In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 12‐1250 & 12‐1251
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
THOMAS CURETON,
Defendant‐Appellant.
____________________
Appeals from the United States District Court for the
Southern District of Illinois.
Nos. 10 CR 30106 & 10 CR 30200 — G. Patrick Murphy, Judge.
____________________
ARGUED NOVEMBER 26, 2012 — DECIDED JANUARY 13, 2014
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. After Thomas Cureton’s room‐
mate failed to bring him $9,000 in cash that he had hidden in
their freezer, he kidnapped her, assaulted her, held a gun to
her to her head, and demanded that she call relatives to ob‐
tain cash. A jury convicted Cureton of attempted extortion
and interstate communication of a ransom request, as well as
three counts of drug distribution for events from different
days that were tried at the same time. In light of the over‐
2 Nos. 12‐1250 & 12‐1251
whelming evidence against him, we find that any error in
admitting evidence that Cureton had obtained the cash by
robbing drug customers at gunpoint was harmless. Howev‐
er, we agree with him that one of his two 18 U.S.C. §
924(c)(1) convictions for using a firearm in connection with a
violent felony must be vacated. While the government main‐
tains two convictions are proper because he used the gun in
connection with two different predicate offenses, both con‐
victions are based on the exact same conduct—Cureton
pointing a gun at his roommate and demanding she make
calls to obtain money. Because there is only a single use of a
single gun, and the predicate offenses were committed sim‐
ultaneously without any differentiation in conduct, only one
§ 924(c)(1) conviction can stand. As a result, we vacate Cu‐
reton’s sentence and remand for resentencing.
I. BACKGROUND
Two criminal cases against Thomas Cureton were tried
together. In the first case, the government charged Cureton
with four counts of distributing crack cocaine and one count
of being a felon in possession of a firearm. At trial, the gov‐
ernment presented evidence that on December 31, 2009, Jan‐
uary 4, 2010, and January 7, 2010, Cureton sold crack cocaine
to a confidential informant in Belleville, Illinois. On Decem‐
ber 31, 2009, a police inspector watched as a confidential in‐
formant called Cureton to set up a drug buy. The inspector
searched the informant, gave him $60 in recorded bills,
watched as the informant and Cureton entered the same
building, and then received crack cocaine from the inform‐
ant that the informant said Cureton sold him. Another of‐
ficer maintained surveillance on Cureton as he left his home
and drove to the building to meet the informant.
Nos. 12‐1250 & 12‐1251 3
The informant made two more crack cocaine buys from
Cureton on January 4, 2010. In similar fashion to the Decem‐
ber 31 purchase, an officer watched Cureton leave his
apartment and proceed to the agreed upon location. In the
first buy that day, Cureton and the informant both entered
the building upon their arrival. Soon after Cureton arrived,
the informant left the building and returned to the inspector
with crack cocaine that he said he purchased from Cureton
while in the building. This sale took place at the apartment
of William Bosley, who testified that he watched the drug
transaction between Cureton and the informant. In the sec‐
ond January 4 buy, the inspector stated that he watched the
informant get into Cureton’s car, that no one else was in the
car, and that the informant came to the inspector a few
minutes later with crack cocaine he said he bought from Cu‐
reton. The government contended that the informant also
bought crack cocaine from Cureton on January 7, but the ju‐
ry acquitted Cureton of this charge.
During a warrant search of Cureton’s home later in the
day on January 7, law enforcement agents found inside Cu‐
reton’s wallet one of the marked bills that agents had given
to the confidential informant on December 31, 2009 to buy
crack cocaine from Cureton. The second controlled buy had
taken place in Bosley’s apartment, and officers recovered
from Bosley’s ceiling tiles two pistols in a plastic bag, am‐
munition, and an electronic scale that Bosley said Cureton
had hidden there. Cureton’s fingerprints were found on the
bag containing the pistols and also on the scale.
