                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4634


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JOSE ARMANDO BRAN, a/k/a Pantro,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:12-cr-00131-REP-1)


Argued:   September 19, 2014                Decided:   January 22, 2015


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by published opinion.        Judge Shedd wrote the majority
opinion, in which Judge Agee         joined.    Judge King wrote an
opinion dissenting in part.


ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant.       Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.   ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.    Dana J. Boente,
Acting United States Attorney, Alexandria, Virginia, Roderick C.
Young, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
SHEDD, Circuit Judge:

      A federal jury convicted Jose Armando Bran of five criminal

counts relating to his involvement with the street gang La Mara

Salvatrucha,    also   known     as       MS-13.         On    appeal,        Bran    primarily

argues that the district court erred by denying his motion for

judgment of acquittal on Count 3 and by imposing a mandatory

consecutive    sentence     for       his       Count         3    conviction.         For       the

following reasons, we affirm.

                                            I

      Bran was convicted of conspiracy to commit murder in aid of

racketeering (Count 1); murder in aid of racketeering (Count 2);

use of a firearm during a crime of violence causing death to

another   (Count    3);    conspiracy           to       commit       murder     in        aid    of

racketeering    (Count     4);    and       maiming           in   aid   of     racketeering

(Count 5). Counts 1, 2, and 3 arise from the murder of Osbin

Hernandez-Gonzalez.       Counts      4    and       5    arise     from       the    attempted

murder of Florintino Ayala. The district court sentenced Bran to

120 months for Count 1, mandatory life for Count 2, 120 months

for   Count    4,   and    360     months         for         Count      5,     all    to        run

concurrently, and life for Count 3, to run consecutively to the

sentences for Counts 1, 2, 4, and 5.

      Generally,    the    government            presented          evidence          at     trial

tending to establish that Bran was the leader of the Richmond

Sailors Set, which is a violent clique of MS-13. During Bran’s

                                            2
involvement        with    the    Sailors         Set,         the   clique      was    a    criminal

enterprise engaged in drug trafficking, money transfers to MS-13

leadership in El Salvador, witness tampering, violent physical

assaults     –     including      the    attempted               murder     of    Ayala      and   the

murder       of     Hernandez-Gonzalez                    –      and      other        racketeering

activities.

       Bran’s      principal      argument            relates        to    his    conviction       and

sentence on Count 3. In Count 3, the government charged Bran

with     violating          three       criminal                statutes:         18     U.S.C.      §

924(c)(1)(A), 18 U.S.C. § 924(j)(1), and 18 U.S.C. § 2. Section

924(c)(1)(A)        “prohibits         the   use          or    carrying     of    a    firearm     in

relation to a crime of violence or drug trafficking crime, or

the possession of a firearm in furtherance of such crimes,” and

a violation of the statute “carries a mandatory minimum term of

five years’ imprisonment,” United States v. O’Brien, 560 U.S.

218,   221    (2010),       which      must       run         consecutively        to    any      other

sentence,        Abbott     v.    United      States,            562      U.S.    8,    23   (2010).

Section 924(j)(1) provides that a person who causes the murder

of   another       through       the   use    of          a    firearm      in    the    course     of

committing a violation of § 924(c) shall “be punished by death

or by imprisonment for any term of years or for life.”                                       Section

2 provides that a person “is punishable as a principal” if the

person:      (a)        “aids,    abets,          counsels,            commands,        induces     or

procures”         the     commission         of       a        criminal     offense;         or    (b)

                                                  3
“willfully causes an act to be done which if directly performed

by him or another” would be a criminal offense.

       Pertinent       to   Count     3,    the      government       presented      evidence

tending to establish that in July 2011, Bran ordered prospective

MS-13 members Jeremy Soto and Luis Cabello to murder Hernandez-

Gonzalez, whom Bran believed to be an informant for a rival

gang. Bran further instructed Michael Arevalo, another Sailors

Set    member,    to    ensure       Soto     and        Cabello   successfully          killed

Hernandez-Gonzalez.           Bran    gave       Soto     and   Cabello      a   firearm     to

commit the murder. Pursuant to Bran’s order, Arevalo, Soto, and

Cabello led Hernandez-Gonzalez to a path along the James River,

where they shot him four times using Arevalo’s firearm, stole

his cellphone, and left him to die which he did soon thereafter.

