United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 2, 2008 Decided July 15, 2008
No. 06-3146
UNITED STATES OF AMERICA,
APPELLEE
v.
DWAYNE CASSELL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00270-01)
Mitchell M. Seltzer, appointed by the Court, argued the
cause and filed the briefs for appellant.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese III and Elizabeth Trosman,
Assistant U.S. Attorneys.
Before: TATEL, GARLAND, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: A jury convicted Dwayne Cassell
of several drug and gun crimes, including possession of a
firearm in furtherance of a drug trafficking offense in violation
of 18 U.S.C. § 924(c)(1). We affirmed Cassell’s convictions on
direct appeal, and he now mounts a collateral challenge pursuant
to 28 U.S.C. § 2255, alleging that his trial was subject to a host
of errors by his counsel, the prosecutor, and the court. We reject
all of Cassell’s allegations for the reasons set forth in the district
court’s careful, detailed opinion. We address only one of those
allegations in this opinion: Cassell’s claim that his trial counsel
was constitutionally ineffective for failing to insist that the judge
instruct the jury that possession of a “semiautomatic assault
weapon” was an element of a separate offense under 18 U.S.C.
§ 924(c)(1) that the jury had to find beyond a reasonable doubt.
We consider this issue in depth not because we disagree with the
district court’s judgment, but because we think it important to
have a circuit precedent on the question. We conclude that the
type of firearm possessed by the defendant was a sentencing
factor, which the district court properly found without a jury
under a preponderance-of-the-evidence standard.
I
On July 13, 2000, District of Columbia police officers
executed a search warrant at a house located at 1129 Trinidad
Avenue in Northeast Washington, D.C. Lawrence Hart owned
the house and shared it with his nephew, appellant Cassell.
During the search, the officers found guns, drugs, and drug
paraphernalia.
In a bedroom that Hart later identified as belonging to
Cassell, the police found a blue duffel bag containing two
loaded firearms: a Colt AR-15 semiautomatic rifle and a Cobray
9-mm semiautomatic pistol. They also found an identification
card bearing Cassell’s name and photograph as well as the 1129
3
Trinidad Avenue address, an envelope addressed to Cassell, and
$3154 in cash. In Hart’s own bedroom the police found a loaded
.32 caliber revolver, .22 caliber ammunition, marijuana, and
additional cash, all of which Hart admitted belonged to him.
On the rear porch of the house, in a box on a chair, the
officers recovered a receipt for the purchase of a car in Cassell’s
name, a magazine for a semiautomatic handgun, and a scale. On
the seat of the chair was a plate covered with white, rocklike
crumbs that field-tested positive for cocaine. The plate bore
Cassell’s right thumbprint.
In the dining room of the house was a table with a “hutch”
on top of it. Inside the hutch, the police found a brown bag
containing 71 ziplock bags of cocaine base, one round of 9-mm
ammunition, and one round of .30 caliber ammunition. On the
hutch, they found a court document and a telephone bill in
Cassell’s name. The house’s bathroom, hallway, and kitchen
yielded additional cocaine base, marijuana, and ammunition.
On August 24, 2000, a grand jury charged Cassell with five
crimes: (1) possession with intent to distribute 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii); (2) possession with intent to distribute cocaine
base within 1000 feet of a school, in violation of 21 U.S.C. §
860(a); (3) using, carrying and possessing a firearm during a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)
and (c)(1)(B)(i); (4) unlawful possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. §
922(g)(1); and (5) possession of marijuana, in violation of 21
U.S.C. § 844(a). Cassell went to trial on December 4, 2000.
Four days later, the jury acquitted him of marijuana possession,
but convicted him on all of the other charges. On March 7,
2001, the district court sentenced Cassell to 288 months’
incarceration and 10 years of supervised release. This court
4
affirmed the conviction on June 11, 2002. See United States v.
Cassell, 292 F.3d 788 (D.C. Cir. 2002).
On September 9, 2003, Cassell filed a motion under 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence on
numerous grounds, including the alleged ineffectiveness of both
his trial and appellate counsel. In a memorandum opinion and
order, the district court denied Cassell’s motion. Cassell v.
United States, 2006 WL 2051371 (D.D.C. July 19, 2006).
