the bill will be enacted within the next few 
months, and that the necessary funds will be appropriated at or 
near the beginning of each fiscal year.
    According to the U.S. Sentencing Commission, enacting H.R. 
424 would increase the average sentence imposed on certain 
offenders by about 60 months. Additional time served, however, 
could be less than 60 months because of sentence reductions for 
good behavior or for cooperating with federal prosecutors. 
Based on information from the U.S. Sentencing Commission, CBO 
expects that the prison population would increase by at least 
380 prisoners over the next five years, taking into account the 
fact that some convicted felons currently receive sentences of 
less than five years. At an annual cost per prisoner of about 
$8,700 (at 1997 prices), CBO estimates that the costs to 
support these additional prisoners would total about $10 
million over the 1998-2002 period. This estimate assumes that 
no additional prisons would be constructed over the next five 
years to accommodate this increase in prison population. 
Because the bill would increase a five-year sentence to a 
sentence of 10 years or more, most of the costs of implementing 
H.R. 424 would occur after 2002.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: The bill 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not impose costs on state, local, or 
tribal governments.
    Estimate prepared by: Susanne S. Mehlman.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8 of the Constitution.

                      Section-by-Section Analysis

    Section 1. Mandatory Prison Terms for Possessing, 
Brandishing, or Discharging a Firearm or Destructive Device 
During a Federal Crime That is a Crime of Violence or a Drug 
Trafficking Crime.--This section strikes the current language 
of Sec. 924(c) of title 18, United States Code, which allows 
for an increased penalty for any person who ``uses or carries a 
firearm,'' during and in relation to the commission of a 
federal crime of violence or drug trafficking crime. It 
replaces the ``uses or carries'' test with increased penalties 
for any person who ``possesses'' ``brandishes,'' or 
``discharges'' a firearm during and in relation to the 
commission of a federal crime of violence or drug trafficking 
crime. Possession must also be ``in furtherance of the crime.'' 
The Committee believes that distinguishing various actions in 
this manner will result in more appropriate sentences for 
persons convicted under Sec. 924(c).
    The Committee recognizes that the distinction between ``in 
furtherance of'' and ``during and in relation to'' is a subtle 
one, and may initially prove troublesome for prosecutors. 
Nevertheless, the Committee believes that ``in furtherance of'' 
is a slightly higher standard,14 and encompasses the 
``during and in relation to'' language.
---------------------------------------------------------------------------
    \14\ In the Bailey decision itself, the Court of Appeals for the 
District of Columbia Circuit noted that ``Congress expressly retained 
the `in relation to' requirement in preference to a more restrictive 
`in furtherance of' requirement.'' (emphasis added). United States v. 
Bailey, 36 F.3d at 116.
---------------------------------------------------------------------------
    Both Webster's New International Dictionary and Black's Law 
Dictionary define ``furtherance'' as the ``act of furthering, 
helping forward, promotion, advancement, or progress.'' 
15 Most case law interpreting ``in furtherance of'' 
pertains to conspiracy charges.16 However, the cases 
and the usual understanding of the words do provide some 
guidance for interpreting the phrase in this 
context.17 The government must clearly show that a 
firearm was possessed to advance or promote the commission of 
the underlying offense. The mere presence of a firearm in an 
area where a criminal act occurs is not a sufficient basis for 
imposing this particular mandatory sentence. Rather, the 
government must illustrate through specific facts, which tie 
the defendant to the firearm, that the firearm was possessed to 
advance or promote the criminal activity.
---------------------------------------------------------------------------
    \15\ Webster's New International Unabridged Dictionary 1022 (2d ed. 
1959); Black's Law Dictionary 675 (6th ed. 1990).
    \16\ See Fed. R. Evid. 801 (d)(2)(E).
    \17\ See, e.g., People v. Trilck, 132 N.W.2d 134, 136-137 (1965) 
(stating that the word furtherance is not an obscure, technical word, 
but rather a commonplace word understood by an ordinary person as 
advancement or promotion).
---------------------------------------------------------------------------
    The facts of the Bailey decision, reiterated above, provide 
a good example. The Committee believes that the evidence 
presented by the government in that case may not have been 
sufficient to sustain a conviction for possession of a firearm 
``in furtherance of'' the commission of a drug trafficking 