Soto and Cabello were later initiated into Sailors Set for their

participation in the murder.

       Regarding Count 3, the district court instructed the jury

that    the    government       had     to       prove     three      elements      beyond    a

reasonable doubt: (1) that Bran aided and abetted the murder of

Hernandez-Gonzalez;            (2)     that          during     and     in   relation        to

commission of the murder, Bran knowingly aided or abetted the

use,   carriage,       or   discharge        of      a   firearm;     and    (3)    that    the

firearm       caused    the     death       of       Hernandez-Gonzalez.           The    court

further   instructed          the    jury    that        Bran   could   be   convicted       on



                                                 4
Count 3 under the theory of aiding and abetting. Bran did not

object to the jury instructions.

          On the verdict form, the district court titled Count 3 “Use

of    a    Firearm       During    a     Crime          of    Violence      Causing         Death      to

Another.” J.A. 1311. The court instructed the jury to return a

general verdict on Count 3 and, if the jury determined Bran was

guilty, to then answer a three-part special interrogatory. The

interrogatory          asked      the    jury        to       state    whether         Bran   aided,

abetted, counseled, commanded, induced, or caused another to:

(1) use a firearm during and in relation to a crime of violence;

(2)    carry      a    firearm     during        and         in   relation       to    a    crime      of

violence; and/or (3) cause a firearm to be discharged during and

in relation to a crime of violence. The court instructed the

jury that in answering the interrogatory, it should check which

fact      or    facts,    if   any,      it     unanimously            found     the       government

proved beyond a reasonable doubt. Bran did not object to the

verdict form or the instructions by the court.

          The   jury   returned         guilty      verdicts          on   all    counts.         As   to

Count      3,   the    jury    returned         a       general     verdict       of    guilty         and

answered        in    response     to     the       special       interrogatory            that    Bran

aided, abetted, counseled, commanded, induced, or caused another

to cause a firearm to be discharged during and in relation to a

crime of violence. Because the jury did not find that Bran aided

or abetted another to use or carry a firearm during and in

                                                    5
relation to a crime of violence, the district court convened

counsel upon receipt of the verdict to discuss the implications

of the jury’s answer to the special interrogatory. Ultimately,

all parties agreed that it would be inappropriate to ask the

jury any further questions about the verdict and to “go with the

verdict form as it is.” J.A. 1299.

        Bran thereafter moved for judgment of acquittal arguing,

among other things, that the jury’s failure to specifically find

“use” of a firearm amounts to an acquittal on the § 924(j)

offense. The district court denied the motion. At sentencing,

the   court    imposed    a   life       sentence   for    Count    3.    Over     Bran’s

objection,      the   court     determined          that    §      924(c)(1)(A)(iii)

mandates that the § 924(j) life sentence run consecutively to

the sentences imposed for Counts 1, 2, 4 and 5.

                                            II

       As we have noted, Bran’s main arguments on appeal relate to

Count    3.   Specifically,     he       contends   that    the    jury    verdict     is

insufficient     to   support        a    conviction       under    §     924(j)    and,

therefore, the district court erred in denying his motion for

judgment of acquittal. Further, he argues that the court erred

in    interpreting    §   924(j)     to     require   a    mandatory       consecutive

sentence.




