Hewitt v. United States - Felony Murder Conviction Vacatur

Notice: This opinion is subject to formal revision before public ation in the Atlantic and Maryland Re porters. Use rs are requested to noti fy the Clerk of the Court of any formal errors so that c orrections may be m ade before the bound volumes go to press. DISTRICT OF COLUM BIA COURT OF APP EALS No. 24 - CO - 0168 M ALIK J. H EWITT, A PPELLANT, V. U NITED S TATES, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (2017 - CF1 - 009418) (Hon. Neal E. Kravitz, Trial Judge) (Argued Novem ber 19, 2025 Decide d February 26, 2026) Adrian E. Madsen fo r appellant. Edward R. Martin, Jr., United States Attorney at the time the brief w as filed, with whom Chr isell en R. Kol b, Nicholas P. Colem an, Michael C. Liebman, and David Saybolt, Assis tant United States Attorneys, were on the brief, for appe llee. Before B ECKWITH and E ASTERLY, A ssociate Judges, and T HOMPSON, Senior Judge. E ASTERLY, Associate Judge: When a defendant is convicted of first - degree (felony) m urder and the underly ing fe lony, one of the se convictions must be vacated to avoid runnin g afoul of the Double Jeopardy Cl ause. In this c ase we are aske d to

2 decide whether a trial court ha s discretion to choose whic h conviction to vacate or whether, as the tri al court here understoo d it was obligated to do under our dec ision in Mooney v. United States, 938 A.2d 710 (D.C. 2007), a trial court must leave the felony murder c onviction in plac e and vacate t he predicate fe lony. We acknowledge there is tension between Moone y and earlier decisions from this court, sp ecificall y Price v. United States, 531 A.2d 984 (D.C. 1987), and Bonhart v. United States, 691 A.2d 160 (D.C. 1997). B ut we ultimately conclude that the trial court correct ly determined that it had no choice but to sentence the defendant in this c ase, Malik Hewitt, for his first - degree (felony) m urder convic tion and vaca te his underlying felony convic tion. I. Facts and Proce dural History As we detai led in o ur 2023 Memorandum Opinion and Ju dgment affirming Mr. Hewitt ’ s convictions but remanding for rese ntencing, Mr. Hewitt, Nykemia Everett, and La rissa Williams made a plan in April 2017 to rob Christopher Heard because they be lieved he wa s a drug dealer who woul d have money on him. E verett v. United States et al., Nos. 21 - CF - 723, 21 - CF - 724 & 21 - CF - 725, Mem. Op. & J. at 2 (D.C. Jul y 24, 2023). Mr. Hewitt drove Mr. Everett and Ms. Willi ams in M s. Williams’ s car to meet Mr. Hear d on the pretense of buying drugs, and Mr. Hewitt remained i n t he car for the entirety of Mr. Everett’s and Ms. Willia ms’ s in teracti on

3 with Mr. Heard. A fter Mr. Hewitt took Mr. Evere tt and Ms. Williams to the housi ng complex where Ms. Williams and Mr. Heard ha d arranged to meet, Ms. Williams and Mr. Eve rett got out of the car and walked around the parking lot. At some poi nt, Ms. Williams took a phone call from Mr. Heard, who direc ted her to meet him be tween two SUVs on the left side of the parking lot. Before Mr. Hea rd joined Ms. William s there, Mr. Everett returne d to the car, where Mr. He witt was sitting in the driver’s seat. When Mr. Heard a nd Ms. Williams bega n to speak, Mr. Everett exited the car again, walked towards them, and pointed a gun in Mr. Heard’s direction. Mr. Heard paused, reached i nto his pockets, and lunged at Mr. Evere tt. Mr. Everett the n fired three shots at Mr. Heard. Ms. Williams and Mr. Everett ran to the car and Mr. Hewitt drove them away. By the time police arrived, Mr. Hea rd was on the ground and ha d no pulse. Id. at 2 - 3. Mr. Hewitt, Mr. Everett, and Ms. Williams were all arrest ed and charged in connection wi th Mr. Heard’s dea th. M s. Williams agreed to cooperate wi th the government, pled guilty, and receive d a probationary sente nce. M r. Everet t and Mr. Hewitt went to trial. The jury found Mr. Everett guilt y of an array of charges including fir st - degree (felony) murder while armed, and the trial court im posed an aggregat e senten ce of thirty - three years. The jury f ound Mr. Hewitt guilty of first - degree (felony) m urder while a rmed, attempted robber y while armed, and conspiracy, s ee D.C. Code §§ 22 - 2101, 22 - 4502, 22 - 2802, 22 - 1805a, and the trial court imposed an aggrega te sentence of thirty years of incarce ration, with the lesser

