Post-Lora Double Jeopardy: Fifth Circuit Bars Cumulative Convictions Under 18 U.S.C. § 924(j) and Its Predicate Offense (e.g., § 1201 Kidnapping Resulting in Death)

Introduction

In United States v. Sanders, No. 15-31114 (5th Cir. Mar. 27, 2025), the Fifth Circuit addressed a far-reaching double-jeopardy question at the intersection of the federal firearm-homicide statute, 18 U.S.C. § 924(j), and a predicate “crime of violence”—here, kidnapping resulting in death, 18 U.S.C. § 1201(a). The panel vacated the § 924(j) conviction and sentence as multiplicitous when paired with § 1201(a), concluding that after the Supreme Court’s decision in Lora v. United States (2023), § 924(j) does not carry § 924(c)’s express authorization of cumulative punishment and therefore cannot be stacked with the predicate offense when the Blockburger elements test is not satisfied. The court otherwise affirmed Sanders’s convictions and (commuted) sentences on the kidnapping count and rejected a host of trial and penalty-phase challenges.

The procedural posture is notable: Sanders had received two death sentences after a capital trial for the kidnapping and murder of a twelve-year-old child. During the appeal, President Biden commuted those sentences to life without parole. The Fifth Circuit held that commutation did not necessarily moot the appeal and proceeded to resolve the issues necessary to the judgment, most prominently the double-jeopardy claim.

Summary of the Opinion

Double jeopardy and multiplicity: The court held that convictions and cumulative punishments under § 924(j) and its predicate offense (§ 1201(a) kidnapping resulting in death) violate the Double Jeopardy Clause where Congress has not clearly authorized cumulative punishment and the offenses fail the Blockburger test. The court vacated Count Two (§ 924(j)).
Competency to stand trial: No abuse of discretion in declining to order a sua sponte competency hearing under 18 U.S.C. § 4241(a). The record showed no trial decompensation, no disruptive demeanor, and no expert opinion of incompetence.
Custodial statements: Most statements were admissible. Sanders’s topic-limited invocations of counsel were honored during two interviews; for a later interview, the court assumed arguendo an invocation error but held any error harmless beyond a reasonable doubt because the contested statements were cumulative.
Jury selection and composition: Sixth Amendment fair-cross-section and Jury Selection and Service Act challenges failed. Absolute disparities around 10–11% do not suffice; “young adults” are not a distinctive group under circuit precedent; use of voter rolls and four-year refill cycles are statutorily authorized.
Death-qualification and religion: Death-qualification is authorized (28 U.S.C. § 1866(c)(2); Wainwright v. Witt) and does not violate the Sixth or First Amendments. Limited voir dire questions about religion’s effect on juror duties were within the court’s discretion.
For-cause strike on the questionnaire alone: No error (and certainly no abuse of discretion) in striking a venire member based on written answers demonstrating inability to follow the law in a capital case.
Sufficiency of evidence: The kidnapping conviction under § 1201(a) was supported, including the “held for ransom, reward or otherwise” element; the jury could infer a purpose (e.g., silencing the sole eyewitness). The jury’s findings on statutory aggravators (occurrence during kidnapping; substantial planning and premeditation; youth vulnerability) were supported.
Victim-impact evidence: Admission of testimony from teachers and reading from the victim’s journals was not plain error; non-family impact evidence can be permissible, and the presentation did not render sentencing fundamentally unfair.
Prosecutorial closing argument: No plain error; the remarks were tethered to the record or were permissible inferences; any misstatements were mitigated by instructions and the weight of the evidence.
Federal Death Penalty Act (FDPA) challenges: Facial and as-applied attacks on the FDPA failed under circuit precedent; proportionality review is not constitutionally required; the court found no passion/prejudice infecting the sentencing verdict.
Cumulative error: Rejected. Any arguable errors did not cumulatively deny a fair trial.

