United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 7, 2006 Decided June 2, 2006
No. 04-3159
UNITED STATES OF AMERICA,
APPELLEE
V.
KEVIN PATRICK LUKE BROWN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00405-01)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant.
Steven W. Pelak, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Roy W. McLeese III and
Frederick W. Yette, Assistant U.S. Attorneys.
Before: RANDOLPH and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
2
WILLIAMS, Senior Circuit Judge: Congress has provided
a minimum sentence of five years for any person who, in
relation to any crime of violence, “uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm.”
18 U.S.C. § 924(c)(1)(A)(i). The minimum penalty increases
to seven years if the firearm “is brandished,”
§ 924(c)(1)(A)(ii), and to ten if it “is discharged,”
§ 924(c)(1)(A)(iii). The question here is whether the
accidental discharge of a weapon triggers a ten-year sentence
for discharging. Phrased more formally, the question is
whether an intent requirement is implicit in the discharge
provision. We conclude that it is.
* * *
The relevant facts are undisputed. About ten minutes
before it closed, Kevin Patrick Luke Brown entered a
SunTrust bank in downtown Washington, D.C. with a semi-
automatic pistol. Brown approached the bank’s acting
manager and forced her, at gunpoint, to lead him into the
locked teller area. Once inside, Brown directed another bank
employee to put money from the tellers’ drawers into a bag.
Irritated because he thought she was moving too slowly,
Brown snatched the bag, threw it at another employee, and
jammed the barrel of the gun into the back of the second
employee’s head. That employee then stuffed cash into the
bag before handing it back to Brown. As Brown closed the
bag, his gun fired. Apparently startled, Brown asked, “Did I
hurt anybody? Did I hurt anybody?” The bank employees
responded that no one was injured; as it turned out, the bullet
had lodged in the bank’s ceiling. Brown then forced the
second employee, at gunpoint, to direct him to an exit in the
back of the bank. The police apprehended Brown moments
later, aided by a SunTrust customer who had seen the robbery
through a window at the bank’s entrance.
3
The judge asked the jury not only for its verdict on the
armed-robbery count (violation of 18 U.S.C. § 2113(a), (d))
and the firearm count (violation of § 924(c)(1)(A)), but also
on whether the firearm was discharged during the robbery.
About ninety minutes after the judge dismissed the jury to
begin its deliberations, he received a note asking whether the
gun had to have been discharged knowingly. The judge
responded in the negative. Shortly thereafter, the jury
returned two guilty verdicts and a finding that the firearm had
been discharged. As the judge had before trial granted
Brown’s unopposed motion to sever the felon-in-possession
charge under 18 U.S.C. § 922(g) and to proceed without a
jury, the judge himself found guilt on that issue. The judge
imposed a sentence that included ten years under
§ 924(c)(1)(A)(iii).
* * *
We review the district court’s interpretation of a criminal
statute de novo. United States v. Wade, 152 F.3d 969, 972
(D.C. Cir. 1998). So far, two circuits have interpreted the
discharge provision and have reached different conclusions as
to intent. The Tenth Circuit found no such requirement,
United States v. Nava-Sotelo, 354 F.3d 1202, 1206 (10th Cir.
2003), while the Ninth Circuit recently found that the
government must show “general intent,” United States v.
Dare, 425 F.3d 634, 641 n.3 (9th Cir. 2005). We agree with
the Ninth Circuit that there is an implicit requirement of
general intent, precluding liability for the accidental discharge
of Brown’s weapon.
We start with the text of § 924(c)(1)(A):
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
4
provision of law, any person who, during and in relation
to any crime of violence . . . uses or carries a firearm, or
who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided for
such crime of violence . . .
(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
As the text makes clear, the minimum penalty doesn’t kick in
anytime a gun is present on the scene of one of the specified
crimes; instead, the firearm must be used or carried “during
and in relation to” the crime, or possessed “in furtherance of”
the crime. See Muscarello v. United States, 524 U.S. 125
(1998) (interpreting “carry” provision); Bailey v. United
States, 516 U.S. 137 (1995) (interpreting “use” provision);
United States v. Gaston, 357 F.3d 77, 82-83 (2004)
(interpreting “possession in furtherance of”); United States v.