                                            6
                                    A.

    Bran couches his challenge to his conviction under § 924(j) 1

as a challenge to the sufficiency of the evidence. We review a

challenge to the sufficiency of the evidence de novo, United

States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), and we must

sustain the verdict if there is substantial evidence, viewed in

the light most favorable to the government, to support it, Burks

v. United States, 437 U.S. 1, 17 (1978). Substantial evidence is

evidence    that   a   reasonable   finder   of   fact   could   accept     as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt. Alerre, 430 F.3d at 693. A

defendant   bringing     a   sufficiency   challenge     “must   overcome    a

heavy burden,” United States v. Hoyte, 51 F.3d 1239, 1245 (4th

Cir. 1995), and reversal for insufficiency must “be confined to

cases where the prosecution’s failure is clear,” Burks, 437 U.S.

at 17.




    1
       The appeal in this case was, at the very least, muddled.
Throughout his appeal, Bran argued he had been convicted under §
924(c), until his rebuttal at oral argument when he argued for
the first time his conviction was under § 924(j). The government
appeared to argue in its brief that Bran had been convicted of
both a violation of § 924(c) and § 924(j). However, at oral
argument the government stated that Bran had been convicted only
under § 924(j). Nevertheless, by the end of oral argument, both
sides agreed with the district court that Bran had been
convicted, if at all, under § 924(j).



                                     7
     In order to prove a violation of § 924(j), the government

must prove: “(1) the use of a firearm to cause the death of a

person and (2) the commission of a § 924(c) violation.” United

States   v.   Robinson,   275    F.3d       371,    378   (4th   Cir.   2001).    A

defendant can be convicted for aiding and abetting a § 924(j)

violation. See United States v. Foster, 507 F.3d 233, 246 (4th

Cir. 2007).

     We hold that the evidence is clearly sufficient to support

Bran’s conviction under § 924(j). The jury was presented with

substantial    evidence   from   which       to    find   that   Bran   aided   and

abetted the murder of Hernandez-Gonzalez through the use of a

firearm. As noted, the government presented evidence that Bran

commanded Soto and Cabello to murder Hernandez-Gonzalez, and he

provided them with a firearm to commit the murder. 2 Bran also

directed Arevalo to ensure the murder was successful.

     Despite    the   fact   that   Bran      generally      characterizes      the

challenge to his conviction under § 924(j) as a challenge to the

sufficiency of the evidence, his specific argument focuses more

narrowly on the jury verdict form and the effect of the special

interrogatory answer. Bran does not seriously contend that the

government failed to present adequate evidence for the jury to

     2
        When   Soto  and   Cabello  were   carrying  out Bran’s
instruction, this gun misfired, so they used Arevalo’s gun to
carry out Bran’s command to murder Hernandez-Gonzalez.



                                        8
convict him under § 924(j). Rather, he claims that the jury

actually acquitted him of the § 924(j) charge when it did not

check the box that corresponded to the fact that Bran aided or

abetted the use of a firearm on the special interrogatory. We

disagree.

       As an initial matter, Bran’s argument ignores the jury’s

general verdict      of   guilt   on   Count      3.   Without     objection,      the

district    court   sufficiently       instructed       the   jury      as   to    the

elements required to sustain a conviction under § 924(j) and the

law of aiding and abetting under § 2. With those instructions,

the jury found Bran guilty of aiding and abetting the “Use of a

Firearm During a Crime of Violence Causing Death to Another.”

       While the jury’s general guilty verdict alone is sufficient

to uphold Bran’s § 924(j) conviction, the jury’s special finding

regarding “caused a firearm to be discharged” further supports

the    §   924(j)   conviction.    In       the   context     of    the      evidence

presented at trial, the jury’s finding of “caused a firearm to

be    discharged”   necessarily    includes        a   finding     of   “use      of   a

firearm.” See Smith v. United States, 508 U.S. 223, 240 (1993)

(broadly defining “use” of a firearm for purposes of § 924(c)).




                                        9
     For    the    foregoing    reasons,     we   affirm    Bran’s    Count   3

conviction. 3

                                       B.

     Bran   also    argues     that   even   if   we   affirm   his   §   924(j)

conviction, the district court erred by treating his sentence

for Count 3 as a mandatory consecutive sentence. We review this

issue de novo. United States v. Lighty, 616 F.3d 321, 370 (4th

Cir. 2010).