Analysis

Precedents Cited and Their Influence

Blockburger v. United States, 284 U.S. 299 (1932): Provides the “same-elements” test for multiplicity/double jeopardy—each offense must require proof of a fact the other does not. The court held § 924(j) (as charged) subsumes the predicate § 1201(a) elements, failing Blockburger.
Missouri v. Hunter, 459 U.S. 359 (1983): Even if Blockburger would bar cumulative punishments, they are permitted if Congress clearly authorizes them. Central to the court’s inquiry whether Congress authorized cumulative punishment for § 924(j) alongside § 1201(a). It did not.
Whalen v. United States, 445 U.S. 684 (1980): Where offenses are the same under Blockburger, cumulative sentences are not permitted unless Congress “elsewhere specially authorized” them. The linchpin for the court’s conclusion that § 924(j) lacks such authorization.
Lora v. United States, 599 U.S. 453 (2023): Held § 924(j) does not incorporate § 924(c)’s consecutive-sentencing mandate; courts have discretion to impose concurrent or consecutive sentences for § 924(j). This severed § 924(j) from § 924(c)’s express cumulation language and undercut prior circuit approaches. The Fifth Circuit used Lora to confirm that § 924(j) provides no textual basis for cumulative punishments with other counts.
United States v. Gonzales, 841 F.3d 339 (5th Cir. 2016): Found insufficient indication of congressional intent to impose cumulative sentences for both § 924(c) and § 924(j) for the same conduct; today’s opinion distinguishes but harmonizes with Gonzales by similarly requiring clear authorization.
United States v. Singleton, 16 F.3d 1419 (5th Cir. 1994): Upheld cumulative punishment for § 924(c) and the predicate offense because § 924(c) itself expressly commands cumulation. The court explains Singleton does not control § 924(j) because § 924(j) lacks that command.
Davis v. United States, 512 U.S. 452 (1994), and Smith v. Illinois, 469 U.S. 91 (1984): Govern Miranda invocations; a suspect must clearly request counsel and post-request answers cannot be used to retroactively muddy a clear invocation. The court assumed arguendo error in narrowing Sanders’s invocation but found it harmless.
United States v. Ivy, 929 F.2d 147 (5th Cir. 1991): Supports the legality of topic-limited invocations and officers changing subject to honor them. Used to uphold admission of statements from the first interview.
United States v. Mitchell, 709 F.3d 436 (5th Cir. 2013), and related competency cases: Confirm that mental illness and even brain disorder are not dispositive of competency; the court applied the 18 U.S.C. § 4241(a) “reasonable cause” framework and found no abuse of discretion.
United States v. Gooding, 473 F.2d 425 (5th Cir. 1973): Holds young adults (18–21) are not a “distinctive” group for fair-cross-section purposes. Binding and dispositive of Sanders’s youth-based jury claim.
Lockhart v. McCree, 476 U.S. 162 (1986), and Wainwright v. Witt, 469 U.S. 412 (1985): Ground the constitutionality and standard for death-qualification—jurors whose views would substantially impair duty may be excused.
Payne v. Tennessee, 501 U.S. 808 (1991): Victim-impact evidence is admissible unless it renders the proceeding fundamentally unfair; informs the court’s rejection of victim-impact challenges.
Berghuis v. Smith, 559 U.S. 314 (2010), and Fifth Circuit absolute-disparity cases: The court applied absolute disparity analysis and reaffirmed that disparities around 10–11% are inadequate to show Sixth Amendment underrepresentation in this circuit.
Jones v. United States, 527 U.S. 373 (1999): Confirms that the FDPA contains internal safeguards and that plain-error review applies; the court rejected FDPA attacks and proportionality review demands.
McCleskey v. Kemp, 481 U.S. 279 (1987): Statistical evidence alone does not establish unconstitutional arbitrariness in a particular case; used to reject as-applied FDPA arbitrariness claims.

Legal Reasoning

1) Double Jeopardy and the § 924(j)–§ 1201(a) Pairing

The core holding rests on two interlocking propositions.

Blockburger failure: As charged, the § 924(j) count required proof of a “crime of violence”—specifically, § 1201(a) kidnapping resulting in death. Proving the § 924(j) count therefore required proving all elements of § 1201(a). Conversely, § 1201(a) did not require any fact that § 924(j) (as charged) did not already require. That asymmetry fails Blockburger because both offenses must have at least one unique element the other does not. Here, only § 924(j) had additional elements (firearm use and a homicide); § 1201(a) had none that were not already subsumed into § 924(j) via the predicate-crime element.
No express congressional authorization: Under Hunter and Whalen, even when Blockburger would bar cumulative punishment, Congress can override that default with a clear command. Section 924(c) has such a command (express consecutive sentencing “in addition to” any other sentence), which is why Singleton permitted cumulation for § 924(c) and its predicate. But Lora held that § 924(j) does not incorporate § 924(c)’s consecutive-sentencing mandate; “Congress plainly chose a different approach to punishment in subsection (j) than in subsection (c).” With § 924(j) standing alone, there is no textual authorization to stack punishments with the predicate offense.

Result: Count Two (§ 924(j)) was multiplicitous. The court vacated the § 924(j) conviction and sentence and otherwise affirmed.

