Case: 09-50347 Document: 00511287481 Page: 1 Date Filed: 11/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2010
No. 09-50347
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVIS LEE HOUSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 5:07-CR-745-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Travis Houston appeals his seven-year sentence imposed for brandishing
a firearm during and in relation to a crime of violence pursuant to 18 U.S.C.
§ 924(c)(1)(A)(ii) (2006). He argues that, because he was subject to a 25-year
mandatory minimum sentence under § 924(c)(1)(C)(i), the district court should
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No. 09-50347
not have imposed an additional consecutive seven-year sentence pursuant to
§ 924(c)(1)(A)(ii). Because Houston’s seven-year and 25-year sentences were for
separate crimes, we affirm.
I.
While Michael Floyd, a truck driver for Grocery Supply Co. (“GSC”), was
stopped at a red light in San Antonio, Texas, Houston ran up to the truck’s win-
dow brandishing a handgun and demanded to be let in. Houston then moved
Floyd over to the passenger seat and drove toward Austin, Texas.
Two hours later, in Austin, Houston spotted another GSC truck off the
freeway making its delivery at a convenience store. Houston said, “There’s my
truck,” exited the freeway, parked near the convenience store, and waited for the
other truck to finish its delivery. As David Cruz, Jr., along with his co-worker
Michael Bilicek, drove their truck from the store, Houston positioned his truck
to block the road. As Cruz’s truck approached, Houston exited his vehicle and
ran toward Cruz’s truck with his gun in hand while shouting at Cruz to stop.
As Cruz tried to drive around the truck Houston had left blocking the road,
Houston jumped onto the steps to the passenger side door of Cruz’s truck and
held on to the truck. Cruz sped up and swerved the truck back and forth, and
Bilicek repeatedly kicked the passenger side window, but Houston hung on to
the vehicle. Houston then fired his gun into the cab, shattering the passenger
side window and spraying glass shards onto Cruz and Bilicek. Cruz steered the
truck toward a ditch and jumped out, breaking his leg. Houston also jumped off,
before the truck, with Bilicek inside it, crashed into an occupied car and fell into
the ditch.
Francisco Aleman was washing his cement truck nearby when he heard
the gunshot and the crash, and he ran over to the crash site. He saw Houston
running toward him and asked whether he needed any help, at which point Hou-
2
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No. 09-50347
ston pulled out his gun, pointed it at Aleman, told him to “back up,” pushed him
up to the cement truck, and asked for Aleman’s key to the truck. The engine of
another cement truck was already running, however, so Houston took that truck
and drove off. Using the truck’s GPS system, police apprehended Houston short-
ly thereafter.
II.
Houston was convicted of possession of a firearm by a convicted felon,
three counts of taking a motor vehicle by force, and two counts of obstructing
interstate commerce by robbery, for which he received sentences ranging from
120 to 240 months of imprisonment, to run concurrently. In addition, he was
convicted of two counts of brandishing a firearm during and in relation to a
crime of violence pursuant to 18 U.S.C. § 924(c). He was sentenced to seven
years of imprisonment on the first § 924(c) count and 25 years on the second,
both sentences to run consecutively to all other counts. He appeals the imposi-
tion of the seven-year consecutive sentence.1
III.
Section § 924(c)(1) says, in pertinent part,
(A)(i) Except to the extent that a greater minimum sentence is oth-
erwise provided by this subsection or by any other provision of law,
any person who, during and in relation to any crime of violence or
drug trafficking crime . . . for which the person may be prosecuted
in a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addi-
tion to the punishment provided for such crime of violence or drug
trafficking crimeSS
1
Although Houston also argues that his conviction for felony firearm possession pursu-
ant to 18 U.S.C. § 922(g)(1) (2006) violates the Interstate Commerce Clause, he concedes that
that argument is foreclosed by United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996).
3
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No. 09-50347
. . . (ii) if the firearm is brandished, be sentenced to a term of im-
prisonment of not less than 7 years;
....
(C) In the case of a second or subsequent conviction under this
subsection, the person shallSS
(i) be sentenced to a term of imprisonment of not less than 25
years . . . .
18 U.S.C. § 924(c)(1) (emphasis added). Houston contends that the district court
erred in imposing both a seven-year consecutive sentence for the first count of
brandishing a firearm and a 25-year consecutive sentence for the second count,
because § 924(c)(1)(A) prohibits imposing the seven-year § 924(c) sentence “to the
extent that a greater minimum sentence is otherwise provided by [§ 924(c)].” We
must therefore decide whether a greater minimum sentence for a second or
subsequent § 924(c) offense qualifies as a “greater minimum sentence . . .
otherwise provided by [§ 924(c)].” 2
The language of a statute, like all language, “cannot be interpreted apart
from context.” Smith v. United States, 508 U.S. 223, 229 (1993). The so-called
“except” clause of § 924(c)(1)(A)(i) “does not say ‘a greater minimum sentence’ for
what; yet it has to have some understood referent to be intelligible.” United
States v. Parker, 549 F.3d 5, 11 (1st Cir. 2008). One such referent is that the
clause applies only to sentences concerning firearm possession.3 The question
2
The parties agreed that Houston’s appeal of his seven-year § 924(c) sentence was fore-
closed by United States v. London, 568 F.3d 553, 564 (5th Cir. 2009), and the government
moved for summary affirmance. We denied summary affirmance, however, because London
does not address the issue we face.
3
London, 569 F.3d at 564 (adopting reasoning and holding of United States v. Collins,
205 F. App’x 196 (5th Cir. 2006)). The Supreme Court granted certiorari to resolve a circuit
split on that issue. United States v. Gould, 329 F. App’x 569 (5th Cir. 2009), cert. granted, 130
S. Ct. 1283 (2010) (No. 09-7073); United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert.
(continued...)