Cassell then moved for a certificate of appealability under 28
U.S.C. § 2253, which the district court granted. Thereafter,
Cassell filed the instant appeal.
Cassell’s appeal once again raises multiple objections to his
conviction. We reject all of them for the reasons set forth in the
district court’s opinion. In this opinion, we consider only his
claim that trial counsel was ineffective in failing to request a
jury instruction that classified the term “semiautomatic assault
weapon” as an element of a separate offense under 18 U.S.C. §
924(c)(1).
II
A petitioner may bring a claim of ineffective assistance of
counsel “in a collateral proceeding under § 2255, whether or not
the petitioner could have raised the claim on direct appeal.”
Massaro v. United States, 538 U.S. 500, 504 (2003); see United
States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2005). To evaluate
such a claim, we turn to the familiar two-prong test established
in Strickland v. Washington, 466 U.S. 668 (1984). To prove
constitutionally defective representation, the defendant must
show (1) “that counsel’s performance was deficient,” and (2)
“that the deficient performance prejudiced the defense.” Id. at
687. “The latter prong requires the defendant to demonstrate
that ‘there is a reasonable probability that, but for counsel’s
5
unprofessional errors, the result of the proceeding would have
been different.’” United States v. Eli, 379 F.3d 1016, 1019 (D.C.
Cir. 2004) (quoting Strickland, 466 U.S. at 694).
Count Three of the indictment charged Cassell with using
and carrying a firearm during and in relation to a drug
trafficking offense, and with possessing a firearm in furtherance
of such an offense, in violation of 18 U.S.C. § 924(c)(1). The
count was submitted to the jury on the possession-in-furtherance
theory only, and the judge instructed that the offense had two
elements: “that the defendant possessed the firearm,” and “that
the defendant possessed the firearm in furtherance of [a] drug
trafficking offense.” Trial Tr. 572 (Dec. 7, 2000). The court
defined the term “firearm” as “any weapon which . . . expel[s]
a projectile by the action of an explosive.” Id. at 572-73. It
neither mentioned nor defined the term “assault weapon.”
Cassell’s counsel agreed to those instructions and did not object
when they were given. See Appellant’s Br. 37.
After the jury convicted Cassell on Count Three, the district
court determined that the firearm that Cassell possessed -- a Colt
AR-15 semiautomatic rifle -- was a “semiautomatic assault
weapon” for purposes of § 924(c)(1). The relevant provision of
that subsection states: “(B) If the firearm possessed by a person
convicted of a violation of this subsection -- (i) is a . . .
semiautomatic assault weapon, the person shall be sentenced to
a term of imprisonment of not less than 10 years.” 18 U.S.C. §
924(c)(1)(B)(i) (2000).1
1
The semiautomatic assault weapon provision of § 924(c)(1)(B)(i)
expired on September 13, 2004, well after Cassell’s offense and
subsequent conviction. See Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 110105(2), 108
Stat. 1796, 2000 (1994); 18 U.S.C. § 921 note. In all other relevant
respects the current version of the statute is identical to the version at
6
Cassell contends that § 924(c)(1)(B) defines a separate
offense, of which the type of firearm the defendant possessed is
an element, and that his jury should have been so charged.
Instead, and without objection by his counsel, the district court
treated the type of firearm as a sentencing factor that the court
could itself determine based on a preponderance of the evidence.
Cassell argues that his counsel’s failure to object constituted
constitutionally deficient performance under the first prong of
Strickland. He further maintains that this deficient performance
prejudiced him under Strickland’s second prong, because it led
the court to sentence him to a mandatory minimum sentence of
10 years, rather than the 5-year mandatory minimum applicable
to an unspecified type of firearm. Compare 18 U.S.C. §
924(c)(1)(A)(i) (imposing a sentence “of not less than 5 years”),
with § 924(c)(1)(B)(i) (imposing a sentence “of not less than 10
years”).
For the reasons discussed in Parts III and IV below, we
conclude that Cassell’s argument fails to satisfy either prong of
Strickland. Counsel’s failure to argue that the type of firearm
was an element of the offense was not “deficient” because the
type of firearm is not an element of a § 924(c)(1) offense.
Moreover, even if it were an element and counsel were deficient
for not raising the issue, Cassell cannot show that he was
prejudiced by the court’s failure to so charge the jury.