     All but one circuit court to consider this issue have held

that a sentence imposed for a violation of § 924(j) must run

consecutively to other sentences because Congress intended that

punishment imposed for a § 924(j) violation be subject to the

consecutive sentence mandate of § 924(c). 4 See United States v.

Berrios, 676 F.3d 118, 143 (3d Cir. 2012) (“[B]ecause a § 924(j)

sentence is imposed on a defendant for violating subsection (c),

     3
       Bran also argues that the district court erred by denying
his motion for judgment of acquittal as to each count of
conviction because the evidence is insufficient to support a
finding that he was involved in an enterprise engaged in
racketeering activity. We hold that the evidence is more than
sufficient for the jury to convict on all counts. Bran further
contends that the court erred in denying his motion to exclude
the government’s expert testimony regarding the criminal street
gang MS-13. We hold that the court did not abuse its discretion
in admitting the expert testimony. See United States v. Wilson,
484 F.3d 267, 273 (4th Cir. 2007) (noting abuse of discretion
standard).
     4
       While these circuits may have differed in their view of §
924(j), they all agree on this point.



                                       10
such a sentence is ‘imposed under’ subsection (c).”); United

States v. Battle, 289 F.3d 661, 666 (10th Cir. 2002) (“The plain

meaning of the words used in § 924(j) unequivocally provide that

if the evidence shows a violation of § 924(c) . . ., a district

court   must   impose      a   consecutive         sentence     over    and    above    the

punishment prescribed for the violent crime.”); United States v.

Allen, 247 F.3d 741, 769 (8th Cir. 2001) (“Although § 924(j)

does    not    explicitly         contain         the   same      express       mandatory

cumulative     punishment       language          as    found     in    §     924(c),    it

incorporates      §    924(c)     by    reference        without       disclaiming      the

cumulative punishment scheme which is so clearly set out in §

924(c).”), vacated on other grounds, 536 U.S. 953 (2002); see

also United States v. Young, 561 F. App’x 85, 94 (2d Cir. 2014)

(holding that § 924(j) “incorporates the penalty enhancements of

§ 924(c)”), cert. denied, 135 S. Ct. 387 (2014), and sub nom.

Chambliss v. United States, 135 S. Ct. 388 (2014).

       Only the Eleventh Circuit has held to the contrary. United

States v. Julian, 633 F.3d 1250, 1253 (11th Cir. 2011). Bran

argues that we should follow Julian, which held that a district

court has discretion to decide whether to impose a concurrent or

consecutive sentence for a § 924(j) violation. Julian, 633 F.3d

at     1253–56.       We   find        the    Eleventh          Circuit’s       reasoning

unpersuasive.



                                             11
     When interpreting a statute, we apply its plain language,

unless the result would be absurd. Lamie v. United States Tr.,

540 U.S. 526, 534 (2004). We also consider the specific context

in which that language is used, and the broader context of the

statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997). Here, the plain language of § 924(j) does not expressly

answer the question of whether any term of imprisonment imposed

thereunder    must      be   consecutive.     However,     the   language     itself

suggests that such a sentence must be consecutive, and to read §

924(j) otherwise would create an absurd result.

     Section 924(j)(1) reads: “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 . . . be punished by death 5 or by imprisonment for any

term of years or for life.” (emphasis added). At a minimum, the

inclusion    of   the    language   “in     the   course    of   a   violation   of

subsection (c)” indicates that § 924(c) plays a role in a §

924(j) offense and, to understand that role, we must consider §

924(j) in the context of § 924(c).