Wahl, 290 F.3d 370, 375-77 (D.C. Cir. 2002) (same).
The three subsections of § 924(c)(1)(A) penalize
increasingly culpable or harmful conduct. The government
doesn’t dispute that the five-year sentence in § 924(c)(1)(A)(i)
requires proof of mens rea. See United States v. Harris, 959
F.2d 246, 258 (D.C. Cir. 1992) (saying, in interpretation of
§ 924(c) prior to 1998 amendment that appears irrelevant to
this issue, “Consistent with the presumption of mens rea in
criminal statutes, we assume that section 924(c) is violated
only if the government proves that the defendant . . .
intentionally used firearms in the commission” of the crime.).
5
Nor is there any dispute that the bump to seven years for
brandishing in § 924(c)(1)(A)(ii) requires a separate
intentional act. Congress defined “brandishing” as
“display[ing] all or part of the firearm, or otherwise mak[ing]
the presence of the firearm known to another person, in order
to intimidate that person, regardless of whether the firearm is
directly visible to that person.” 18 U.S.C. § 924(c)(4)
(emphasis added). A requirement of intent for the discharge
provision would be consistent with this progression on the
face of § 924(c)(1)(A); it would reserve the ten-year minimum
penalty for the unambiguously more culpable act of
intentionally discharging a firearm.
To be sure, discharges of a firearm are more likely to
cause severe injury or even death than mere brandishing
(though in cases where they actually do so the defendant
would virtually always become independently guilty of
another, major substantive offense). Nonetheless, as between
an intentional brandishing and a purely accidental discharge,
the increment in risk, given the less reprehensible intent,
seems inadequate to explain a congressional intent to add
three years (or five years if the discharge occurs without
brandishing).
Moreover, the presumption against strict liability in
criminal statutes supports the inference of an intent
requirement. Our circuit has said that “[a]lthough cases
generally apply [this presumption] to statutes that define
criminal offenses, we have little doubt that it should also be
applied to legal norms that define aggravating circumstances
for purposes of sentencing.” United States v. Burke, 888 F.2d
862, 866 n.6 (D.C. Cir. 1989). Like the rule of lenity—which
the Supreme Court has stated on several occasions applies not
only “to interpretations of the substantive ambit of criminal
prohibitions, but also to the penalties they impose,” Bifulco v.
United States, 447 U.S. 381, 387 (1980)—“the presumption
6
against strict liability is founded on the principle that laws that
deprive an individual of his liberty should be strictly
construed. Laws that enhance the sentence of a criminal
defendant meet this description.” Burke, 888 F.2d at 866 n.6
(citation omitted).
The government argues that “[t]he ten year mandatory
minimum sentence is applicable ‘if the firearm is discharged.’
. . . No words of qualification or limitation are included.”
Brief for Appellees 39 (citation omitted). But at oral
argument the government conceded some implicit limitations:
for example, that the statute (despite its use of the passive
voice) wouldn’t render an armed robber liable for the
discharge by a law enforcement officer or bank teller who got
a hold of the robber’s gun and used it to threaten the robber.
See Oral Argument Recording at 16:58-17:26. Even with that
concession, however, the government’s reading would
produce a mandatory ten year sentence (i.e., five more than
under the basic possession bump) if a defendant’s weapon
accidentally discharged when he dropped it to comply with a
police request to do so.
The government’s other arguments for a (limited) strict-
liability reading do not convince us. The government seeks to
draw a contrast between § 924(c)(4)’s definition of
“brandish”—which explicitly includes an intent
requirement—and the absence of such a provision for
“discharge.” We don’t find the proposed inference
compelling. There is a very reasonable explanation for
Congress’s decision to include a definition of one term but not
the other. The statute’s definition of “brandish” is broader
than the dictionary definition, as it (Congress’s definition)
includes uses of a gun invisible to the person threatened so
long as the perpetrator somehow makes its presence known.
Compare, e.g., WEBSTER’S II NEW RIVERSIDE DICTIONARY 89
(1984): (defining “brandish” to mean “[t]o wave or flourish
7
threateningly, as a weapon”); WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY, UNABRIDGED 268 (1981)
(defining “brandish” to mean (1) “to shake or wave (a
weapon) menacingly”; (2) “to exhibit or expose in an
ostentatious, shameless, or aggressive manner”). Having
embarked on a definition, the drafter thought it proper to
specify the required intent.