In the second case, Cureton faced charges of interstate
communication of a ransom request, attempted extortion,
and two counts of possession of a firearm in furtherance of a
4 Nos. 12‐1250 & 12‐1251
crime of violence for events on June 14, 2010. Two days ear‐
lier, on June 12, a man named Eddie Sakosko had approxi‐
mately $9,800 in cash on him from the recent sale of his
home. Sakosko, Jeffrey Day, and a few other friends decided
to use some of the money to buy crack cocaine. Day called
Cureton, and Cureton delivered drugs to the group. The
friends smoked all the crack cocaine and wanted more, so
they called Cureton again, and Cureton returned. This time,
after Cureton, Day, and Sakosko went into a garage, Cureton
pulled out a gun and demanded money from Sakosko. At
one point, Sakosko tried to get the gun away from Cureton,
and the gun discharged. (No one was injured.) Cureton left
with $9,500 of Sakosko’s cash, and Day and his associates
called the police and reported the robbery.
Two days later, Cureton and his wife LaQuita Cureton
(we will refer to her by her first name for convenience) left
the apartment they shared with eighteen‐year‐old Ashley
Lawrence and her boyfriend, Demetrius Anderson, who was
also LaQuita’s brother. A short time later, the police arrived
looking for Cureton. Anderson talked to LaQuita on the
phone after the police left, and she relayed that she and Cu‐
reton wanted cash and LaQuita’s puppy brought to them. It
was decided on the phone that having Lawrence bring the
money to them would be less suspicious because the police
had seen Anderson. Anderson then directed Lawrence to
bring $9,000 in cash that was hidden in the freezer to Cu‐
reton and LaQuita in a nearby park. He also told Lawrence
to bring the puppy.
Lawrence testified at trial that she put the money in a
newspaper, which she put inside a plastic bag, and that she
then carried both the package and LaQuita’s puppy toward
Nos. 12‐1250 & 12‐1251 5
the park. Lawrence said she dropped the newspaper several
times as she attempted to also hold the dog and at some
point realized the money was missing. When she noticed
that the money was gone, she said she called LaQuita right
away and told her what had happened. As Lawrence was
retracing her steps looking for the cash, Cureton arrived in a
friend’s car and demanded to know where the money was,
saying to her that he “shot a motherf’er in the head for the
money.” He ordered Lawrence to get in the car, and they
went to a friend’s house. Inside, in the basement, Cureton
screamed at Lawrence, punched her, threatened her, and
questioned her about where the money was. Cureton even‐
tually acquiesced to her request for a chance to find the
money. Anderson and LaQuita picked up Lawrence and
drove her to retrace her steps, but the search was unsuccess‐
ful.
When Lawrence returned to the house, Cureton took her
behind a garage and punched her repeatedly, broke her
nose, kicked her, choked her, and tied her up. He also made
a phone call and instructed the person on the receiving end
of the line to bring him “that thing.” Cureton’s brother ar‐
rived about ten minutes later and handed Cureton a gun.
Cureton put the gun to Lawrence’s head and told her it was
her last chance.
Cureton, Lawrence, and LaQuita then got into the Curet‐
ons’ parked car, and, under pressure from Cureton, she be‐
gan making calls to family members. Lawrence first called
her mother, saying she needed money to get out of a prob‐
lem, but her mother was hesitant in light of Lawrence’s past
history of lying. She called her stepfather and told him that
she needed money and was in trouble, but he did not offer
6 Nos. 12‐1250 & 12‐1251
to provide money either. Finally, she reached her grandfa‐
ther, who also had doubts about Lawrence’s request. Cu‐
reton took the phone and spoke to Lawrence’s grandfather,
who then agreed to make a wire transfer of about $4,500.
Cureton, Lawrence, and LaQuita then headed back to their
apartment. Police officers contacted by Lawrence’s family
were present there, and Cureton was ultimately arrested and
charged with interstate communication of a ransom request,
attempted extortion, and two counts of possession of a fire‐
arm in furtherance of a crime of violence.