4 sentences for conspi racy and attempted robbery while armed — twenty - four and six ty months, respectively — running conc urrently with the mandatory mi nimum of thirty years for the first - degree (felony) murde r conviction. In his first appeal, Mr. Hewitt argued that sente ncing him for both first - degr ee (felony) murder a nd the underl ying offense of a ttempted a rmed robbery would impose double pun ishment for the same offense in violation of the Double Jeopardy Clause. Accordingly, he asked this court to merge th ese offenses by vacating his attempte d robbery while armed conviction. The government agreed that this was the correct cours e of action. In our memorandum opinion and judgment, this c ourt affirmed Mr. He witt’s convicti ons but “ rema nd [ed ] for merger purpose s, ” relying on Matthews v. United States, 13 A.3d 1181 (D.C. 2011), but with no further a nalysis or instruction t o the resentenc ing court. E verett, Me m. Op. & J. at 11. On remand, the que stion arose whe ther the trial court had discretion to vacate Mr. Hewitt’ s first - degree (felony) murder while ar med conviction instea d of his attempte d robbery while arm ed conviction. The trial court o bserved th at, if permitted, it would be inclined to exercise such discretion because it deemed Mr. Hewitt “far less culpable” than either Mr. Everett or M s. Williams and believed the thirty - year mandatory mi nimum sentence for first - de gree (felony) murde r to be “disproportiona tely harsh” unde r the circum stances. The trial c ourt considered

5 filings from the parties and reviewe d this court’s merger decisions — among them Bonhart and Young v. United States, 305 A.3d 402 (D.C. 2023), holding that, when a defendant is conv icted of both first - degree (felony) murder and second - degre e murder, a trial c ourt has discretion to va cate the first - degree (felony) murder convict ion and leav e in pl ace the s econd - degree murder and underlying felony convictions, and Moone y, holding that when a defendant is con victed of first - degree (felony) murder the trial c ourt must ma intain the felony m urder conviction and vacate th e less er - included predicate fe lonies. T he trial court observe d that these decisions were “ not obviously consistent” and did not provide a “ simple or straightforw ard answer to the q uestion ” presented by Mr. Hew itt. Ultimately, the trial court conclude d this court’s decision in Moone y tied its hand s and comp elled it to retain Mr. Hewitt’s first - degre e (felony) murder while armed conviction and vacate his underlying attempted robber y while armed conviction. The court encouraged Mr. Hewitt to “conside r appealing this r uling” to clarify thi s area of the law and en sure it h ad not err ed in its analysis. II. Judicial Estoppel an d Waiver Before we turn to the merger issu e presented in this case, we addr ess the government’s argument th at Mr. Hewitt eith er waived any argument that his first - degree (felony) murder wh ile armed conviction should be vacate d on remand or

6 should be judicia lly estopped from making this argum ent. The government argue s that Mr. He witt “ waived ” the merger question presented in this a ppeal because, when he argued his merger claim in his first appeal to this court, he did not argue that his first - degree (felony) murder while armed conviction should be vacated and that he should be sentenced solely for the pre dicate felony of atte mpted robbery while armed; to the contrary, he argued tha t his attempte d robbery while arm ed conviction should merge into his first - degree (felony) murder whi le armed conviction. We are doubtful that his failure to pursu e his current me rger argument in a brief to this court c onstituted a “w aiver” — i.e., a knowing, intel ligent, and voluntaril y relinquishment — of his current me rger argument. See Robin v. United Stat es, 344 A.3d 1276, 1281 n. 1 (D.C. 2025) (distinguishi ng waiver from forfe iture); Riley v. United States, 338 A.3d 1, 7 (D.C. 2025) (distinguishin g waiver from invited error). But in any event, the governme nt’s “waiver” argum ent fails becaus e, when Mr. Hewitt pur sued his current merger argument on rem and in the t rial court, the government di d not argue tha t this argument h ad been “w aived.” We h ave held that the government can “ waive a waiver” argume nt, see, e.g., Picon v. United States, 343 A.3d 57, 67 n.5 (D.C. 2025), pet ition for cert. filed (U.S. Sept. 24, 2025) (N o. 25 - 5713); Sims v. United States, 213 A.3d 1260, 1267 n. 11 (D.C. 2019), a nd we conclude it has done so here.