III
If the type of firearm possessed by the defendant constitutes
an element of the § 924(c)(1) offense, then the question must be
submitted to the jury and proven beyond a reasonable doubt.
Castillo v. United States, 530 U.S. 120, 123 (2000). If it is a
issue in this case, and this opinion refers to those common provisions
as the “current” version of the statute.
7
sentencing factor, however, the district judge may find it --
without a jury -- by a preponderance of the evidence. Id. at 123-
24. Section 924(c)(1) provides, in relevant part:
(c)(1)(A) . . . [A]ny person who, during and in relation
to any crime of violence or drug trafficking crime . . . ,
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 or
drug trafficking crime --
(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.
(B) If the firearm possessed by a person convicted of a
violation of this subsection --
(i) is a short-barreled rifle, short-barreled shotgun,
or semiautomatic assault weapon, the person shall
be sentenced to a term of imprisonment of not less
than 10 years; or
(ii) is a machinegun . . . , the person shall be
sentenced to a term of imprisonment of not less
than 30 years.
(C) In the case of a second or subsequent conviction
under this subsection, the person shall --
8
(i) be sentenced to a term of imprisonment of not
less than 25 years; . . .
(D) Notwithstanding any other provision of law -- . . .
(ii) no term of imprisonment imposed on a person
under this subsection shall run concurrently with
any other term of imprisonment imposed on the
person . . . .
18 U.S.C. § 924(c) (2000) (emphasis added); see supra note 1.
Two Supreme Court opinions light our path toward resolving
whether the assault weapon provision is an element or a
sentencing factor. We first describe those precedents and then
apply them to the instant case.
A
The first precedent is Castillo v. United States, 530 U.S. 120
(2000), in which the Court construed a previous version of §
924(c)(1). That version consisted of a single paragraph, which
read in relevant part:
(c)(1) Whoever, during and in relation to any crime of
violence . . . , uses or carries a firearm, shall, in
addition to the punishment provided for such crime of
violence . . . , be sentenced to imprisonment for five
years, and if the firearm is a short-barreled rifle [or a]
short-barreled shotgun to imprisonment for ten years,
and if the firearm is a machinegun, . . . to
imprisonment for thirty years. In the case of his
second or subsequent conviction under this subsection,
such person shall be sentenced to imprisonment for
twenty years . . . . Notwithstanding any other provision
of law, . . . the term of imprisonment imposed under
9
this subsection [shall not] run concurrently with any
other term of imprisonment . . . . No person sentenced
under this subsection shall be eligible for parole . . . .
18 U.S.C. § 924(c)(1) (Supp. V 1988) (emphasis added). A jury
determined that the Castillo defendants had violated § 924(c)(1)
by knowingly using or carrying firearms, and the judge found
that the firearms at issue included machineguns. The judge then
imposed the statute’s mandatory 30-year prison term. The
question before the Supreme Court was whether Congress
intended each reference to a firearm type in § 924(c)(1) to define
a distinct crime or merely to indicate a sentencing factor.
Castillo, 530 U.S. at 123. After considering the statute’s
“language, structure, context, history, and such other factors as
typically help courts determine a statute’s objectives,” the Court
concluded that the references to firearm type defined separate
crimes. Id. at 124.
The Court focused first on the statutory language, the
relevant sentence of which, at the time, read as follows:
“Whoever, during and in relation to any crime of violence . . . ,
uses or carries a firearm, shall . . . be sentenced to imprisonment
for five years, and if the firearm is a . . . machinegun, . . . to
imprisonment for thirty years.” 18 U.S.C. § 924(c)(1) (Supp. V
1988). The Court found that language “neutral.” Castillo, 530
U.S. at 124. It could be read, the Court said, “as setting forth
two basic elements of the offense” -- “uses or carries a firearm”
and “during and in relation to a crime of violence.” Id. On that
reading, the provision’s subsequent reference to “machinegun”
would “merely increas[e] a defendant’s sentence in relevant
cases.” Id. “But, with equal ease,” the Court thought, the
phrase could be read as “creating a different crime containing
one new element.” Id.