Before trial, Cureton’s attorney moved in limine to bar
any evidence that Cureton had stolen $9,500 at gunpoint
from prospective drug buyers on June 12, 2010. The district
court ruled that the evidence was relevant to Cureton’s mo‐
tive and allowed it.
A jury convicted Cureton on eight of the charged counts
and found him not guilty on one count of drug distribution.
The judge sentenced Cureton to concurrent 360‐month terms
for the three drug distribution convictions. Concurrent to
that, the judge imposed a 120‐month sentence on the felon in
possession of a firearm count, a concurrent 240‐month sen‐
tence for the interstate communication of a ransom request
conviction, and another concurrent 240‐month sentence for
the attempted extortion count. Consecutive to these sentenc‐
es, the judge imposed a sentence of 84 months for using a
firearm during a crime of violence in violation of 18 U.S.C. §
924(c)(1) for the crime of violence of an interstate communi‐
cation of a ransom request. The judge imposed another con‐
secutive sentence of 300 months’ imprisonment for using a
firearm during a second or successive crime of violence in
violation of 18 U.S.C. § 924(c)(1), this time for the crime of
Nos. 12‐1250 & 12‐1251 7
violence of using a firearm in connection with the attempted
extortion. The result was a total sentence of 744 (360 + 84 +
300) months’ imprisonment. Cureton appeals.
II. ANALYSIS
A. Evidence of Uncharged Robbery
Cureton first argues that the jury should not have been
allowed to hear evidence that he took $9,500 at gunpoint
from his drug customers on June 12, 2010. Cureton was not
charged in this case with any crime for any of the events that
took place on June 12, and he maintains that the evidence of
the June 12 robbery of drug customers improperly suggested
to the jury that he had a propensity for violence and for sell‐
ing drugs. Therefore, he argues, Federal Rule of Evidence
404(b) precludes its admission. Where, as here, the defend‐
ant timely objected to the admission of the evidence before
the district court, we review the decision to allow the evi‐
dence for an abuse of discretion. United States v. Richards, 719
F.3d 746, 758 (7th Cir. 2013).
The district court admitted the testimony of the June 12
incident in part on the basis that the story of attempted ex‐
tortion and ransom could not be told otherwise. The court
stated that Lawrence’s story of losing $9,000 raised the ques‐
tion of why she was carrying that much cash, and also said
that the story would not make any sense unless the jury was
given background on how Cureton acquired the money.
This explanation sounds like an “inextricably intertwined”
rationale, a rationale which we now disfavor because it had
become “overused, vague, and quite unhelpful.” See United
States v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010). In‐
stead,“[i]f evidence is not direct evidence of the crime itself,
8 Nos. 12‐1250 & 12‐1251
it is usually propensity evidence simply disguised as inextri‐
cable intertwinement evidence, and is therefore improper, at
least if not admitted under the constraints of Rule 404(b).” Id.
at 718.
Federal Rule of Evidence 404(b) provides that evidence of
a prior bad act “is not admissible to prove a person’s charac‐
ter in order to show that on a particular occasion the person
acted in accordance with the character.” Such evidence may
be admissible for other purposes, however, including the
purpose the government asserts here: motive. See Fed. R.
Evid. 404(b)(2); United States v. Spiller, 261 F.3d 683, 689 (7th
Cir. 2001).
The district court also ruled that the way Cureton ac‐
quired the $9,000 went to the issue of motive, a permissible
reason under Rule 404(b). The district court recognized that
the June 12 evidence was “prejudicial as it could be,” but
concluded it was not unlawfully prejudicial and was rele‐
vant. The evidence was admitted at trial, and the district
court instructed the jury at the close of the evidence: “You
have heard evidence that the defendant committed acts oth‐
er than the ones charged in the indictment—specifically, that
the defendant robbed Everett—that is Eddie—Sakosko at
gunpoint … . If you decide that he [robbed Sakosko] then
you may consider this evidence to help you decide the de‐
fendant’s motive for committing the acts charged in the in‐
dictment. You may not consider it for any other purpose.