7 Alternatively, the gove rnment contends t hat Mr. Hewitt should be judicially estopped from purs uing his current merger argum ent because he persuade d this court in his initial appeal to direct that his attempted robbery while armed convict ion be merged into his first - degree (felony) mu rder while ar med conviction. See Mason v. United States, 956 A.2d 63, 66 - 67 (D.C. 2008) (explaining tha t the doctrine of judicial estoppel applies when a litigant’s “ later position [is] clearly inconsistent with [his] earlie r position” and he appears to have “ succee ded in persuading a court to accept [his] e arlier position, so that judicia l acceptance of a n inconsistent positi on in a later proceedi ng would create the perception tha t either the first or the second court was misled” (quot ing New Hampshire v. Maine, 532 U.S. 742, 750 - 51 (2001))). We questi on whether this argu ment is supported a s a factual ma tter. First, a lthough this court agreed merger of Mr. Hewitt’s first - degree (felony) murder while armed and attempted robbery while armed convictions was required, at no point did we expressly state eit her that the latter conviction had to be vacated or that the trial court lacked discretion to consider vacatur of the forme r. Second, eve n though we cited to Matth ews, a case in which we merge d the predicate felony convicti on into the first - degree (fe lony) murder convictio n, we did so only for the propositio n that “a person cannot be c onvicted of both felony murder and the underlying felony tha t supported the felony murder c onviction.” Everett, Mem. Op. & J. at 11 (emphasis in original); see also Matthews, 13 A.3d at 1191. But be cause the governme nt also

8 did not preserve this a rgument in the trial court on re mand, we conclude it is forfe ited in this appeal as w ell. 1 III. Merger The animating force behind our m erger case law is the Fifth Amendment’s Double Jeopardy Cla use. Among other things, the Double Jeopardy C lause prohibits the imposition of multiple punishment s for th e “ same offense ” unless such cumulati ve punishment s are authorized by t he legislature. Whalen v. United States, 445 U.S. 684, 68 8-8 9 (1980); see also Grogan v. United State s, 271 A.3d 196, 207 (D.C. 2022) (explai ning that legislative intent is paramount and the legislature c an always choose to f orbid multip le punishme nts for certai n crimes). T his protection against multiple puni shments extends beyond offenses tha t are literally the sam e to different offense s that share the same elements under th e test set forth by the United States Supreme Court in Blockburger v. United State s, 284 U.S. 299 (1932). Whalen, 445 U.S. at 6 91 -93; cf. (Samuel) Byrd v. United States, 500 A.2d 1376, 1384 (D.C. 1985) (explaining t hat th e Blockburger test is used only if the court has determined the two crimes are statutorily distinct), a dopted by 510 A.2d 1035, 1037 (D.C. 1986) (en ba nc). G enerally, if each offense “ requires proof of a fa ct which the 1 The gove rnment’s law of t he case argument, which it raises only in a footnote, fai ls for the same reason.