offense. In that case, a prosecution expert testified at Mr. 
Bailey's trial that drug dealers frequently carry a firearm to 
protect themselves, as well as their drugs and 
money.18 Standing on its own, this evidence may be 
insufficient to meet the ``in furtherance of'' test. The 
government would have to show that the firearm located in the 
trunk of the car advanced or promoted Mr. Bailey's drug dealing 
activity. The Committee believes that one way to clearly 
satisfy the ``in furtherance of'' test would be additional 
witness testimony connecting Mr. Bailey more specifically with 
the firearm.
---------------------------------------------------------------------------
    \18\ United States v. Bailey, 116 S.Ct. at 504.
---------------------------------------------------------------------------
    To sustain a conviction for brandishing or discharging a 
firearm, the government must demonstrate that the firearm was 
used ``during and in relation to'' the commission of the 
federal crime of violence or drug trafficking crime. In Smith 
v. United States,19 the Supreme Court enunciated 
what is needed to meet this test. The Court determined that 
``the phrase `in relation to' clarifies that the firearm must 
have some purpose or effect with respect to the drug 
trafficking crime; its presence or involvement cannot be the 
result of accident or coincidence.'' 20 The Court 
further explained that the ``language `allays explicitly the 
concern that a person could be' punished under Sec. 924(c)(1) 
for committing a drug trafficking offense * * * even though the 
firearm's presence is coincidental or entirely `unrelated' to 
the crime.'' 21 The Committee intends to leave 
undisturbed the body of case law which has interpreted the 
phrase ``during and in relation to'' in the context of 
prosecutions for violations of Sec. 924(c).
---------------------------------------------------------------------------
    \19\ Smith v. United States, 508 U.S. 223 (1993).
    \20\ Id. at 238.
    \21\ Id. (citing United States v. Stewart, 779 F.2d 538, 539 (1995) 
(Kennedy, J.).
---------------------------------------------------------------------------
    H.R. 424 also defines the term ``brandish,'' for purposes 
of a Sec. 924(c) charge. A person brandishes a firearm if he or 
she ``display[s] all or part of the firearm so as to intimidate 
orthreaten, regardless of whether the firearm is visible.'' The 
Committee expects that even when a person displays the outline of a 
firearm through clothing or other similar shroud the definition of 
brandish will be satisfied. For example, this would encompass such 
conduct as a person pointing a firearm through a coat pocket, so that 
only the outline of the barrel of the firearm is visible. The Committee 
intends that the test of whether the firearm intimidated or threatened 
be an objective one. Thus, unavailability of witnesses or disputes 
between witness recollections would not preclude prosecutors from 
bringing a charge for brandishing a firearm under Sec. 924(c).
    Under Sec. 924(c)(1)(A), for possession in furtherance of 
the commission of the crime, a person shall receive, in 
addition to any penalties for the underlying offense(s), a 
minimum of ten years imprisonment. Under subsection (c)(1)(B), 
for brandishing during and in relation to the commission of the 
crime, a person shall receive, in addition to any other 
penalties, a minimum of fifteen years imprisonment. Under 
subsection (c)(1)(C), for discharging a firearm during and in 
relation to the commission of the crime, a person shall 
receive, in addition to any other penalties, a minimum of 
twenty years imprisonment. If the firearm is a machinegun or 
destructive device, or is equipped with a firearm silencer or 
muffler, the additional sentence shall be at least thirty years 
for a first offense. The Committee notes that currently, under 
Sec. 924(j), any person who causes the death of another through 
the use of a firearm, in the course of a violation of 
subsection Sec. 924(c), may be punished by death, or by 
imprisonment for any term of years or for life.
    Under Sec. 924(c)(2)(A), for a second or subsequent 
conviction, a person who possesses a firearm shall receive an 
additional twenty years imprisonment. Under subsection 
(c)(2)(B), a person who brandishes shall receive an additional 
twenty-five years imprisonment, and under subsection (c)(2)(C), 
a person who discharges shall receive an additional thirty 
years imprisonment. If the firearm is a machinegun or 
destructive device, or is equipped with a firearm silencer or 
muffler, such additional sentence shall be life imprisonment.
    Under Sec. 924(c)(3), no court may impose a probationary 
sentence, nor may any term of imprisonment imposed for a 
violation of Sec. 924(c) run concurrently with any other term 
of imprisonment. This includes any term of imprisonment imposed 
for the underlying crimes of violence or drug trafficking 
offenses in which the firearm was employed.

