Can a Judge Offset a 924(c) Gun Sentence? Dean v. United States

A federal judge may give a very short sentence, even one day, on the other counts in a case to make up for a long mandatory gun sentence under 18 U.S.C. § 924(c). The Supreme Court said so on April 3, 2017, in Dean v. United States, 581 U.S. 62 (2017). For anyone facing a § 924(c) count, that gives the defense room to argue for a fairer total sentence.

Update (October 2026): Part of the background below has changed. Before the First Step Act of 2018, a second § 924(c) count in the same case carried an extra 25-year mandatory minimum. Section 403 of the Act changed that. Now the 25-year term applies only when the new gun crime happens after an earlier § 924(c) conviction has become final. See 18 U.S.C. § 924(c)(1)(C). The change does not reach people who were already sentenced before December 21, 2018 (Pub. L. 115-391, § 403(b)). Dean itself is still good law.

What § 924(c) does

Section 924(c) makes it a separate crime to use or carry a gun during a crime of violence or a drug trafficking crime, or to possess a gun to further one of those crimes. The crime the gun is tied to is called the "predicate" offense.

A § 924(c) conviction carries a mandatory minimum, which is the lowest sentence the law allows. For a first conviction, it is 5 years. That time must run "consecutively," meaning after any other prison term, including the sentence for the predicate crime. 18 U.S.C. § 924(c)(1)(A), (D)(ii).

After Dean, someone convicted of Hobbs Act robbery (robbery that affects interstate commerce) and a § 924(c) count could get as little as one day on the robbery count. The 924(c) sentence would then run after that one day.

What happened in Dean

Levon Dean and his brother robbed two drug dealers. During each robbery, Dean's brother threatened and assaulted the victim with a gun, while Dean searched the place for valuables. Dean was convicted of multiple robbery and firearm counts (see also our post on burglary and the ACCA). Those included two counts of possessing a firearm to further a crime of violence, in violation of § 924(c).

Under the law at that time, a first § 924(c) conviction carried a 5-year mandatory minimum, and a second one carried an additional 25-year mandatory minimum. 18 U.S.C. § 924(c)(1)(A)(i), (C)(i). For Dean, that meant a 30-year mandatory minimum, served after and on top of whatever sentence he got on the other counts.

At sentencing, Dean asked the judge to consider those long mandatory minimums when setting the sentences on his other counts. He asked for concurrent one-day sentences on those counts. The judge said he would have agreed, but he believed § 924(c) did not allow a sentence of 30 years plus one day.

On appeal, Dean argued the judge was wrong to think he could not go below the Guidelines range because of the § 924(c) mandatory minimums. The Eighth Circuit said its own earlier cases blocked that argument, and that his sentence was otherwise substantively reasonable. 810 F.3d 521.

What the Supreme Court held

In a unanimous opinion by Chief Justice Roberts, the Court reversed and sent the case back. It held that § 924(c) does not stop a judge from considering the mandatory gun sentence when deciding the sentence for the predicate crime.

The Court's reasons, in plain terms:

• Judges have long had wide freedom over what they may consider at sentencing. Pepper v. United States, 562 U.S. 476 (2011).
• Judges keep that freedom even though federal law now lists factors they must weigh.
• The factors in 18 U.S.C. § 3553(a) apply to each count, not only to the total sentence. Those factors include "the nature and circumstances of the offense and the history and characteristics of the defendant," and the need for the sentence to serve four aims: just punishment, deterrence, protection of the public, and rehabilitation.
• The § 3553(a) factors are used to set the length of each separate prison term (18 U.S.C. § 3582(a)) and the total prison term when there are several counts (18 U.S.C. § 3584(b)). As a general rule, these laws let a judge sentencing one count consider the sentences on the other counts.
• The government argued that judges should set the term for each count on its own, ignoring the other counts, and look at the other sentences only when setting the total. The Court said nothing in the law requires that approach. There is no reason the § 3553(a) factors cannot be used for each count in a multi-count case.
• The government's reading also clashes with the text of these laws and with its own practice in "sentencing package" cases, where the counts are treated as connected. Greenlaw v. United States, 554 U.S. 237 (2008).
• Section 924(c) says the gun sentence is "in addition to" the predicate sentence and must run consecutively. Neither rule says how long the predicate sentence must be. A 30-year term followed by a one-day term still satisfies both.
• When Congress wants to bar this kind of offset, it says so. The aggravated identity theft statute, 18 U.S.C. § 1028A(b)(3), does. It says a court "shall not in any way reduce the term to be imposed" for the predicate crime "so as to compensate for, or otherwise take into account," the separate identity theft term. Section 924(c) has no such language. The Court noted that "drawing meaning from silence is particularly inappropriate" when Congress has shown it knows how to speak directly. Kimbrough v. United States, 552 U.S. 85 (2007).

What this means for you

If you or a family member faces a § 924(c) count, the judge can weigh the mandatory gun sentence when setting the sentence on the other counts. Your lawyer can ask for a much shorter sentence on those counts. The judge does not have to grant it, so the request should be made in writing before sentencing, in the sentencing memorandum, and explained with the § 3553(a) factors.

If the judge refuses because he believes the law does not allow it, that can be raised on appeal. In a federal criminal case, the notice of appeal is usually due within 14 days after the judgment is entered. Fed. R. App. P. 4(b)(1)(A).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.