The government also relies on United States v. Harris,
959 F.2d 246 (D.C. Cir. 1992), where we analyzed a part of
§ 924(c)(1) (1988 ed. Supp. V) (replaced with § 924(c)(1)(B)
by Pub. L. 105-386, 112 Stat. 3469 (1998)) that imposes a 30-
year minimum when the weapon used is a machine gun.
Assuming that this created a sentencing factor, we found that
the government didn’t need to prove that the defendant knew
the precise nature of the weapon he used, reasoning that “there
does not seem to be a significant difference in mens rea
between a defendant who commits a drug crime using a pistol
and one who commits the same crime using a machine gun;
the act is different, but the mental state is equally
blameworthy.” 959 F.2d at 259. The Supreme Court later
construed the same provision (also in its pre-1998 form) and
found that it set out a separate offense rather than a sentencing
factor. Castillo v. United States, 530 U.S. 120 (2000). While
the Court didn’t address what a defendant must know about
his firearm, it did find the difference between carrying a pistol
and carrying a machine gun “great, both in degree and kind,”
id. at 126, a proposition somewhat undermining our analysis
in Harris.1 In any event, our Harris decision simply read the
1
Circuits have disagreed whether the revised machinegun
provision sets out a sentencing factor or a separate offense.
Compare United States v. Harris, 397 F.3d 404, 412-14 (6th Cir.
2005), with United States v. Gamboa, 439 F.3d 796, 810-11 (8th
Cir. 2006).
8
statute as creating a penalty gradation based solely on the
hazard of the weapon itself (which in almost all instances
would likely be obvious to the defendant). That such a
calibration of penalties might be reasonable in that context
says little to support the rather anomalous pattern that would
flow from the government’s reading of § 924(c)(1)(A).
We note that in rejecting any intent requirement for the
discharge provision, the Tenth Circuit broadly reasoned that
because the two provisions penalizing brandishing and
discharging were sentencing factors rather than independent
offenses, “no mens rea [was] required.” Nava-Sotelo, 354
F.3d at 1206. But the proposition that the Constitution
imposes no such requirement (assuming its truth) responds
neither to our concern for disrupting § 924(c)’s apparent
structure nor to the presumption against strict liability in
criminal statutes and the rule of lenity, both of which apply
under Bifulco as much to penalties as to the substantive
offense.
Having concluded that the discharge must be intentional,
we must consider the character of the necessary intent. Like
the Ninth Circuit in Dare, we find that, to trigger the
minimum sentence under the discharge provision, the
defendant must have acted with “general intent.” 425 F.3d at
641 n.3. See, e.g., United States v. Lewis, 780 F.2d 1140,
1142-43 (4th Cir. 1986) (“In the absence of an explicit
statement that a crime requires specific intent, courts often
hold that only general intent is needed.”). “A general intent
crime is one in which an act was done voluntarily and
intentionally, and not because of mistake or accident.” United
States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995) (emphasis
added); see also United States v. Rhone, 864 F.2d 832, 834
(D.C. Cir. 1989) (describing standard jury instruction
regarding general versus specific intent). The exclusion of
mere accident appears to parallel the Model Penal Code’s
9
formula for filling statutory gaps in intent: “When the
culpability sufficient to establish a material element of an
offense is not prescribed by law, such element is established if
a person acts purposely, knowingly or recklessly with respect
thereto.” MODEL PENAL CODE § 2.02(3) (1985); see also id. at
228 (Explanatory Note to § 2.02(3)) (observing “a rough
correspondence” between the default rule requiring purpose,
knowledge, or recklessness and the common law requirement
of “general intent”).
There is no evidence that in discharging his firearm
Brown acted purposely or knowingly. Nor can his conduct
with respect to the discharge be viewed as “reckless.”