10
Although the Court read the statute’s language as neutral,
it found that “its overall structure strongly favors the ‘new
crime’ interpretation.” Id. “Congress,” the Court observed,
“placed the element ‘uses or carries a firearm’ and the word
‘machinegun’ in a single sentence, not broken up with dashes or
separated into subsections.” Id. at 124-25. Moreover, the
following three sentences “refer directly to sentencing: the first
to recidivism, the second to concurrent sentences, the third to
parole.” Id. at 125. The Court found that “[t]hese structural
features strongly suggest that the basic job of the entire first
sentence is the definition of crimes and the role of the remaining
three is the description of factors (such as recidivism) that
ordinarily pertain only to sentencing.” Id.
Important for Cassell’s case, the Court noted a “structural
circumstance[] that suggest[ed] a contrary interpretation.” Id.
That circumstance was Congress’ 1998 reenactment of §
924(c)(1), which “separat[ed] different parts of the first sentence
. . . into different subsections.” Id. This “postenactment
statutory restructuring,” however, could not help the Court
“determine what Congress intended at the time it enacted the
earlier statutory provision.” Id.
The Court then addressed the remaining considerations that
it had identified. It found that courts have not traditionally
regarded firearm types as sentencing factors; that asking a jury
to decide the type of firearm would rarely complicate a trial; that
the legislative history was not helpful; and that the length of the
added mandatory sentence that turned on the presence of a
machinegun weighed in favor of treating the provision as
referring to an element. Summarizing its entire analysis, the
Court concluded “that Congress intended the firearm type-
related words it used in § 924(c)(1) to refer to an element of a
separate, aggravated crime.” Id. at 131.
11
The second governing precedent is Harris v. United States,
536 U.S. 545 (2002), in which the Court interpreted the version
of § 924(c)(1) that applies to Cassell’s case. Harris was indicted
and convicted of knowingly carrying a firearm during and in
relation to a drug trafficking crime, in violation of §
924(c)(1)(A). At sentencing, the district court found by a
preponderance of the evidence that Harris had brandished the
firearm in question, and it sentenced him to the mandatory
minimum sentence of seven years required by §
924(c)(1)(A)(ii). Harris objected on two grounds: (1) that as a
matter of statutory interpretation, brandishing is an element of
a separate offense and not merely a sentencing factor; and (2)
that if the statute makes brandishing a sentencing factor, then the
statute is unconstitutional under Apprendi v. New Jersey, 530
U.S. 466 (2000). On review, the Supreme Court rejected both
claims.
On the first issue, the Court found -- as it had with respect
to the machinegun provision at issue in Castillo -- that the
statutory language did not resolve the question. Harris, 536
U.S. at 552. This time, however, it found that “the structure of
the [brandishing] prohibition suggests” that it is a sentencing
factor. Id. Quoting Castillo, the Court noted that “[f]ederal
laws usually list all offense elements ‘in a single sentence’ and
separate the sentencing factors ‘into subsections.’” Id. It then
described the structure of the version of the statute relevant to
Harris’ (and Cassell’s) case:
Here, § 924(c)(1)(A) begins with a lengthy principal
paragraph listing the elements of a complete crime --
“the basic federal offense of using or carrying a gun
during and in relation to” a violent crime or drug
offense. Toward the end of the paragraph is “the word
‘shall,’ which often divides offense-defining provisions
from those that specify sentences.” And following
12
“shall” are the separate subsections, which explain how
defendants are to “be sentenced.” Subsection (i) sets a
catchall minimum and “certainly adds no further
element.” Subsections (ii) and (iii), in turn, increase
the minimum penalty if certain facts are present, and
those subsections do not repeat the elements from the
principal paragraph.
Id. at 552-53 (citations omitted) (quoting Castillo, 530 U.S. at
124, and Jones v. United States, 526 U.S. 227, 233 (1999)).
“When a statute has this sort of structure,” the Court said,
“we can presume that its principal paragraph defines a single
crime and its subsections identify sentencing factors.” Id. at
553. The Court did not find anything to overcome this
presumption. It noted that there was no federal tradition of
treating brandishing as an offense element. Id. And it further
found that, unlike the provision in Castillo, the “provisions
before us . . . have an effect on the defendant’s sentence that is
more consistent with traditional understandings about how
sentencing factors operate; the required findings constrain,
rather than extend, the sentencing judge’s discretion.” Id. at
554. The Court explained this point as follows:
Section 924(c)(1)(A) does not authorize the judge to
impose “steeply higher penalties” -- or higher penalties
at all -- once the facts in question are found. Since the
subsections alter only the minimum, the judge may
impose a sentence well in excess of seven years,
whether or not the defendant brandished the firearm.