        Section 924(c) sets out the elements required to violate

that section. Additionally, § 924(c) sets out the nature of the


     5
          The government did not seek the death penalty in this
case.



                                         12
punishment thereunder; such punishment must be consecutive. 18

U.S.C.       §    924(c)(1)(D)(ii).            No     one,     including      Bran,       contests

those    points.            Viewed    in    this     light,      “[i]t   takes       no   special

insight or leap of logic to conclude that the central reason for

Congress’s choice of language in writing [§ 924(j)] – ‘during

the course of a violation of [§ 924(c)]’ – was to ensure that

separating            out    subsection        (j)      from    subsection      (c)       did   not

deprive the law of a coherent sentencing scheme, the heart of

which is the consecutive sentence mandate.” Berrios, 676 F.3d at

141.

       Further, because of the inclusion of the § 924(c) language,

to prove a violation of § 924(j), the government must prove that

a defendant also committed a violation of § 924(c). See United

States       v.       Smith,     452       F.3d      323,      335–36    (4th    Cir.      2006).

Accordingly, a defendant who violates § 924(j) by definition

violates         §     924(c),       and    would       necessarily      face    a    mandatory

consecutive sentence under § 924(c) if it had been charged as a

freestanding offense. Therefore, to read § 924(j) as not subject

to the consecutive sentence mandate of § 924(c) would mean that

a defendant convicted under § 924(j) would face a more lenient

sentencing scheme – under which a defendant’s sentence would not

have    to       be    consecutive         –   simply       because,     in   the     course     of

violating § 924(c), he murdered someone. To read § 924(j) in

this way would give rise to a truly absurd result with perverse

                                                   13
incentives; a defendant facing life or a term of years could

create a more favorable sentencing environment for himself by

committing   a   murder   during    his   commission    of    the    §   924(c)

offense. See Berrios, 676 F.3d at 141; Battle, 289 F.3d at 668;

Allen, 247 F.3d at 769. It is “highly ‘unlikely that Congress,

which    clearly   intended    to     impose     additional         cumulative

punishments for using firearms during violent crimes in cases

where no murder occurs, would turn around and not intend to

impose cumulative punishments in cases where there are actual

murder victims.’” Berrios, 676 F.3d at 141 (quoting Battle, 289

F.3d at 668); see also Allen, 247 F.3d at 769. 6

                                    III

     For   the   foregoing   reasons,     we   affirm   the   judgments     of

conviction and sentence.

                                                                      AFFIRMED




     6
        Of course, Congress could legislate that a sentence
imposed for a violation of § 924(j) need not be consecutive.
However, in the absence of clear language or context, we should
not presume they intended such an anomalous and absurd result.
See Berrios, 676 F.3d at 141 (“In light of the statutory scheme
and purpose shared by subsection (c) and subsection (j), we
simply cannot impute a contradictory intent to Congress without
some underlying rationale.”).



                                    14
KING, Circuit Judge, dissenting in part:

     Because the district court was entitled to sentence Bran on

Count III to something other than a mandatory consecutive life

sentence, I respectfully dissent.             In affirming Bran’s sentence,

my friends in the majority rely on the erroneous conclusion that

18 U.S.C. § 924(c) requires a consecutive sentence on Bran’s

§ 924(j)    conviction.       As    explained    below,      nothing    in       either

§ 924(c) or § 924(j) mandates such a ruling.                  I would therefore

vacate Bran’s sentence on Count III and remand.

     The    relationship      between     § 924(c)     and    § 924(j)       is    not

insignificant — each criminalizes a firearm offense occurring

during     the   commission    of    a   crime   of    violence        or    a    drug

trafficking offense.       Notwithstanding those two shared elements,

§ 924(j) has a third and independent element (conduct causing

death).      The penalty provisions of § 924(c) and § 924(j) are

also distinct.      Of importance in that regard, a sentence under

§ 924(c) must run consecutively to any other sentence.                       See 18

U.S.C. § 924(c)(1)(D)(ii) (the “consecutive sentence mandate”).

The consecutive sentence mandate applies, however, to § 924(c)

offenses    only,   as   stated     therein:     “no   term    of   imprisonment

imposed on a person under this subsection shall run concurrently

with any other term of imprisonment imposed on the person.”                        Id.