                              Agency Views

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                                    Washington, DC.
Hon. Henry Hyde,
Chairman, Committee on the Judiciary, House of Representatives, 
        Washington, DC.
    Dear Mr. Chairman: I am writing to convey the views of the 
Department of Justice on H.R. 424 as reported by the 
Subcommittee on Crime in anticipation of the consideration of 
this measure by the full Judiciary Committee.
    H.R. 424 is designed to respond to the 1995 decision of the 
Supreme Court in Bailey v. United States, 116 S. Ct. 501, which 
narrowly interpreted 18 U.S.C. 924(c), the statute that 
punishes persons who use or carry a firearm during and in 
relation to the commission of a felony crime of violence or 
drug trafficking offense. Prior to the Court's decision in 
Bailey, the courts of appeals had generally construed this 
statute broadly to reach conduct in which, for example, a drug 
dealer possessed a firearm in connection with his drug 
activities. In Bailey, however, the Court observed that the 
statute did not proscribe possession, but rather ``use,'' of a 
firearm and held accordingly that to violate section 924(c) a 
person must ``actively employ'' a firearm.
    We believe that, as a matter of policy, the scope generally 
given to the statute by the courts of appeals before Bailey 
served better to protect the public safety. Therefore, last 
Congress and again earlier this year, the Administration 
proposed a relatively simple amendment to restore the law to 
its pre-Bailey scope by substituting the word ``possesses'' for 
the phrase ``uses or carries.'' See H.R. 810. The 
Administration bill would also have increased the current 
mandatory five-year penalty to ten years if the firearm were 
discharged or were used to cause serious bodily injury (e.g., 
to pistol whip a victim).
    In its current form, H.R. 424 would not restore the statute 
to its pre-Bailey parameters, and indeed, through its 
unprecedented requirement that possession of a firearm include 
the presence of ammunition, it would actually narrow the post-
Bailey scope of section 924(c). In addition, the Subcommittee-
approved version of H.R. 424 employs a problematic, three-
tiered penalty structure that seems both unsound and likely to 
engender substantial, unnecessary litigation. Consequently, 
while we appreciate the intent of the Subcommittee to respond 
to the Bailey decision, we believe the bill is inadequate from 
the standpoint of protecting public safety and of deterring and 
punishing violent and drug trafficking crimes involving 
firearms. We are therefore unable to support H.R. 424 in its 
present form. A more detailed exposition of our views follows.

Defining ``possess''

    Our principal objection to H.R. 424 stems from its proposed 
narrow definition of the term ``possess.'' The bill provides 
that ``a person is deemed to possess a firearm if the firearm 
and ammunition for the firearm are proximate and immediately 
accessible to the person.'' We believe that defining 
``possess'' is both unnecessary and inappropriate, particularly 
considering the requirement in section 924(c) that the weapon 
be possessed ``during and in relation to'' the underlying 
crime. See United States v. Smith, 508 U.S. 223, 238 (1993) 
(``The phrase `in relation to' thus, at a minimum, clarifies 
that the firearm must have some purpose or effect with respect 
to the drug trafficking crime; its presence or involvement 
cannot be the result of accident or coincidence.''). Moreover, 
the definition chosen in H.R. 424 is seriously flawed.
    No other criminal statute of which we are aware contains a 
definition of ``possess,'' despite the fact that the term is 
used in many statutes punishing possession of controlled 
substances or stolen or counterfeit property, as well as in the 
statute most closely related here--punishing possession of a 
firearm by a convicted felon (18 U.S.C. 922(g)). The occurrence 
of a definition of ``possess'' in section 924(c) but not in 
section 922(g) or other statutes concerning possession of drugs 
would give rise to confusing jury instructions in the case of a 
prosecution of an individual under both statutes. Moreover, the 
term ``possess'' has long been interpreted by the courts and 
has given rise to no great difficulty. Therefore, we see no 
necessity, and much potential for confusion, if in this 
frequently used statute a definition were to be enacted. We 
urge its deletion from the bill.
    Even if a definition of ``possess'' were appropriate, the 
one chosen in H.R. 424 is deeply flawed. The requirement that a 
firearm be ``proximate and immediately accessible'' would not, 
forexample, cover the common situation in which a drug dealer 
keeps a firearm with his drugs or with the proceeds or 
instrumentalities of his drug business. Such firearms pose a grave 
danger to undercover law enforcement agents and innocent bystanders, as 
well as to officers conducting a search. The only time the proposed 
definition would reach such firearms is when a drug dealer happens to 
be arrested while immediately adjacent to a firearm. In addition to 
adequately protecting the public safety, the definition would create an 
unjust and arbitrary result (dependent on the location of the arrest) 
not consistent with the purpose of section 924(c), which aims to punish 
and deter all use of firearms to facilitate drug trafficking and other 
serious offenses.
    At least equally inconsistent with the interest of public 
safety is the part of the definition of ``possess'' that would 
require the presence of ammunition. Such a definition would 
actually narrow the current scope of section 924(c) as 
interpreted by Bailey. Moreover, the requirement is 
fundamentally inconsistent with current law. A ``firearm,'' for 
purposes of federal prosecution, need not be either loaded or 
operable. See 18 U.S.C. 921(a)(3); United States v. Gutierrez-
Silva, 983 F.2d 123 (8th Cir. 1993); United States v. Yannott, 
42 F.3d 999, 1005-7 (6th Cir. 1994), cert. denied, 115 S. Ct. 
1172 (1995). This is because the potential for danger arising 
from an unloaded or inoperable weapon is still substantial if 
either the possessor or others, who may also initiate violence, 
do not know the weapon cannot fire. In addition, it would be 
virtually impossible to prove the presence of proximate and 
immediately accessible ammunition for a firearm observed in a 
drug dealer's possession during an undercover drug transaction, 
unless the dealer is arrested during or immediately after the 
transaction, which might give rise to a needlessly dangerous 
situation. Adding a requirement to ``possession'' that 
ammunition be present is therefore inconsistent, unsound, and 
unsafe.