The incremental changes in the minimum -- from 5
years, to 7, to 10 -- are precisely what one would
expect to see in provisions meant to identify matters
for the sentencing judge’s consideration.
13
Id. (quoting Jones, 526 U.S. at 233).
Finally, the Court addressed petitioner Harris’ contention
that the canon of constitutional avoidance counseled against the
single-offense interpretation. Id. at 554-55. The constitutional
question, Harris argued, was raised by the Court’s decision in
Apprendi, which held that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum,’ whether the statute
calls it an element or a sentencing factor, ‘must be submitted to
a jury, and proved beyond a reasonable doubt.’” Id. at 550
(quoting Apprendi, 530 U.S. at 490). As the Court noted,
however, the relevant version of § 924(c)(1)(A) does not
increase the penalty beyond the statutory maximum once
specified facts (like brandishing) are found; such findings “alter
only the minimum” sentence. Id. at 554. Nonetheless, Harris
maintained that it was “at least an open question . . . whether the
Fifth and Sixth Amendments require every fact increasing a
federal defendant’s minimum sentence to be alleged in the
indictment, submitted to the jury, and proved beyond a
reasonable doubt,” and he argued that to “avoid resolving that
question (and possibly invalidating the statute), . . . [the Court]
should read § 924(c)(1)(A) as making brandishing an element of
an aggravated federal crime.” Id. at 555.
The Court was unpersuaded: The “petitioner’s proposed
rule -- that the Constitution requires any fact increasing the
statutory minimum sentence to be accorded the safeguards
assigned to elements -- was rejected 16 years ago in McMillan.”
Id. (citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)). In
McMillan, the Court “sustained a statute that increased the
minimum penalty for a crime, though not beyond the statutory
maximum, when the sentencing judge found, by a
preponderance of the evidence, that the defendant had possessed
a firearm.” Harris, 536 U.S. at 550. Petitioner Harris suggested
14
that Apprendi and related cases had “cast doubt on McMillan’s
viability,” and that the Court “should construe the problem out
of the statute” to “avoid deciding whether McMillan must be
overruled.” Id. at 555. But the Court rejected the suggestion
that it “use the canon to avoid overruling” its own precedent,
particularly since “McMillan was in place when § 924(c)(1)(A)
was enacted.” Id. at 556. Finding that “the avoidance canon
poses no obstacle and the interpretive circumstances point in a
common direction,” the Court held that, “as a matter of statutory
interpretation, § 924(c)(1)(A) defines a single offense” and
“regards brandishing and discharging as sentencing factors to be
found by the judge, not offense elements to be found by the
jury.” Id. In a subsequent part of the opinion, the Court
reaffirmed McMillan and concluded that § 924(c)(1)(A)(ii) is
constitutional. Id. at 568.
B
Having laid out the governing precedents in some detail, we
find the resolution of Cassell’s case straightforward. Unlike the
structure of the version of § 924(c)(1) in effect at the time of
Castillo, the structure of the version relevant here strongly
indicates that possession of a particular type of firearm is a
sentencing factor rather than an offense element. As the Castillo
Court itself noted, the statute no longer has “the element ‘uses
or carries a firearm’ and the word ‘machinegun’ in a single
sentence, not broken up with dashes or separated into
subsections.” 530 U.S. at 125. Instead, Congress has now
“separat[ed] different parts of the first sentence (and others) into
different subsections.” Id. And as Castillo further noted, this
“structural circumstance[] . . . suggest[s] a contrary
interpretation” to the one it reached in that case. Id.
The current statute, as described in Harris, “begins with a
lengthy principal paragraph listing the elements of a complete
15
crime -- ‘the basic federal offense of using or carrying a gun
during and in relation to’ a violent crime or drug offense.”
Harris, 536 U.S. at 552 (quoting Castillo, 530 U.S. at 124).