Keep in mind that the defendant, Thomas Cureton, is on trial
here for the offenses charged in the indictment, not for the
other acts.”
Cureton maintains that the testimony regarding the June
12 events should not have been allowed to show his motive
Nos. 12‐1250 & 12‐1251 9
for the ransom and attempted extortion. First, he argues
there is no evidence that the money Lawrence took from the
freezer and was on her way to bring him in the park was the
same money Cureton obtained in the robbery. But it was cer‐
tainly a permissible inference, and a strong one, that the
$9,000 Cureton stored in his freezer—not a place one nor‐
mally keeps thousands of dollars in cash—came from the
robbery two days earlier.
Cureton also argues that the way he acquired the money
did not give him a greater motive to recover the $9,000 than
had he acquired the money in some other fashion. Instead,
he contends that the evidence of robbing his drug clients at
gunpoint suggested he was a person likely to use violence in
pursuit of money, and he argues that the testimony that per‐
sons purchased crack cocaine from Cureton twice on June 12
served only to paint Cureton as someone with a propensity
to sell drugs. The government, on the other hand, argued at
trial that the robbery showed why Cureton needed to get
away from the police and showed his motive for extortion,
in that Cureton and LaQuita could not get away without the
$9,000 and desperately needed the money.
We have cautioned about the danger of applying Rule
404(b) too loosely to admit prior bad acts “without paying
close attention to both the legitimacy of the purpose for
which the evidence is to be used and the need for it.” United
States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012). In Miller, for
example, we ruled that evidence of a prior felony conviction
for possession of cocaine with the intent to distribute should
not have been admitted in a case where a defendant was
charged with the same crime eight years later, along with
other charges. While the earlier felony conviction was rele‐
10 Nos. 12‐1250 & 12‐1251
vant to establish the defendant’s status as a felon in light of a
felon in possession charge in the case, we ruled that the
“admission of the details” of the prior conviction violated
Rule 404(b). Id. at 700; cf. United States v. Cunningham, 103
F.3d 553, 556‐57 (7th Cir. 1996) (“The greater the overlap be‐
tween propensity and motive, the more careful the district
judge must be about admitting under the rubric of motive
evidence that the jury is likely to use instead as a basis for
inferring the defendant’s propensity, his habitual criminali‐
ty, even if instructed not to. But the tool for preventing this
abuse is Rule 403, not Rule 404(b).”). Here too, it is not clear
that the details of how Cureton obtained the $9,000 were rel‐
evant. Defense counsel argued before trial that all that mat‐
tered was that Cureton had $9,000, and that the circumstanc‐
es of how he obtained the money were not relevant to the
matters at trial and would only inflame the jury. In addition,
the government put on three witnesses at trial to testify that
Cureton had taken the money after a drug deal; why three
witnesses were necessary is also not clear.
Ultimately we need not decide if the evidence was
properly admitted because even if it was not, we would next
look to see whether its admission was nonetheless harmless.
United States v. Stevenson, 656 F.3d 747, 751 (7th Cir. 2011). In
assessing whether an error is harmless, we ask whether an
average juror would find the prosecution’s case significantly
less persuasive without the improper evidence. Miller, 673
F.3d at 700. The burden of demonstrating harmlessness rests
with the government. O’Neal v. McAninch, 513 U.S. 432, 438‐
39 (1995); United States v. Robinson, 724 F.3d 878, 888 (7th Cir.
2013).