The penalty structure

    We also have serious concerns about the rather complex 
three-tiered penalty scheme proposed in H.R. 424. We believe 
that those who possess firearms during and in relation to 
felony crimes of violence and drug trafficking crimes must be 
severely punished, and our proposal would both ensure the 
appropriate scope of section 924(c) and maintain tough 
penalties. Under current law, a violation of section 924(c) 
generally carries a five-year mandatory penalty, although the 
penalty is increased to 10 years if the firearm is a 
semiautomatic assault weapon or a gangster-type weapon, such as 
a sawed-off shotgun. H.R. 424 would double the penalty for 
possessing a firearm to 10 years; raise it to a mandatory 15 
years if a firearm were brandished; and raise it to a mandatory 
20 years if a firearm were discharged. By raising the minimum 
penalty to 10 years, the proposal eliminates the current 
distinction between assault weapons and others.
    In our view, the existing penalty scheme, which accounts 
for the different dangers associated with different weapons, is 
appropriate. Moreover, the novel concept of increasing the 
penalty for ``brandishing'' a firearm is problematic. Under the 
bill, ``to brandish'' is ``to display all or part of the 
firearm so as to intimidate or threaten, regardless of whether 
the firearm is visible.'' Even assuming ``display'' could be 
indirect whereas ``visible'' means ``directly visible,'' a bank 
robber with a wholly concealed firearm who states, ``I have a 
gun--hand over your money,'' would presumably be subject to the 
10-year penalty, whereas a robber uttering the same words while 
pointing to a bulge near his shoulder would be subject to the 
15-year penalty. We question whether such a dramatic difference 
in sentence is appropriate for such essentially equivalent 
offenders. In our view, the separate brandishing category is 
unsound.
    Finally, we recommend that H.R. 424 include, as the 
Administration's proposal does, a penalty increase for causing 
serious bodily injury through the use of a firearm. Such an 
increase is a common and appropriate feature of statues aimed 
at deterring and punishing violate crimes. We believe it should 
be incorporated in this bill.