9 other does not, ” the offenses are not the same and there is no d ouble j eopa rdy b ar on multiple punishment s, Whalen, 445 U.S. at 69 2 (quoting Blockburger, 284 U.S. at 304), b ut if each offe nse requires proof of the same elements — or one requires proof of a subset of the same elements as the o ther — then the d ouble j e opardy bar appli es, id. at 693 - 94 (concluding that a defendant coul d not rece ive consecutive se ntences for first - degre e murder under a fe lony murder theory a nd the underlyin g felony of rape); accord (Lindbergh) Byrd v. United States, 598 A. 2d 386, 389 - 91 (D. C. 1991) (en banc) (re aligning this c ourt’s understanding o f the d ouble j eopardy bar on multiple punishments with that set forth in Whalen a nd Blockburger). In the context of the offense of first - degree (felony) murder, see D.C. Code § 22 - 2101, our court recognize d post - Wh alen that “ where there is one death, a nd the jury returns a verdict of guilty as to fel ony murder and the unde rlying felony as wel l, then the [trial] court may impose [a ] sentence on only one of those c harges, but not both,” Garris v. United States (Garris I), 465 A. 2d 817, 823 (D.C. 1983) (citing Doepel v. United States, 434 A. 2d 449 (D.C. 1981)). In Doepel v. United States, we determined tha t even sentencing a de fendant concurrently f or first - degree (felony) murder and the underlying fe lony of rape was incompat ible with Whalen, and — consistent w ith our conclusio n in other c ontexts that the “appropria te appellat e remedy” was to merge les ser - included offenses int o greater ones, see Fran klin v. United States, 392 A.2d 516, 519 n.3 (D.C. 1978) —w e adopted the practi ce of

10 vacating the underlying felony and reta ining only the first - degree (fe lony) murder conviction, s ee Do epel, 434 A.2d at 459 (in light of defenda nt’s first - degree (felony) murder convicti on, remanding for vacatur of his concurrent priso n term for the underlying fe lony rape conviction); see also, e.g., Tribble v. United State s, 447 A.2d 766, 774 (D.C. 1982) (holding that, where defendant had been convicted of first - degree (felony) murder and a rmed robbery, the la tter conviction “must be vacat ed i n light of Whalen ”); Brown v. United State s, 464 A.2d 120, 1 25 n.7 (D.C. 1983) (acknowledging t hat the first - degree (felony) murder a nd underlying fel ony convictions m erged and rem anding with instruc tions to vaca te defendant’s “underlying fe lony (robbery)” convicti on); Williams v. United S tates, 483 A.2d 292, 294 n.2 (D.C. 1984) (re manding w ith instructions to vacate defendant’s armed burglary convic tion because it merg ed with h is first - degree (felony) murder conviction); Prophet v. United States, 602 A.2d 1087, 1089 (D.C. 1992) (rem and ing with instructions to vacate defenda nt’s armed robbery convi ction because th at underlying c onviction merged w ith his first - degree (felony) murder conv iction). This court’s pra ctice of merging t he underlying felo ny as the lesse r offense into the grea ter offense of first - degree (fe lony) murd er was challenged in M ooney, a case in which a defendant’s right to be present at his resente ncing turned on whether the trial court, in ord er to honor the d ouble j eopardy bar on cumulative punishment, had discretion to vac ate either his first - deg ree (felony) murder conviction or the

11 predicat e felony convicti on of armed robbery. 938 A.2d at 712. We acknow ledged that a trial court has discretion to “vacat[e] ei ther one of two convicti ons” in certa in situations, suc h as where a defendant is convicted of “ first - degree pr emedit ated murder and felony murde r (of the same person), ” because of the rule that “a person may stand convict ed only once for a single murde r.” Id. at 723. But we held a trial court did not enjoy such discretion when “the illegality of multiple punishments results from convic tions of a greater and lesser - inc luded offense. ” Id. W e explained that in this scenario “t he double jeopardy bar is fully a ddressed and the il legal sentence correc ted, by mergi ng the lesse r into the greate r offense so that only the latter remains, unless — an d this is an important caveat — there is clear legislative intent that punishment sho uld be imposed for both.” Id. (emphasis in original). Employing the Blockburger test, we reaffirmed that felony murde r and the fel ony used to prove the offense of fel ony murder “are not sepa rate offenses and felony murder is undoubted ly the greater offe nse.” Id. In addition, str essing the importance of considering legislative intent, we obse rved that “ [i] t cannot be suggested seriousl y that the legisl ature intended an attempte d robbery convi ction to suffic e as an alternative sa nction for murder. ” Id. at 72 3 - 24 (quoting Jones v. Thomas, 491 U.S. 376, 384 - 85 (1989)). With these considerations in mind, [w]e. .. ma[d]e explicit wha t ha[d] been implied in our remand orders over the years: absent legisla tive intent otherwise, w hen resentencing to re spect the double