Nos. 12‐1250 & 12‐1251 11
In this case, the evidence that Cureton kidnapped and
ransomed Lawrence was overwhelming and essentially un‐
challenged. Lawrence testified in detail about how Cureton
treated her, his plan to extort money from her family mem‐
bers, and the calls she made to her family. Cureton’s counsel
did not cross examine Lawrence at trial. The admission of
the challenged evidence did not prejudice Cureton on the
counts of attempted extortion or communication of a ransom
request.
We also find the admission of the challenged evidence
harmless on the drug distribution counts. The three con‐
trolled buys that led to convictions were all supported by the
testimony of a confidential informant who testified at trial.
In addition, the jury heard that law enforcement officials
were present while the informant and Cureton made phone
calls to set up the deals and that they watched as Cureton
left his home and went to the agreed upon meeting place
during each of the deals. Another witness, William Bosley,
testified that he watched the second deal between Cureton
and the confidential informant in Bosley’s apartment, and
Cureton’s fingerprints were found on an electronic scale and
a bag containing pistols that Bosley said Cureton had hidden
in Bosley’s ceiling tiles. Notably too, some of the “buy mon‐
ey” provided to the informant for the sole purpose of buying
drugs during the first sale was found in Cureton’s wallet
seven days later. That the jury acquitted Cureton on one of
the drug distribution counts also suggests it was not swayed
by the June 12 evidence. Under the circumstances of this
case, we conclude that the admission of the challenged evi‐
dence was harmless.
12 Nos. 12‐1250 & 12‐1251
B. Multiple 18 U.S.C. § 924(c)(1) Convictions
Cureton pointed a single gun at Lawrence a single time.
For that single use of a firearm, he was convicted twice of
violating 18 U.S.C. § 924(c)(1). Cureton, however, maintains
that his conduct in this case can support only one conviction
for violating § 924(c)(1).
Section 924(c)(1) provides that:
any 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 punish‐
ment provided for such crime of violence or drug traf‐
ficking crime
receive a term of imprisonment of not less than 5 years. 18
U.S.C. § 924(c)(1)(A)(i). That minimum term of imprison‐
ment is mandatory. See id.; United States v. States, 652 F.3d
734, 744 (7th Cir. 2011). The statute further provides that
“[i]n the case of a second or subsequent conviction under
this subsection,” the defendant shall be sentenced to a term
of imprisonment of at least 25 years, another sentence for
which judges have no discretion. 18 U.S.C. § 924(c)(1)(C)(i).
Each term imposed for a conviction for violating §
924(c)(1)(C) must run consecutive to the term for any other
conviction. See id.; States, 652 F.3d at 744.
Here, the government requested, and the district court
imposed, two separate § 924(c) convictions on the basis that
Cureton used the gun during the commission of two predi‐
cate “crimes of violence”: one, the interstate communication
of a ransom request, and the other, attempted extortion. (Cu‐
reton does not contest that both crimes are “crimes of vio‐
Nos. 12‐1250 & 12‐1251 13
lence” under the statute. Nor does he contest that he used
the gun “during and in relation to” or “in furtherance of” the
predicate crimes.) The offenses of communication of an in‐
terstate ransom request and attempted extortion were prem‐
ised on the exact same conduct—the telephone calls to Law‐
rence’s relatives demanding money for her release. The gov‐
ernment agrees that Cureton committed the two predicate
offenses simultaneously and that there is no distinction in
the conduct that gave rise to the two predicate offenses. Nor
is there any distinction in the use of the firearm, as Cureton
pointed the gun at Lawrence a single time.
But because the predicate offenses of interstate commu‐
nication of a ransom request and attempted extortion have
different elements and are distinct offenses, the government
maintains that two § 924(c) convictions are proper here. It is
true that each predicate offense contains an element that the
other does not, and neither is a lesser included offense of the
other; Cureton does not maintain that his convictions for
both interstate communication of a ransom request and at‐
tempted extortion violate the Double Jeopardy Clause of the
United States Constitution. Cf. Blockburger v. United States,
284 U.S. 299, 304 (1932); United States v. Loniello, 610 F.3d 488,
491 (7th Cir. 2010). With no Double Jeopardy violation, the
government maintains the two § 924(c) convictions should
stand.