Other issues

    Finally, we note for the Committee's consideration three 
technical matters. First, 18 U.S.C. 929, a companion statute to 
18 U.S.C. 924(c), should be amended in a parallel and 
conforming fashion to section 924(c). Second, a death penalty 
for persons who violate section 924(c) and cause death through 
the use of a firearm has been in place since 1994. See 18 
U.S.C. 924(j). Hence, the death penalty language found on page 
3, lines 17-18, of H.R. 424 is redundant. Finally, on page 3, 
line 25, the word ``used'' should be stricken and replaced with 
whatever verbs ultimately are adopted for defining the conduct 
prohibited under section 924(c).
    I hope the foregoing is useful to the Committee. Please do 
not hesitate to communicate with us if the Department may be of 
further assistance.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

              SECTION 924 OF TITLE 18, UNITED STATES CODE

Sec. 924. Penalties

  (a) * * *
          * * * * * * *
  (c)[(1) Whoever, during and in relation to any crime of 
violence or drug trafficking crime (including a crime of 
violence or drug trafficking crime which provides for an 
enhanced punishment if committed by the use of a deadly or 
dangerous weapon or device) for which he may be prosecuted in a 
court of the United States, uses or carries a firearm, shall, 
in addition to the punishment provided for such crime of 
violence or drug trafficking crime, be sentenced to 
imprisonment for five years, and if the firearm is a short-
barreled rifle, short-barreled shotgun, or semiautomatic 
assault weapon, to imprisonment for ten years, and if the 
firearm is a machinegun, or a destructive device, or is 
equipped with a firearm silencer or firearm muffler, to 
imprisonment for thirty years. In the case of his second or 
subsequent conviction under this subsection, such person shall 
be sentenced to imprisonment for twenty years, and if the 
firearm is a machinegun, or a destructive device, or is 
equipped with a firearm silencer or firearm muffler, to life 
imprisonment without release. 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. No person sentenced under this subsection shall be 
eligible for parole during the term of imprisonment imposed 
herein.] (1) A person who, during and in relation to any crime 
of violence or drug trafficking crime (including a crime of 
violence or drug trafficking crime which 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--
          (A) possesses a firearm in furtherance of the crime, 
        shall, in addition to the sentence imposed for the 
        crime of violence or drug trafficking crime, be 
        sentenced to imprisonment for 10 years;
          (B) brandishes a firearm, shall, in addition to the 
        sentence imposed for the crime of violence or drug 
        trafficking crime, be sentenced to imprisonment for 15 
        years; or
          (C) discharges a firearm, shall, in addition to the 
        sentence imposed for the crime of violence or drug 
        trafficking crime, be sentenced to imprisonment for 20 
        years;
except that if the firearm is a machinegun or destructive 
device or is equipped with a firearm silencer or firearm 
muffler, such additional sentence shall be imprisonment for 30 
years.
  (2) In the case of the second or subsequent conviction of a 
person under this subsection--
          (A) if the conviction is for possession of a firearm 
        as described in paragraph (1), the person shall, in 
        addition to the sentence imposed for the crime of 
        violence or drug trafficking crime involved, be 
        sentenced to imprisonment for not less than 20 years;
          (B) if the conviction is for brandishing a firearm as 
        described in paragraph (1), the person shall, in 
        addition to the sentence imposed for the crime of 
        violence or drug trafficking crime involved, be 
        sentenced to imprisonment for not less than 25 years; 
        or
          (C) if the conviction is for discharging a firearm as 
        described in paragraph (1), the person shall, in 
        addition to the sentence imposed for the crime of 
        violence or drug trafficking crime involved, be 
        sentenced to imprisonment for not less than 30 years;
except that if the firearm is a machinegun or destructive 
device or is equipped with a firearm silencer or firearm 
muffler, the person shall, in addition to the sentence imposed 
for the crime of violence or drug trafficking crime involved, 
be sentenced to life imprisonment.
  (3) Notwithstanding any other provision of law, the court 
shall not impose a probationary sentence on any person 
convicted of a violation of this subsection, nor shall a 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.
  (4) For purposes of this subsection, the term ``brandish'' 
means, with respect to a firearm, to display all or part of the 
firearm so as to intimidate or threaten, regardless of whether 
the firearm is visible.
  [(2)] (5) For purposes of this subsection, the term ``drug 
trafficking crime'' means any felony punishable under the 
Controlled Substances Act (21 U.S.C. 801 et seq.), the 
Controlled Substances Import and Export Act (21 U.S.C. 951 et 
seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 
1901 et seq.).
  [(3)] (6) For purposes of this subsection the term ``crime of 
violence'' means an offense that is a felony and--
          (A) has as an element the use, attempted use, or 
        threatened use of physical force against the person or 
        property of another, or
          (B) that by its nature, involves a substantial risk 
        that physical force against the person or property of 
        another may be used in the course of committing the 
        offense.
          * * * * * * *