12 jeopardy bar on m ultiple punishme nts for the same offense where the defe ndant has been convic ted of a gre ater and lesser - included offense, the trial court has but one course, to vacat e the less er - included offense. Id. at 724. A ccordingly, we affirmed the tri al court’s rete ntion of the con viction for felony murder, which “carrie [d] a m andatory minimum se ntence of twenty years” and its vacatur of the underlying fe lony conviction of armed robbery. Id. Mooney is directly on point and would seem to requi re us to reject Mr. Hewitt’s argument that the trial c ourt had discretion in his case to vacat e his f elony murder convicti on and leave in place his attempted robbery w hile armed conviction. But as Mr. Hewitt highlights, our court has also issued decisions, like Price, 531 A.2d 984, Bonhart, 691 A.2d 160, and most recently Young, 305 A.3d 402, in which we have reco gnized that a trial court has discretion to vacate the greater offense of felony murder a nd leave the lesser unde rlying felon ies i n place. He argues that since Price and Bonhart predate Mooney, they are binding on this court per M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971); see also Thomas v. United States, 731 A. 2d 415, 420 n.6 (D. C. 1999). We dis agree. There is much about Price and Bonhart that we find puzz ling, and we question ho w those cases would be decided if the sla te were clear ed. B ut ultimately we conclude that Price and Bonhart (and Young, which was decided post M ooney and merely cites to Bonhart) address a trial court’s discretion only in the distinct scenario where a defendant — unlike in this case or in

13 Mooney — has been c onvicted of second - degree murder, as w ell as first - degree (felony) m urder and an unde rlying felony in connecti on with the same com plainant, and in that context alone held that a tri al court could opt either (1) to retain the second - degree murder convic tion and the convicti on for the felony underlying the felony murder convict ion and vacate the fe lony murder conviction, or (2) merge both the second - degree murder conviction and the underl ying felony convict ion into the felony - murder c onvictio n. See Loftus v. District of Columbia, 51 A.3d 1285, 1287 n.5 (D.C. 2012) (explaining t hat the binding prece dent rule applies “[w] here the facts underlying a prior panel ’ s decision c annot be mea ningfully distinguis hed from those present in this case ” (internal quotation s & citation omitted)). Thus we conclude that we are bound by M ooney. In Price, this court addressed in a foot note the d ouble j eopardy proble m that arose from the defendant’s tw o murder convic tions for the same death — first - d egree (felony) murder while a rmed and s econd - degree murder while armed — as well as his conviction for at tempted robbery whi le armed. 531 A.2d at 989 n. 7. We acknowled ged that both second - degre e murder and attempte d robbery while armed are less er - included offenses of first - degree (felony) murder. Id.; see also Fuller v. United States, 407 F.2d 1199, 1229 (D.C. Ci r. 1967) (reasonin g that s econd - degree murder i s a less er - included offense of first - degree (felony) murder even though it may not be chargeable on parti cular fact s becaus e the m alice el ement for second -

14 degree murder is sa tisfied by a killing in the course of a felony). Nevertheless we held that the trial court had a choice as to which murder c onviction to keep, whi ch then had consequenc es for the underlying felony: the trial court could (1) keep the first - degree (felony) murder conviction and vaca te both the underlying fe lony conviction a nd the second - degr ee murder convic tion or (2) keep the s econd - deg ree murder conviction, v acate the first - degree (felony) murder conviction, and kee p the underlying fe lony conviction. Price, 531 A.2d at 989 n.7. We said that this result was consistent with our opinions in Thor ne v. United State s, 471 A.2d 247 (D. C. 1983), and Gar ris v. United Sta tes (Garris II), 491 A.2d 511 (D.C. 198 5). Id. Similarly, in Bonhart, we reaffir m ed that a trial court ha s di screti on to v acate a first - degree (felony) mur der conviction a nd keep the lesse r - included second - degree murder and underl ying felony conviction s, 691 A.2d at 164, now citing P rice, 531 A.2d at 989 n.7, (Samuel) Byrd, 500 A.2d at 1385, adopted by 510 A. 2d at 1037 (en banc), and Thacker v. United State s, 599 A.2d 52, 63 (D.C. 1991). For multiple rea sons, Price and Bonhart are curious decision s. First, i n both cases, we diverged from our longstanding pract ice —i n the felony murder c ontext and beyond — of me rging lesser - incl uded offenses in to the greate r offense, s ee supra (discussing cases predating Price and Bonhart), without acknowledging this divergence. P rice, 531 A.2d at 989 n.7; Bonhart, 691 A.2d at 164. Second, as support for our determi nation that the trial court had discretion not to me rge the

