On January 14, 2026, the United States Supreme Court decided the case of Barrett v. U.S. The principal issue related to N.J.S.A. 2C:1-8 concerned the constitutionality of multiple punishments for an offense and its lesser-included offense.
Justice Jackson wrote for the Court in relevant part: This case concerns the relationship between two provisions of 18 U. S. C. §924: subsection (c)(1)(A)(i), which criminalizes using, carrying, or possessing a firearm in connection with a federal crime of violence or drug trafficking crime, and subsection (j), which prescribes different penalties—including, in certain circumstances, capital punishment—when “a violation of subsection (c)” causes death. The question presented is whether a single act that violates both provisions may yield two convictions—one under each provision—or only one. The Second Circuit held that one such act may yield two convictions. The Second Circuit acknowledged that subsection (c)(1) and subsection (j) qualify as the same offense under the test in Blockburger v. United States, 284 U. S. 299. But it believed that, as construed in Lora v. United States, 599 U. S. 453, the two provisions are separate offenses for which Congress has clearly authorized cumulative punishments. Because the Second Circuit’s decision deepened a split among the Courts of Appeals, this Court granted certiorari.
Congress did not clearly authorize convictions under both §§924(c)(1)(A)(i) and (j) for a single act that violates both provisions. One act that violates both provisions therefore may spawn only one conviction. The part of the Second Circuit’s judgment that held otherwise is reversed.
When enacted, §924(c) “made it a discrete offense” to use or carry a firearm in connection with a predicate federal crime of violence or drug trafficking crime. Abbott v. United States, 562 U. S. 8, 12. A §924(c) violation triggers a mandatory minimum sentence of at least five years. Congress later added §924(j) to provide a different penalty scheme for §924(c) violations that cause death. Section 924(j) has no mandatory minimums; it instead authorized significant maximum sentences, including the death penalty or life in prison when the underlying violation is murder.
The question in this case is whether subsection (j) also increased the number of convictions (rather than just the maximum sentence) that can result from a fatal violation of §924(c)(1)(A)(i). The Court re solves the question as a matter “of statutory construction,” because “whether punishments are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Whalen v. United States, 445 U. S. 684, 688. And the Court undertakes this exercise in statutory construction with a thumb on the scale in the form of the Blockburger presumption, which instructs that Congress ordinarily does not intend to punish the same offense under two different statutes. It is undisputed that §924(c)(1)(A)(i) and §924(j) define the same offense per Blockburger. But the Court has said that the Blockburger presumption can yield to a plainly expressed contrary intent. This case therefore turns on whether Congress plainly expressed an intent to overcome the Blockburger presumption by authorizing multiple convictions for one act that violates both §924(c)(1)(A)(i) and §924(j). To ascertain such intent, the Court turns to statutory text, structure, and (for those who accept its help) legislative history.
The text of §924 suggests strongly, perhaps conclusively, that Congress did not disavow Blockburger here. Congress included Blockburger-surmounting language twice within subsection (c) itself: It mandated that a §924(c)(1) conviction must be “in addition to the punishment provided for” the predicate, and it also mandated that a conviction under §924(c)(5)—for using or carrying armor piercing ammunition—must be “in addition to the punishment provided for” the predicate “or conviction under” §924. The Court has elsewhere called such “in addition to” language “crystal clear” evidence of a legislature’s intent to overcome Blockburger. But Congress used no similar language with respect to the interplay between subsection (c)(1) and sub section (j).
The phrase “perhaps conclusively” is an oxymoron. “Perhaps” expresses uncertainty. “Conclusively” expresses certainty.
The argument that subsection (c)’s consecutive-sentence mandate textually authorizes dual convictions misunderstands the inquiry. Blockburger addresses the permissibility of multiple convictions, not just multiple sentences; the assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes, where punishment means a criminal conviction and not simply the imposition of sentence. Accordingly, §924(c)’s consecutive-sentence mandate simply speaks past the question in this case: whether one act may result in two convictions. Before the consecutive-sentence mandate gains any relevance, a court must first determine whether two punishments (convictions) may be imposed at all. Only if two convictions may coexist does a court consult the consecutive-sentence mandate to arrange properly the resulting sentences.
The argument that subsection (c)(1) and subsection (j) have different focuses and thus target different wrongs that may be punished cumulatively is equally unavailing. The conduct (or result) that differentiates a greater offense from its lesser included offenses will often introduce some new focus, and that reality cannot do much to overcome the Blockburger presumption if the presumption is to retain its force
The statute’s operation and structure provide no indication Congress expressed any will to overcome Blockburger. Lora answers any concern that defendants convicted of and sentenced under subsection (j) will be rewarded with more lenient sentences than those convicted of the less serious subsection (c)(1) offense. There the Court explained that subsection (j) eschews mandatory penalties in favor of sentencing flexibility and reflects the seriousness of the offense using a different approach than subsection (c)’s mandatory minimum penalties—by authorizing the death penalty for murder and the same harsh punishment that the Federal Criminal Code prescribes for other manslaughters. If prosecutors fear that a subsection (j) sentence will dip below what subsection (c)(1)(A)(i) would otherwise guarantee, they are free to choose subsection (c)(1)(A)(i)’s low-end rigidity over subsection (j)’s high-end flexibility. Neither the physical separation in the U.S. Code between subsection (c)(1) and subsection (j), nor the fact that subsection (j)’s sentencing scheme operates without reference to subsection (c)’s, overcomes the Blockburger presumption. See Ball v. United States, 470 U. S. 856. If offenses share elements but have comprehensive, independently operating penalty schemes, that suggests Congress intended to place in front of prosecutors a menu, not a buffet. Any analogy to Garrett v. United States, 471 U. S. 773, in which the Court found Blockburger overcome even without express statutory language disclaiming the presumption, is inapt. Garrett involved a continuing criminal enterprise alleged to have spanned more than five years, and the continuing nature of the offense played a decisive role in the case. Garrett distinguished the facts there from what is involved here: the classic relation of the lesser included offense to the greater offense, wherein the very same conduct violates two statutes.
The line about Congress intending a menu as opposed to a buffet is a good one. It would be unfair to allow prosecutors to pick and choose among the harshest elements of two statutes as opposed to choosing one statute or the other.