2) Competency to Stand Trial

Applying 18 U.S.C. § 4241(a) and the three-factor framework (history of irrational behavior; demeanor at trial; prior medical opinion), the court found no abuse of discretion in declining a sua sponte competency hearing. Defense counsel’s ex parte note of “decompensating” lacked specifics; no outbursts occurred; four experts examined Sanders, and none opined he was incompetent; one explicitly observed competency. Mental illness and brain damage, without more, are not dispositive under circuit precedent.

3) Custodial Interrogations and Limited Invocations of Counsel

First interview (unrecorded): When Sanders stated he wanted a lawyer “before answering that question,” agents honored topic-limited invocations by changing subjects. Under Ivy and Davis, that is permissible.
Second interview (unrecorded): No invocation; statements admissible.
Third interview (recorded): Sanders invoked counsel when asked about “other people.” The court assumed arguendo that the officers improperly narrowed a clear invocation, but held the error harmless beyond a reasonable doubt: the later statements were cumulative of properly admitted statements from earlier segments and interviews and did not affect the verdict.

4) Jury Composition and Discovery

Sixth Amendment: Young adults are not a “distinctive” group (Gooding). With respect to African-Americans, absolute disparities of about 10–11% did not satisfy the second Duren prong under Fifth Circuit precedent.
JSSA: Use of voter registration lists and refilling master wheels every four years is expressly authorized by statute; the defendant showed no “substantial failure” to comply with the Act.
Discovery: Because the defendant could not satisfy the first or second Duren prongs, discovery aimed at systemic exclusion (third prong) was properly denied.

5) Death-Qualification and Religion

The court reaffirmed that district courts may excuse jurors whose views on capital punishment would “prevent or substantially impair” their ability to follow the law (Witt) and that 28 U.S.C. § 1866(c)(2) authorizes excusing jurors unable to render impartial service. Questions probing whether religious views would impede juror duties were permissible.

6) For-Cause Strike Based on Questionnaire

Whether reviewed de novo or for abuse of discretion, the strike was appropriate. The juror’s written answers—emphasizing that only God can judge, categorical opposition to the death penalty as equivalent to murder, skepticism of the justice system, and uncertainty about following instructions—demonstrated substantial impairment.

7) Sufficiency of the Evidence

Kidnapping “for ransom, reward or otherwise”: The “or otherwise” clause encompasses any purpose, lawful or not (Gooch; Webster). The jury could infer that Sanders abducted the child to silence the only eyewitness and to gain time and distance—satisfying “some purpose.”
Statutory aggravators: The evidence supported the aggravators found beyond a reasonable doubt: the death occurred during a kidnapping (§ 3592(c)(1)); substantial planning and premeditation (§ 3592(c)(9)); victim was particularly vulnerable due to youth (§ 3592(c)(11)).

8) Victim-Impact Evidence

Non-family witnesses (teachers) and excerpts from the victim’s journals did not render sentencing fundamentally unfair. Payne allows impact evidence showing the victim’s uniqueness; other circuits permit non-family impact witnesses, and nothing in the FDPA’s illustrative list limits victim-impact testimony to family members. No plain error.

9) Prosecutorial Argument

Under the two-step Fifth Circuit framework, the court found no improper remarks that undermined the verdict. The prosecutor’s references to the unknown “horrors” of the multi-day car trip were grounded in the record or reasonable inference; any arguably speculative flavor was mitigated by instructions and other evidence. Remarks about mental-health mitigation were tied to expert testimony and did not urge jurors to disregard mitigation evidence.

10) FDPA and Proportionality

The court rejected facial and as-applied challenges to the FDPA under binding precedent (Webster; Jones). Statistical arguments about arbitrariness cannot substitute for proof of unconstitutional influence in the defendant’s case (McCleskey). Proportionality review is not constitutionally required; the FDPA instead mandates appellate review for passion, prejudice, or arbitrary factors—standards the court found satisfied.

11) Cumulative Error

No accumulation of errors undermined the fairness of the proceedings.