The absence of a Double Jeopardy problem does not end
the inquiry, however. The issue here is one of statutory in‐
terpretation, not of constitutional reach, so the question we
focus on is whether a defendant may receive multiple 18
U.S.C. § 924(c) convictions for a single firearm use when the
predicate offenses are also committed simultaneously and
14 Nos. 12‐1250 & 12‐1251
without any distinction in conduct. We review this question
of statutory interpretation de novo. See United States v.
O’Hara, 301 F.3d 563, 568 (7th Cir. 2002).
Although the government contends otherwise, our circuit
has not yet resolved this question. So‐called “unit of prose‐
cution” questions have long arisen before the courts. Does a
baker who sells four loaves of bread on a single Sunday vio‐
late a prohibition on working on Sundays once, or four
times? Lord Mansfield wrote for a unanimous court in
Crepps v. Durden, 98 Eng. Rep. 1283 (K.B. 1777), that doing so
constitutes only one offense because “[h]ere, repeated of‐
fenses are not the object which the Legislature had in view in
making the statute: but singly, to punish a man for exercis‐
ing his ordinary trade and calling on a Sunday.” Id. at 1287.
In a similar vein our Supreme Court ruled that transporting
two women in the same car on the same trip constituted on‐
ly one violation of the Mann Act’s prohibition on transport‐
ing in interstate commerce “any woman or girl for the pur‐
pose of prostitution or debauchery, or for any other immoral
purpose.” Bell v. United States, 349 U.S. 81, 82 (1955). The
Court stated that the statute did not contain a clear expres‐
sion of the desired unit of prosecution, and it reasoned that
when “Congress does not fix the punishment for a federal
offense clearly and without ambiguity, doubt will be re‐
solved against turning a single transaction into multiple of‐
fenses.” Id. at 84.
Indeed, it is Congress who establishes and defines of‐
fenses, and whether a particular course of conduct involves
one or more distinct offenses under a statute depends on
Congress’s choice. Sanabria v. United States, 437 U.S. 54, 69‐70
(1978). That is, the legislature defines the unit of prosecution.
Nos. 12‐1250 & 12‐1251 15
Nat’l Ass’n of Home Builders v. Occupational Safety & Health
Admin., 602 F.3d 464, 467 (D.C. 2010). Our task here, deter‐
mining the “unit of prosecution” in a § 924(c) case, i.e., “the
minimum amount of activity for which criminal liability at‐
taches,” is not a straightforward one. See United States v. Mo‐
ses, 513 F.3d 727, 731 (7th Cir. 2008) (citation omitted); see also
Callanan v. United States, 364 U.S. 587, 597 (1961) (describing
unit of prosecution as “whether conduct constitutes one or
several violations of a single statutory provision”). A convic‐
tion under the statute depends upon an underlying crime of
violence or drug trafficking crime, but Ҥ 924(c) creates an
offense distinct from the underlying federal felony.” Simpson
v. United States, 435 U.S. 6, 10 (1978).
Following the Supreme Court’s Mann Act decision in
Bell, we have ruled that a defendant may not be separately
charged with unlawful possession of multiple stolen fire‐
arms under 18 U.S.C. § 922(j)1 when the firearms were ac‐
quired at the same time and stored at the same location.
McFarland v. Pickett, 469 F.2d 1277, 1279 (7th Cir. 1972); see
also Moses, 513 F.3d at 731; United States v. Buchmeier, 255
F.3d 415, 422 (7th Cir. 2001). That is, when a defendant’s
possession of multiple firearms is “simultaneous and undif‐
ferentiated,” only one § 922(j) violation may be charged re‐
gardless of the quantity of firearms possessed. Buchmeier, 255
F.3d at 422. Likewise, a single act of gun possession can re‐
sult in only one conviction under 18 U.S.C. § 922(g), even if
1 That statute makes it unlawful to, among other things, “receive, pos‐
sess, conceal, store, barter, sell, or dispose of any stolen firearm or stolen
ammunition” that has been in interstate or foreign commerce, “knowing
or having reasonable cause to believe that the firearm or ammunition
was stolen.” 18 U.S.C. § 922(j).