15 lesser offense into the greater but to divide the greater offense (felony murder) into two lesser ones (second - degree m urder and the underlyin g felony offense for felony murder), w e relied on a set of cases in which we had not engaged in a similar division; rather, i n thos e cases the defendant s had actually b een twice convicted of the same offense, whic h we understood was impe rmissible under the Double Jeopardy Cla use and necessi tated vacatur of one of the two duplicative convicti ons. In Price, we looked to Thorne — where the defendant ha d been convicte d of two counts of burglar y based on the gove rnment’s theor y that he had unlaw fully entered the complainant ’s apartment with the inte nt to commit two differe nt crimes, 471 A.2d at 248 - 49 — and Garris II — where the defendant had be en convicte d of two counts of first - degr ee murder in relation to the same vic tim based on the government’s theo ry that the m urder was both pre meditated a nd committed in the course of anothe r felony, 491 A.2d at 513 - 14. Price, 531 A.2d at 989 n.7; s ee als o (Samuel) Byrd, 50 0 A.2d at 1 384 (ex plai n ing that “ [f] irst - degree premeditat ed murder and first - degree fel ony mur der are bu t separate clauses in one statutory provision — D.C. Code § 22 - 2401 (1981) — m urder in the first degree”), adopted by 510 A.2d at 1037. Similarly, in Bo n hart, we looked to (Samuel) Byr d, 500 A.2d 1376, and Tha cker, 599 A.2d 52 — both of which pre sented the s ame scenario as Garris II. 691 A.2d at 164. T hird, we see mingly failed to appre ciate that, in the Garris II - Byrd - Th acker scenario, the discretion give n to trial courts to decide which

16 first - degree murder convic tion to vacate did not and c ould not affect th e senten ce the trial court s im posed for that offense; e ither way, these trial courts wer e obligated by statute to sentence the defendant to life i mprisonment. See D.C. Cod e § 22 - 2404 (1981) (providing th at “the punishment of m urder in the first degre e shall be life imprisonment” with parole eligibility afte r twenty year s); see also Garris II, 4 91 A.2d at 514 (citing the first - de gree murder sta tute and explaining that “a trial judge has no discretion whe n passing sentenc e o n a first - degree murder conviction”). Fourth and fina lly, in allow ing trial court s to divide a gr eater first - degree (felony) murder convictio n into lesser second - degree murder and underlyi ng felony convictions, we appeared to disre gard “Congress’ int ent that a manda tory minimum sentence be im posed for first - d egree murder convi ctions,” Garris II, 491 A.2d at 51 4; see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) (acknowl edging that “ the substantive power to prescribe c rimes and determ ine punishments is ve sted with the legislature ”); Grogan, 271 A.3d at 206 n.8 (recogni zing that an “a nimating purpose of the D ouble J eopardy inquiry is to protect t he exclusive authority of th e legislature to define and punish crimes ”). So, the “ merger ” holdings in Price and Bonhart are subject to question on numerous grounds. But even if w e accept that th e discretion afforde d to trial courts to choose which of two first - de gree murder convictions to va cate under our Garris II - Byrd - Tha cker line o f precedent was properly extende d in Price and Bonhart to