Obviously anyone who robs a bank and brandishes a firearm
has already taken risks that themselves render his overall
conduct reckless as the word is used in ordinary language or
in, say, MODEL PENAL CODE § 2.02(2)(c) (“A person acts
recklessly with respect to a material element of an offense
when he consciously disregards a substantial and unjustifiable
risk that the material element exists or will result from his
conduct.”). But if that intent sufficed for the discharge
provision, the separate mens rea requirement for the discharge
provision would be meaningless or virtually so. Cf. United
States v. Ray, 21 F.3d 1134, 1139 (D.C. Cir. 1994) (“It is not
the danger associated with bank robberies that warrants
enhanced punishment under [18 U.S.C.] § 2113(d). It is the
increased danger caused by robberies committed in a certain
way.”). As there is no evidence that the discharge itself arose
out of any act manifesting additional disregard of others’
safety, we reverse the district court’s sentence with respect to
§ 924(c)(1)(A)(iii) and remand for resentencing under
§ 924(c)(1)(A)(ii).
Brown raises two other substantive arguments, but neither
is persuasive. First, Brown’s appellate counsel argues that his
trial counsel furnished ineffective assistance of counsel by not
10
trying to suppress evidence of a nonverbal “statement” Brown
made to a police officer indicating the location of his gun
shortly after his arrest outside the bank. None of the officers
had yet read Brown his rights. But the police officer’s
inquiries fall squarely within the public-safety exception to
Miranda v. Arizona, 384 U.S. 436 (1966), recognized by the
Supreme Court in New York v. Quarles, 467 U.S. 649 (1984).
Failure to raise a meritless claim is not evidence of ineffective
assistance. See United States v. Holland, 117 F.3d 589, 594
(D.C. Cir. 1997).
Second, Brown argues that the district court abused its
discretion by permitting the government’s introduction of
physical evidence found with Brown at the time he was
arrested—including a gun and a bag containing approximately
$23,000 in cash—without a proper evidentiary foundation. In
fact, witnesses testified to every step of the evidence’s
custody, from its original acquisition at the crime scene to its
transmission to FBI agents and its handling by those agents.
* * *
Brown was sentenced on November 1, 2004—after the
Supreme Court’s decision in Blakely v. Washington, 542 U.S.
296 (2004), but before its decision in United States v. Booker,
543 U.S. 220 (2005). During the hearing, the district court
judge proposed to adopt three alternative sentences: one
treating the Sentencing Guidelines as mandatory, a second
treating the Guidelines as mandatory but applying only those
enhancements that reflected facts found by the jury, and a
third treating the Guidelines as advisory. The second and
third options were designed, plainly, to comply with different
remedies that the Supreme Court might choose if it were to
extend Blakely to the Sentencing Guidelines. As we now
know, the Court chose substantially the third. Booker, 543
11
U.S. at 245-46, 259. But the district court judge never
calculated the third variant; Brown’s counsel indicated she
wasn’t ready to proceed with argument under such an
approach.
The government concedes that the first sentence reflected
constitutional Booker error and that, because the constitutional
error was preserved, our review is for harmless error—that is,
we ask whether it appears, “beyond a reasonable doubt, that
the error complained of did not contribute to the sentence
obtained.” See United States v. Simpson, 430 F.3d 1177, 1184
(D.C. Cir. 2005) (quoting Chapman v. California, 386 U.S.
18, 24 (1967)) (internal brackets deleted). It points out that
the district court judge chose the longest sentence in the
ranges he found applicable, and cites the district judge’s
statement that “it could be a much more serious sentence
without [G]uidelines,” and other language to like effect. But
other statements of the district judge cut the other way. In
particular, he acknowledged the existence of multiple
potentially mitigating circumstances—which he was largely
disabled from considering under a mandatory Guidelines
regime:
I understand the family difficulties he’s had and the loss
of family members and illnesses among his family and
his wife’s family and him having had psychiatric
treatment and medications in the past.
As we noted in United States v. Gomez, “[i]f Booker’s
rendering the Guidelines discretionary means anything,” it
must give district court judges greater latitude in assessing
potentially mitigating factors than they had under the
Sentencing Guidelines. 431 F.3d 818, 825 (D.C. Cir. 2005).
Thus the court’s signals appear mixed—on one hand the
district judge suggests that Brown was lucky to get the benefit
of the Guidelines’ limits, and on the other he recognizes that
12
the Guidelines restricted consideration of some mitigating
factors. On this record we find it hard to say that the
government carried its burden of showing that the error was
harmless, and remand for resentencing on the armed-robbery
and felon-in-possession convictions.
* * *
The judgment is vacated and the case remanded for
resentencing.
So ordered.