(emphasis added); see United States v. Julian, 633 F.3d 1250,



                                         15
1253 (11th Cir. 2011) (ruling that consecutive sentence mandate

not applicable to § 924(j) offense).

     It is now undisputed that, on Count III, Bran was convicted

of violating § 924(j), an offense resulting in death “in the

course of” a § 924(c) violation.        18 U.S.C. § 924(j). 1   The

alternative punishments authorized by § 924(j) — death, life, or

a term of years — do not refer to the consecutive sentence

mandate.     See id. 2   Because a § 924(j) offense occurs in the

course of a § 924(c) violation, however, the majority rules that

the consecutive sentence mandate must be applied to a § 924(j)

     1
       Prior to oral argument, Bran and the prosecution disagreed
over whether Bran had been convicted of a § 924(c) offense or a
§ 924(j) offense.      That issue traced to the duplicitous
indictment in this case, which alleged § 924(c) and § 924(j)
offenses in a single count — Count III.        In briefing, Bran
challenged his Count III conviction on the ground that the jury
had acquitted him of the § 924(j) offense and convicted him of
violating § 924(c) only. At oral argument, Bran abandoned that
position and agreed that he was convicted under § 924(j).
     2
         Pursuant to § 924(j) of Title 18:

     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 [18
         U.S.C. §] 1111), be punished by death or by
         imprisonment for any term of years or for life.

            (2) if the killing is manslaughter (as defined in
         [18 U.S.C. §] 1112), be punished as provided in that
         section.

18 U.S.C. § 924(j).



                                 16
offense to avoid an “absurd result.”                     Ante at 12.          The majority

relates     that       a       defendant      convicted        under     § 924(j)       would

otherwise    “face         a    more   lenient     sentencing          scheme”       than   one

convicted under § 924(c).                  Id. at 13.          For reasons I view as

compelling, I reject the majority’s ruling.

                                              1.

       First,     a    § 924(j)        offense     is   discrete       from      a   § 924(c)

offense,    and       must     be   treated    accordingly.            As   we   recognized

years ago, a § 924(j) offense is a separate violation of federal

law.     See United States v. Johnson (Shaheem), 219 F.3d 349 (4th

Cir. 2000).        Judge Luttig’s opinion for the Court in that case

spelled out the elements of a § 924(j) offense:                               “(1) a drug

trafficking crime committed, (2) the use of a firearm during the

commission of the trafficking crime, and (3) malice aforethought

in causing the death of the victim in relation to the commission

of the crime.”             Id. at 358 n.7.              Soon thereafter, in United

States v. Robinson, Judge Wilkins’s opinion treated a § 924(j)

violation in a like manner.                   See 275 F.3d 371, 379 (4th Cir.

2001).

       Nevertheless, the majority argues that its ruling today —

that the consecutive sentencing mandate applies to a § 924(j)

offense — garners support from four of our sister circuits.

Those    decisions,            however,    analyzed      the    relationship          between

§ 924(c) and § 924(j) in a fundamentally different manner than

                                              17
does the majority.          Two of those courts ruled that § 924(j) is a

sentencing factor only, and not a separate offense.                        See United

States v. Battle, 289 F.2d 661, 667 (10th Cir. 2002) (“Section

924(j) does not set forth a discrete crime.”); United States v.

Allen,    247     F.3d     741,   769   (8th    Cir.       2001)    (concluding    that

“§ 924(j)    is       fairly   interpreted     as     an    additional    aggravating

punishment for the scheme already set out in § 924(c)”).                           Two

other    courts       of   appeals    failed    to    definitively       resolve   the

discrete offense issue.              See United States v. Berrios, 676 F.3d

118, 140 (3d Cir. 2012) (“Although the government concedes that

§ 924(j) establishes a discrete crime from § 924(c), this has no

bearing on our decision.”); see also United States v. Young, 561

F. App’x 85, 94 (2d Cir. 2014) (unpublished) (observing that

§ 924(j) “likely indicates that it is a stand-alone offense”),

cert. denied, 135 S. Ct. 387 (2014).