16 Nos. 12‐1250 & 12‐1251
the defendant violated § 922(g) in multiple ways or pos‐
sessed multiple firearms at the same time. United States v.
Bloch, 718 F.3d 638, 643 (7th Cir. 2013) (ruling that convic‐
tions for both possession of firearm by a felon in violation of
§ 922(g)(1) and by a person with a misdemeanor domestic
violence conviction in violation of § 922(g)(9) were improper
when there was only one gun possession, and holding that
only a single conviction was appropriate); see also United
States v. Parker, 508 F.3d 434, 440 (7th Cir. 2007) (Ҥ 922(g)
cannot support multiple convictions based on a single fire‐
arm possession because the allowable unit of prosecution is
the incident of possession, not the defendant’s membership
in a class (or classes) of persons disqualified from posses‐
sion.”).
We have also held that distinctly committed crimes, even
those committed on the same day, can support multiple
§ 924(c) violations and the consecutive sentences that result.
United States v. Paladino, 401 F.3d 471, 478‐79 (7th Cir. 2005).
So where an armed defendant sold crack to one person in
the morning, and after arming himself again sold crack to
another person in the afternoon, we said, “These were un‐
questionably separate drug offenses, and therefore his carry‐
ing of a gun during each of them constituted two violations
of section 924(c).” Id. And we affirmed an enhancement for
the use of a bomb to rob a bank even though the defendant
had been convicted under § 924(c)(1)(A) for the use of a fire‐
arm during the same bank robbery, reasoning that the use of
a bomb was substantively and substantially different than
the use of a firearm. United States v. White, 222 F.3d 363, 375‐
76 (7th Cir. 2000). In reaching that decision, we looked in
part to the fact that 18 U.S.C. § 924(c) provides for a separate
offense when a defendant uses a destructive device such as a
Nos. 12‐1250 & 12‐1251 17
bomb to commit a crime. See id. at 375 (discussing 18 U.S.C.
§ 924(c)(1)(B)(ii)). Since the defendant was convicted under §
924(c)(1)(A) for using a firearm, that statute’s five‐year sen‐
tence for using a firearm did not account for the use of the
bomb and the enhancement was proper. Id.
Unlike Paladino or White, Cureton’s case involves two
predicate crimes that occurred simultaneously and without
any distinction in conduct along with a single use of a fire‐
arm. The government maintains that we determined in Unit‐
ed States v. Cappas, 29 F.3d 1187 (7th Cir. 1994), that multiple
convictions are permissible in such a situation. But we disa‐
gree that Cappas resolved the question we have before us
now. The defendant in Cappas was charged with multiple
counts, including multiple § 924(c) counts. One of those §
924(c) counts, count 12, charged that he used a gun in rela‐
tion to two predicate offenses: a drug conspiracy and an ex‐
tortion.
Consistent with our reasoning in cases like McFarland, we
stated in Cappas that the mere use of multiple guns in a sin‐
gle drug conspiracy could not support multiple convictions
under § 924(c). Id. at 1189. Because another count alleged
that Cappas violated § 924(c) by using a gun in connection
with the conspiracy, the government argued that the jury
based its § 924(c) conviction in count 12 on the use of a gun
in connection with extortion, not in connection with the con‐
spiracy. It was in this context that we made the statements
the government seizes upon now: “While a defendant can‐
not be convicted twice under § 924(c) for using two guns in
connection with the same drug trafficking or violent offense,
separate convictions are permissible so long as the court’s
instructions require the jury to connect each gun to a separate
18 Nos. 12‐1250 & 12‐1251
predicate offense. And by ‘separate offense,’ we mean no
more than that the two cannot be the same offense for dou‐
ble jeopardy purposes.” Id. at 1190 (citations omitted). But
we followed that statement with, “Therefore, if the jury finds
that a defendant used one gun in connection with a narcotics
distribution count, and another gun in connection with a gen‐
eral conspiracy (of which that distribution was a part), he
may be convicted on two § 924(c) charges.” Id. (emphases
added).