Following this paragraph are “separate subsections” that set
increasing minimum penalties “if certain facts [i.e., brandishing
or discharging] are present, and those subsections do not repeat
the elements from the principal paragraph.” Id. at 552-53
(referencing § 924(c)(1)(A)(i), (ii), and (iii)). There then
follows a second group of subsections that again set increasing
minimum penalties if certain facts are present, this time facts
relating to the type of firearm involved. See § 924(c)(1)(B)(i),
(ii). And as with the brandishing and discharging subsections,
the subsections referencing firearm type “do not repeat the
elements from the principal paragraph.” Harris, 530 U.S. at
553. Consistent with the Court’s instruction, “[w]hen a statute
has this sort of structure, we can presume that its principal
paragraph defines a single crime and its subsections identify
sentencing factors.” Id.
Turning to the remaining interpretive factors identified in
Castillo, we note that the legislative history is again
inconclusive, and that two of Castillo’s other observations -- that
courts have not traditionally treated firearm type as a sentencing
factor and that asking a jury to decide the type of firearm would
rarely complicate a trial -- again cut against the sentencing-
factor interpretation. More significant, however, is the fact that
the current version of § 924(c)(1) -- unlike that at issue in
Castillo, but like that in Harris -- does not increase the statutory
maximum sentence. Rather, the firearm-type provisions “have
an effect on the defendant’s sentence that is more consistent
with traditional understandings about how sentencing factors
operate; the required findings constrain, rather than extend, the
sentencing judge’s discretion” by “alter[ing] only the minimum
[sentence that] the judge may impose.” Harris, 530 U.S. at 554.
16
Finally, most significant is the fact that the language of §
924(c)(1)(B) -- unlike the pre-1998 text examined in Castillo or
the text of § 924(c)(1)(A)(ii) examined in Harris -- is not
“neutral” on the issue before us. Section 924(c)(1)(B) states:
“If the firearm possessed by a person convicted of a violation of
this subsection -- (i) is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assault weapon, the person shall be
sentenced to a term of imprisonment of not less than 10 years.”
18 U.S.C. § 924(c)(1)(B) (emphasis added). The use of the
phrase “convicted of a violation” indicates that the provision is
to be applied only after a conviction and, hence, only at
sentencing. The referenced “violation” is for “‘the basic federal
offense of using or carrying a gun during and in relation to’ a
violent crime or drug offense.” Harris, 536 U.S. at 552 (quoting
Castillo, 530 U.S. at 124). And, as Harris makes clear, all of
the elements of that crime are contained in the “lengthy principal
paragraph” of § 924(c)(1)(A). Id.
“Against the single-offense interpretation to which these
considerations point,” id. at 554-55, Cassell -- like the defendant
in Harris -- argues that Apprendi counsels a different outcome.
But the Supreme Court rejected that precise argument in Harris,
and so do we. Nor is there anything in the Court’s post-Harris
decisions in Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005) -- two cases that
applied Apprendi to sentencing guidelines -- that would require
a different result. See Blakely, 542 U.S. at 304-05
(distinguishing McMillan because the Washington state
guidelines did not merely impose statutory minima). We
therefore conclude that, unlike in the version of the statute
examined in Castillo, in the current version “Congress intended
the firearm type-related words it used” in § 924(c)(1)(B) to refer
to sentencing factors rather than offense elements. Castillo, 530
17
U.S. at 131. In so doing, we join all but one of the other circuits
that have considered the question.2
Because the district court properly treated Cassell’s
possession of an assault weapon as a sentencing factor, his
counsel was not deficient in failing to demand a jury instruction
on the issue. Accordingly, Cassell cannot satisfy the first prong
of the Strickland test for ineffective assistance of counsel.
IV
Even if possession of a semiautomatic assault weapon were
an element of the § 924(c)(1) offense, Cassell’s ineffective
assistance claim would not succeed because he cannot show that
counsel’s failure to demand a jury instruction on the issue
caused him prejudice -- as required by Strickland’s second
prong. There is, in short, no “reasonable probability” that, if the
court had left the question of Cassell’s possession of an assault
weapon to the jury, “the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
The Supreme Court’s opinion in Neder v. United States, 527
U.S. 1 (1999), makes this conclusion inescapable. In Neder, a
district court wrongly determined that the materiality of false
statements was not an element of tax fraud that had to be
2
See United States v. Harrison, 272 F.3d 220 (4th Cir. 2001);
United States v. Barton, 257 F.3d 433 (5th Cir. 2001); United States
v. Sandoval, 241 F.3d 549 (7th Cir. 2001); United States v. Gamboa,
439 F.3d 796 (8th Cir. 2006); United States v. Avery, 295 F.3d 1158
(10th Cir. 2002); United States v. Ciszkowski, 492 F.3d 1264 (11th
Cir. 2007). But see United States v. Harris, 397 F.3d 404 (6th Cir.