     My position in this regard is simple.                         I would apply the

reasoning of the Eleventh Circuit in Julian, which is consistent

with our decisions in Johnson (Shaheem) and Robinson.                         See 633

F.3d at 1254.          That is, § 924(j) constitutes a discrete offense

from § 924(j), and thus can only be punished under § 924(j).

                                          2.

     The foregoing discussion leads to my second point:                       Because

§ 924(j)    is    a    discrete      offense   from    a    § 924(c)     violation,   a

sentence under § 924(j) does not produce an absurd result.                         And,

                                          18
absent an express statutory mandate to the contrary, a federal

criminal     offense    does     not   require    either    a    concurrent          or    a

consecutive sentence.           That decision with respect to sentencing

is reserved to the discretion of the district court.                            See 18

U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed at the

same   time    run    concurrently      unless    the    court       orders     or    the

statute mandates that the terms are to run consecutively.”); see

also United States v. Johnson (Keith), 138 F.3d 115, 119 (4th

Cir. 1998) (determining that § 3584(a) “gives district courts

discretion     in     choosing     concurrent     or     consecutive       terms          of

imprisonment”).         Nonetheless,      the    majority       cites    the    Supreme

Court as foreclosing application of the plain text of § 924(j).

Ante at 12 (citing Lamie v. United States Trustee, 540 U.S. 526

(2004)).      In its Lamie decision, however, the Court carefully

emphasized     that     “[i]t     is   well     established       that    ‘when       the

statute’s language is plain, the sole function of the courts —

at   least    where    the   disposition      required     by    the    text    is    not

absurd — is to enforce it according to its terms.’”                       Lamie, 540

U.S. at 534 (quoting Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1, 6 (2000)).                       Because § 924(j)

does   not    require    a   particular       disposition,      we     should   simply

enforce its plain terms.

       In any event, applying the plain terms of § 924(j) does not

produce an absurd result.              As the government conceded at oral

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argument, the potential availability of a death penalty is the

reason a prosecutor would pursue a charge under § 924(j).                                   See

Julian, 633 F.3d at 1256 (“The main point of section 924(j) is

to extend the death penalty to second-degree murders that occur

in the course of violations of section 924(c).”).                                   To me, it

defies    common       sense     to   contend      that   a   death   sentence         for    a

§ 924(j) offense creates a more lenient sentencing scheme than a

non-death sentence under § 924(c). 3                  Similarly, I readily reject

the   majority’s           contention       that    § 924(j)     creates            “perverse

incentives” for an aspiring criminal.                     Ante at 13-14.               To the

contrary,       a    person      contemplating        commission       of       a    § 924(c)

offense    is       not   likely      to   commit   murder     merely      to       avoid   the

consecutive sentence mandate.

      On this record, we are obliged to presume that Congress

properly assessed each of the foregoing considerations when it

enacted § 924(j).              See Russello v. United States, 464 U.S. 16,

23 (1983) (“Where Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and   purposely           in   the     disparate     inclusion        or    exclusion.”)


      3
       I note that the death penalty is potentially available
under § 924(c)(5) for causing death by use of armor piercing
ammunition.   See 18 U.S.C. § 924(c)(5)(B)(i). Bran, however,
was not charged with any such offense.



                                              20
(brackets       omitted).         Rather    than        second-guess        Congress   and

judicially amend § 924(j) to include the consecutive sentence

mandate,    I    would   simply      rule        that    § 924(j)       —    rather    than

§ 924(c) — controls Bran’s sentence for the § 924 offense in

Count III.

     Pursuant       to      the     foregoing,          I     would     vacate     Bran’s

consecutive       life   sentence      on    Count          III   and   remand.        The

sentencing court should be entitled to exercise its informed

discretion, pursuant to 18 U.S.C. § 3584, to impose a sentence

on Count III that is either consecutive or concurrent.

     I respectfully dissent.




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