Impact

Charging and trial strategy in the Fifth Circuit:
- After Sanders (and Lora), prosecutors should assume that pairing § 924(j) with its predicate “crime of violence” for the same conduct risks a multiplicity challenge unless Congress has clearly authorized cumulative punishment. The safer course is to charge either § 924(j) alone or the predicate homicide/violence count alone—or to plead in the alternative and seek the jury’s verdict on both but expect vacatur of one at judgment.
- Singleton remains good law for § 924(c) plus its predicate because § 924(c) expressly mandates cumulation. But § 924(j) is different: it permits concurrent or consecutive sentencing, lacks § 924(c)’s cumulation command, and cannot supply the clear-statement needed to overcome Blockburger where the predicate is subsumed by the § 924(j) proof.
- Remedy planning matters: If both counts go to verdict, be prepared for post-trial election or vacatur. In Sanders, the court vacated the § 924(j) count; future cases may see the government asked to elect which conviction to retain.
Pending and collateral cases: Defendants with stacked § 924(j) and predicate convictions in the Fifth Circuit have a strong pathway to seek vacatur of the multiplicitous count. Expect renewed multiplicity litigation, particularly in cases charged pre-Lora.
Miranda practice: The opinion reinforces that topic-limited invocations are valid and must be honored by changing subject; attempts to “clarify” an arguably unambiguous request for counsel are risky and may trigger exclusion—though harmless-error review can salvage verdicts if the record is otherwise strong.
Jury plan litigation: The court’s reliance on absolute disparity and adherence to Gooding signal little appetite for reworking fair-cross-section doctrine in the Fifth Circuit absent en banc or Supreme Court change. Routine use of voter rolls and four-year wheel refills remains compliant with the JSSA.
Death-qualification and religious questioning: The decision confirms that federal courts may death-qualify juries and ask targeted questions about whether religious beliefs would prevent following the law—so long as the aim is impartiality, not viewpoint suppression.
Concurring opinion on clemency: Judge Oldham’s historical essay critiques recent presidential commutations and surveys the pardon power’s pedigree. It does not alter the legal holdings but may be cited in future scholarship or debates on clemency’s scope and norms.

Complex Concepts Simplified

Blockburger test: A double-jeopardy rule that asks whether each of two offenses requires proof of a fact the other does not. If one offense is wholly included within the other (as charged), punishing both is presumptively barred unless Congress clearly says otherwise.
Multiplicity: Charging the same act as multiple offenses in a way that risks multiple punishments for the same offense. The usual remedy is to vacate one conviction/sentence.
§ 924(c) vs. § 924(j): Section 924(c) criminalizes using/carrying a firearm during a crime of violence and commands consecutive sentencing “in addition to” the sentence for the predicate. Section 924(j) punishes causing death through § 924(c) conduct but, after Lora, does not import § 924(c)’s mandatory cumulation; courts have discretion to run § 924(j) sentences concurrently or consecutively.
Whalen/Hunter congressional-authorization principle: Even if two offenses overlap under Blockburger, cumulative punishments are permitted if Congress clearly authorizes them. Absent such a clear statement, courts cannot stack sentences.
Miranda invocation to counsel: If a suspect clearly asks for a lawyer, interrogation must stop. A suspect may limit the request to specific topics; officers may continue on other topics if they honor the limits. Using post-invocation answers to reinterpret a clear request is forbidden (Smith v. Illinois).
Absolute disparity (jury composition): The difference between a group’s percentage in the jury-eligible community and its percentage on the qualified wheel/venire. In the Fifth Circuit, disparities around 10–11% have repeatedly been found insufficient to establish underrepresentation.
Death-qualification: Excluding jurors whose opposition to the death penalty would prevent or substantially impair their ability to follow the law. Its aim is impartiality, not juror homogeneity.
Harmless beyond a reasonable doubt: A strict standard for constitutional errors; the conviction may stand if the appellate court is convinced the error did not contribute to the verdict.
Victim-impact evidence: Evidence about who the victim was and the loss caused by the crime. Admissible unless so prejudicial that it renders sentencing fundamentally unfair.

Conclusion

United States v. Sanders is a consequential Fifth Circuit decision that realigns firearm-homicide prosecutions with the Supreme Court’s Lora framework and classic double-jeopardy doctrine. By holding that § 924(j) cannot be cumulatively punished with its predicate offense absent a clear congressional statement—and by vacating the multiplicitous § 924(j) conviction—the court sets a charging and sentencing template for future federal homicide cases in the circuit.

Beyond the headline holding, the court’s opinion provides durable guidance: topic-limited Miranda invocations are valid; competency hearings turn on concrete signs rather than diagnoses alone; fair-cross-section claims must clear a demanding absolute-disparity threshold; death-qualification remains firmly grounded in statutory and Supreme Court authority; and routine penalty-phase claims under the FDPA continue to face a high bar. The court’s methodical application of settled standards, coupled with its careful adoption of Lora’s statutory reading, provides both prosecutors and defense counsel a clear roadmap for litigating overlapping homicide and firearm charges going forward.

Key takeaway: In the Fifth Circuit, post-Lora, § 924(j) stands on its own. Without § 924(c)’s explicit cumulation language, it cannot be stacked with the predicate offense when Blockburger is not satisfied. Charge accordingly—or expect vacatur.