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is whether the “except” clause also covers a “greater minimum sentence” for pos-
session of the same firearm during a subsequent crime committed later in the
same day.
The issue is one of first impression, but the Second Circuit has come close
to addressing it directly. In United States v. Williams, 558 F.3d 166, 171-72 (2d
Cir. 2009) (dictum), it observed (and in United States v. Parker, 577 F.3d 143,
147 (2d Cir. 2009), it held) that the so-called “except” clause of § 924(c)(1)(A) ap-
plies only to conduct arising from the same criminal transaction or set of op-
erative facts as the crime yielding the greater mandatory minimum sentence.
Thus, in Parker, the mandatory minimum sentence arising from possession of
crack cocaine between April 30 and May 1 did not preclude an additional consec-
utive sentence for conduct arising from possession of crack cocaine on July 19,
because those were different transactions. Parker, 577 F.3d at 147.
In support of its holding, the Second Circuit relied on § 924(c)(1)(A)(i)’s
reference to the use or carrying of a firearm “during and in relation to,” or pos-
session “in furtherance of,” a crime of violence or drug trafficking offense. Id.;
Williams, 558 F.3d at 171. The problem with that reasoning, however, is that
the phrases “same transaction” and “set of operative facts” are procedural terms
of art that mean neither “during” nor “in furtherance of” a crime of violence or
drug trafficking offense.4
3
(...continued)
granted, 130 S. Ct. 1284 (2010) (No. 09-479).
4
See, e.g., Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610 (1926) (“‘[T]ransaction’ is a
word of flexible meaning. It may comprehend a series of many occurrences, depending not so
much upon the immediateness of their connection as upon their logical relationship.”); United
Mine Workers v. Gibbs, 383 U.S. 715, 724-25 (1966) (holding federal jurisdiction over pendent
state law claims exists only if federal and state claims have the same “nucleus of operative
fact” and is not limited to those cases in which state law claims are “little more than the equiv-
alent of different epithets to characterize the same group of circumstances” (internal quotation
marks and citation omitted)); McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 304 (5th Cir.
(continued...)
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For example, if a defendant robbed a bank and then stole a vehicle con-
taining an unregistered firearm, a charge for possession of an unregistered fire-
arm could form part of the same “transaction” as the bank robbery charge, even
if the firearm was not carried “during” or possessed “in furtherance of” the rob-
bery.5 In short, there is a logical gap between the Second Circuit’s test and the
statutory language it relies on. Although the statute is admittedly “not a model
of clarity,” Collins, 205 F. App’x at 198, that does not sanction importing a doc-
trine found nowhere in the statute, let alone one as vague as the “same transac-
tion” test.
There is a more faithful interpretation of the statute. Section § 924(c)-
(1)(A)(i) imposes a mandatory minimum sentence for using or carrying a firearm
“during and in relation” to a crime of violence or drug trafficking crime or for
possessing a firearm “in furtherance of” such a crime, unless § 924(c) or another
provision of law imposes a greater mandatory minimum sentence. Just as we
thought in Collins that the statute’s “greater mandatory minimum sentence”
exception most reasonably refers only to another, greater sentence for firearm
possession, id., so too does it most reasonably refer only to a greater mandatory
minimum sentence for that specific crime of firearm possession.6
In addition to being the most natural reading of § 924(c)(1)(A)(i), that in-
terpretation avoids the odd result produced by the Second Circuit’s reading,
4
(...continued)
1993) (holding defendant’s contractual indemnity claim for attorneys’ fees against third party
arose out of same “aggregate of operative facts” as did plaintiff’s negligence claim against de-
fendant (internal quotation marks and citation omitted)).
5
See United States v. Park, 531 F.2d 754, 761 (5th Cir. 1976) (discussing United States
v. Pietras, 501 F.2d 182, 185 (8th Cir. 1974)).
6
See United States v. Easter, 553 F.3d 519, 526 (7th Cir. 2009) (“[T]he most natural
reading of the ‘except’ clause is that a defendant convicted under § 924(c)(1) shall be sentenced
to a term of imprisonment set forth in § 924(c)(1)(A) unless [another statutory provision] re-
quires a higher minimum sentence for that § 924(c)(1) offense.”).
6
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whereby a second conviction under § 924(c)(1)(C) precludes any imprisonment
for the first conviction if the two crimes occurred in close proximity. “A deter-
mination of guilt that yields no sentence is not a judgment of conviction at all.”
Easter, 553 F.3d at 526. The Second Circuit’s interpretation would thus be prop-
er only if § 924(c)(1)(A)(i) were only a sentencing enhancement provision. But
it is not an enhancement provision; it defines a standalone crime.7
Finally, the reasoning we adopt meets the goals identified by the Second
Circuit. We avoid making the length of a sentence turn on whether prosecutors
charged the defendant in separate prosecutions instead of in a multi-count in-
dictment.8 Moreover, we avoid giving a defendant a lighter sentence just be-
cause he was “already sentenced for a prior unrelated crime in a previous case.”
Williams, 558 F.3d at 172.
In sum, § 924(c)(1)(A)(i)’s reference to a “greater mandatory minimum sen-
tence” refers only to a greater mandatory minimum for that specific offense.
Therefore, the district court did not err in sentencing Houston to consecutive
terms of seven years for his first firearm offense and 25 years for his second.
AFFIRMED.
7
See Dean v. United States, 129 S. Ct. 1849, 1853 (2009) (“The principal paragraph [of
§ 924(c)] defines a complete offense . . . .”).
8
See Deal v. United States, 508 U.S. 129, 133-34 (1993) (interpreting statute in part to
avoid “such strange consequences”); Williams, 558 F.3d at 172 n.4.
7