2005).
18
submitted to the jury, and instead decided the issue on its own.
Applying the harmless error standard of review -- a standard
more favorable to the defendant than the prejudice prong of
Strickland, see United States v. Saro, 24 F.3d 283, 286-87 (D.C.
Cir. 1994) -- the Supreme Court found the absence of a jury
instruction harmless. It did so on the ground that the
government’s trial evidence, which showed that the defendant
had failed to report over $5 million in income, “incontrovertibly
establishe[d] that [his] false statements were material to a
determination of his income tax liability.” Neder, 527 U.S. at
16. No jury, the Court said, “could reasonably [have found] that
Neder’s failure to report substantial amounts of income on his
tax returns was not a ‘material matter.’” Id.
The same is true with respect to Cassell’s possession of an
assault weapon. At trial, a police officer testified that during the
search of the Trinidad Avenue house, the police found a blue
duffel bag in Cassell’s bedroom, at the foot of his bed. The
officer testified that the bag contained two firearms: a Colt AR-
15 semiautomatic rifle, and a Cobray 9-mm semiautomatic
pistol. A Special Agent of the Bureau of Alcohol, Tobacco, and
Firearms also identified the rifle as a Colt AR-15. Cassell has
not disputed this identification, nor suggested that he could. At
the time of Cassell’s offense and trial, the statute defined
“semiautomatic assault weapon” to include a “Colt AR-15,” see
18 U.S.C. § 921(a)(30)(A)(iv) (2000), and the government was
certainly entitled to a jury instruction to that effect.
Accordingly, the trial evidence “incontrovertibly establishe[d],”
Neder, 527 U.S. at 16, that one of the weapons in the bag was a
semiautomatic assault weapon.
The only remaining question is whether there is any
reasonable probability that the jury could have found that
Cassell did not possess the AR-15. Count Three of the
indictment charged him with possessing the AR-15 and the
19
Cobray pistol in furtherance of a drug trafficking offense, and
those were the only weapons the government contended he
possessed. See Trial Tr. 178, 184-85 (Dec. 5, 2000) (opening
argument); Trial Tr. 584, 608 (Dec. 7, 2000) (closing argument).
The court instructed the jury that, to convict Cassell on Count
Three, it had to find that he possessed “a” firearm, Trial Tr. 572
(Dec. 7, 2000), and the verdict form makes clear that the jury so
found, see Verdict Form at 2. There is thus no doubt that the
jury determined that Cassell possessed at least one of the two
weapons. And because both guns were in the same bag, and
Cassell has never offered any scenario under which the jury
could have found that he possessed one gun but not the other,
there is no reasonable probability that the jury would have
acquitted Cassell of possessing the AR-15 semiautomatic assault
weapon in furtherance of a drug trafficking offense.3
In sum, we conclude both that Cassell’s counsel did not err
in failing to request a jury instruction that firearm type was an
offense element, and that, in any event, Cassell was not
prejudiced by the absence of such an instruction. Cassell thus
3
Cf. United States v. Johnson, 331 F.3d 962, 969 (D.C. Cir. 2003)
(ruling, in a case in which the evidence showed that the defendant had
tossed away two bags of drugs that together held more than 50 grams
of cocaine base, that there was no plain error in the court’s failure to
instruct the jury regarding drug quantity because the defendant
proffered “no scenario under which [the jury] could have convicted
him of unlawful possession with intent to distribute cocaine base, yet
found that the quantity involved was less than 50 grams”); United
States v. Webb, 255 F.3d 890, 901 (D.C. Cir. 2001) (finding no plain
error in the failure to instruct the jury on the issue of drug quantity,
where the defendant “offer[ed] no scenario under which the jury could
have convicted him of the [drug] transactions, yet rationally found that
they involved different quantities than those testified to by the
government chemist”).
20
cannot satisfy either prong of Strickland’s two-prong test, and
we must deny his claim of ineffective assistance of counsel.
V
For the foregoing reasons, the judgment of the district court
is, in all respects,
Affirmed.