                            DISSENTING VIEWS

    We oppose this legislation because of the unduly severe 
mandatory minimum penalties it includes: 10 years for 
possession of a gun, 15 years for brandishing a gun and 20 
years for discharging a gun, without any evidence that this 
increase in penalty is necessary or even advisable.
    Under the penalty structure imposed by this legislation, if 
a defendant is convicted of possessing 5 grams of crack and is 
found to have possessed a gun at the time, he will receive a 
mandatory 15 year sentence. But if this is not a first drug 
offense, the defendant will receive a mandatory 25 year 
sentence.
    If the defendant opened his coat to display a gun tucked 
into his pants during the course of this drug offense, he will 
receive a mandatory 20 year sentence. But, again, if this is 
not the defendant's first drug offense, he will receive a 
mandatory 30 year sentence.
    Finally, if the defendant discharged a firearm in the 
course of the offense--perhaps by simply shooting it into the 
air--he will receive a mandatory 25 year sentence, 35 years if 
this is not his first offense.
    A comparison between these penalties and the penalties for 
other violent crimes is instructive. Voluntary manslaughter 
carries a penalty of five years; aggravated assault, less than 
two years; assault with intent to murder, less than three and 
one-half years; criminal sexual abuse, under six years; and 
kidnapping carries a penalty of approximately four years.
    In our view, the fact that a defendant can receive five 
years for manslaughter, two years for serious assault, three 
and one-half years for assault with intent to murder, six years 
for rape and four years for kidnapping, but between 15 and 35 
years for possessing a gun in connection with a drug offense 
where no one is injured defies logic. It is ludicrous for the 
House to pass a measure requiring some drug offenders to 
receive a penalty 6 times greater than the penalty for rape and 
7 times greater than the penalty for voluntary manslaughter 
when these defendants haven't caused any bodily injury.
    Morevoer, the Department of Justice, which has strongly 
urged Congress to amend Title 18 section 924(c) of the United 
States Code ever since the Supreme Court's decision Bailey v. 
United States,\1\ has not requested any change in the penalty 
structure, and in fact, has sent the Committee a letter 
declaring the existing penalty structure ``appropriate.'' \2\
---------------------------------------------------------------------------
    \1\ 116 S. Ct. 501 (1995).
    \2\ Letter from Andrew Fois, Assistant Attorney General for 
Legislative Affairs, Department of Justice, to Congressman Henry J. 
Hyde, Chairman, House Judiciary Committee, September 8, 1997.
---------------------------------------------------------------------------
    The Department of Justice's letter also notes that the 
penalty structure created by this legislation eliminates the 
current distinction between assault weapons and others. This is 
clearly intentional. Under current law, a violation of section 
924(c) generally carries a five year mandatory penalty, 
although the penalty is increased to ten years if the firearm 
is a semiautomatic assault weapon or a gangster-type weapon 
such as a sawed-off shot gun. Ever since the ban on semi-
automatic assault weapons was passed into law as part of the 
1994 Omnibus Crime Bill,\3\ the majority has actively sought 
ways to diminish the significance and the impact of the ban. 
The new penalty structure imposed by this legislation is simply 
another way that the majority is attempting to subvert the 
assault weapons ban without actually voting to repeal the ban.
---------------------------------------------------------------------------
    \3\ Title XI, Subtitle A, Pub. L. 103-322, Sept. 13, 1994.
---------------------------------------------------------------------------
    Despite these concerns, in a voice vote, the majority 
opposed an amendment in the nature of a substitute offered by 
Congressman Scott, and supported by the American Bar 
Association,\4\ which would have left the current penalty 
structure intact and ordered the United States Sentencing 
Commission, the body Congress has charged with creating a 
reasoned and appropriate penalty structure, to study whether 
the current sentences are adequate and make recommendations to 
Congress as to whether the penalties need adjustment.
---------------------------------------------------------------------------
    \4\ Letter from Robert B. Evans, Director of the Government Affairs 
Office, American Bar Association, to Congressman John Conyers, Jr., 
Ranking Member, House Judiciary Committee, September 16, 1997.
---------------------------------------------------------------------------
    Because the penalties imposed by this legislation are 
unduly harsh and because no evidence has been presented 
suggesting that such harsh penalties are necessary, we dissent 
from the passage of H.R. 424.

                                   John Conyers, Jr.
                                   Bobby Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Barney Frank.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.