17 the distinct scenario where a defenda nt has been convicted of the grea ter offense of first - degree murder (with a manda tory minimum sentenc e) and the lesser offense s of second - degre e murder (with no ma ndatory minimum) and an underlying felony, we are unpersuade d that Price and Bonhart compel the extension of similar discretion to the facts presented in Mooney and this case. Price and Bonhart, aft er all, acknowledged that at least one murder convict ion had to stand, and neither suggest ed that the grea ter offense of first - degre e (felony) murder c ould “ merge ” into the underlying fe lony convict ion alone. Because we se e no dir ect confl ict betw een Price and Bonhart on the one hand a nd Mooney on t he other, w e consider oursel ves bound by Mooney and our ge neral practic e of merging lesser - include d offenses into greater ones. 2 2 We acknowle dge d in Mooney that the rule of priori ty rationale we provided in Franklin, 392 A.2d at 519 n. 3, for our practice of merging le sser include d offenses into greater one s — i.e., that “ the jury should have been charge d to consider the le sser included offense onl y if it had already determ ined that the appellant was not guil ty of the main offense, ” — does not map on to t he “ sui generis ” crime of first - degree (felony) murder. 938 A.2d at 724 n.17. To illust rate using Mr. Hewitt’s case, th e court was not obligated to tell the jury to conside r the felony murder charge first and only if it dec ided that he wa s not guilty of that offe nse to consider if he wa s guilty of attempted robbery w hile armed. To the contrary, t he jury was instructed on attempte d robbery while armed before it was instruc ted on first - degre e (felony) murder because it needed to find that Mr. Hewitt was crim inally responsi ble for the attempte d robbery before it could convict him of first - degree (felony) murder. Even so, we conc lude that the ne ed to honor the l egislature’s inte nt that a defendant serve a mandatory minimum sentence for first - degre e (felony) murder supplie s an alternate rationale for this established me rger practice in the felony murder context.

18 Limiting our understanding of Price and Bonhart to their particular facts, as Mooney effectiv ely di d, 938 A.2d at 723 & n.16, is also consistent with the Supreme Court’s deci sion in Jones v. Thomas, 491 U.S. 376 (1989), which Mooney cited. In Jones, the Supreme C ourt rejecte d the argument that a defe ndant who had been gi ven consecutive sentences of fifteen years imprisonment for attempted robbery a nd life imprisonment for first - degree (felony) murde r and had serve d his fifteen - yea r sentence shoul d be release d from prison because his life sentenc e for felony murder was unconstitutional. Id. at 385 - 87. Instea d, the C ourt held that, c onsistent with the D ouble J eopardy C la use’s bar aga inst multiple punishm ents for the sa me crime, the f ifteen - year sente nce could be credited a gainst the life sentence and to do otherw ise would be contrary to l egislative int ent. Id. at 384 - 85. Jon es supports our conclusion that a tria l court, at least whe n confronted with a single first - degre e (felony) murder conviction and an unde rlying felony, has no discretion to vacate t he greater offense and retai n the les ser. We agree with the trial court that the result is both harsh and incongruous. It is harsh because the trial court must sentence Mr. Hewitt to the current manda tory minimum sentenc e for first - degree (fel ony) murder — thirty years, see D.C. Cod e § 22 - 2101 — meaning his punis hment for driving his c odefendants to and then away from a n at tempted ro bbery in which he did not otherwise participate will be almost as long as that of Mr. Everett for firing the fatal shot s. And it is inc ongruous because

19 it creates the possibility that a trial court will have discretion to more leniently sentence the pe rson directly re sponsible for a de ath, but no such discretion with respect to someone like Mr. Hewitt. For example, had Mr. Everett been convicted of first - degree (felony) murder and se cond - degree murde r, the trial court could have sentence d him concurrentl y for second - degree murder (with no m andatory minimum) and the underlying atte mpted robbery (wit h a maximum sentence of three years imprisonment). 3 But these harsh a nd incongruous res ults are a produc t primarily of the first - degree murder statute itself — which does not limit its application to i ndividuals direc tly responsible for de aths that occur in the c ourse of the commission of fe lonies 4 — and secondarily of our decisions i n Price and Bonhart addressing a distinct sentencing scena rio. The former c oncern is a subject for the legislature; the latter concern can only be addressed by t he en banc court. 3 This opportunity did not arise because the jury w as instructed to consi der second - degree murde r (and, subsequentl y, involuntary m anslaughter) on ly if it did not find Mr. Everett guilty of first - degree (felony) m urder and it convicted him of the greater offens e. 4 Compare D.C. Code § 22 - 2101, with N.Y. Pen al Law § 125.27(1)(a)(vii) (McKinney) (limiting the application of first - deg ree (felony) murder to individua ls directly respons ible for death(s) in the course of a fe lony, unless the y directed the murder), and Or. Rev. Stat. An n. § § 163.107(1)(j), 163.115(b) (limiting first - degree murder charges to those w ho personally and intenti onally committed t he homicide during the comm ission of the speci fied felonies).

20 For the foregoing re asons, we affirm the judgment of the Superior Court. So ordered.