Cappas did not, however, present us with the issue we
have now, that of simultaneous predicate offenses and a sin‐
gle use of a single gun. Read out of context, some of our lan‐
guage in Cappas might suggest that so long as there are dif‐
ferent predicate offenses, like here, multiple § 924(c) convic‐
tions can result. But we clearly did not hold that multiple §
924(c) convictions may result from predicate offenses com‐
mitted simultaneously and without any differentiation in
conduct, and a single use of a firearm, as that was not an is‐
sue before us there. And our statement that using “one gun”
in connection with a distribution count and “another gun” in
connection with a general conspiracy makes clear that we
were not discussing a single use of a firearm as we have
here. See id. at 1190.
Nor did we resolve the issue before us today in United
States v. Curtis, 324 F.3d 501 (7th Cir. 2003), another case to
which the government points. Curtis involved a challenge to
convictions under 18 U.S.C. § 924(j), which makes it an of‐
fense to “cause[ ] the death of a person through the use of a
firearm” while “in the course of a violation of” § 924(c). The
question in Curtis was whether the defendants could be con‐
victed of two violations of 18 U.S.C. § 924(j) for two separate
Nos. 12‐1250 & 12‐1251 19
killings where both § 924(j) counts had the same predicate §
924(c) violation (the same drug conspiracy). We ruled that
the two § 924(j) convictions were proper, one for each mur‐
der. Id. at 508‐09. That interpretation of § 924(j) makes sense
and is not at all inconsistent with Cureton’s position, as the
defendants in Curtis caused the death of two different per‐
sons on two different days.
So we have not yet confronted whether a defendant like
Cureton may be convicted multiple times of violating
§ 924(c) for the single use of a single gun where the underly‐
ing predicate offenses involve the exact same conduct. The
statute makes one a criminal if he “uses,” “carries,” or “pos‐
sesses” a firearm “during and in relation to any crime of vio‐
lence or drug trafficking crime.” The statute does not punish
the mere use, carriage, or possession of a firearm; to do so
would run afoul of the Second Amendment. See District of
Columbia v. Heller, 554 U.S. 570 (2008). Nor is it enough to
look simply at the predicate offense, as the government ar‐
gues we should do. Section 924(c)(1) imposes its punishment
based on the use of a firearm (and provides for increased
punishment based on how the firearm is used)—not on the
nature of the predicate offense. So the unit of prosecution is
the use, carriage, or possession of a firearm during and in
relation to a predicate offense. See United States v. Phipps, 319
F.3d 177, 184 (5th Cir. 2003); see also United States v. Anderson,
59 F.3d 1323, 1328 (D.C. Cir. 1995) (en banc) (reasoning that
Congress intended to “penalize the choice of using or carry‐
ing a gun in committing a crime” and citing statement of
amendment sponsor Senator Mansfield saying, “[T]his bill
provides for the first time a separate and additional penalty
for the mere act of choosing to use or carry a gun in commit‐
ting a crime under Federal law,” 115 Cong. Rec. at 34,838
20 Nos. 12‐1250 & 12‐1251
(Nov. 19, 1969)); United States v. Camps, 32 F.3d 102, 108 (4th
Cir. 1994) (stating that § 924(c) does not criminalize the un‐
derlying predicate offense but rather “proscribes, as a sepa‐
rate and distinct offense, the use or carry of a firearm during
the commission of or in relation to these predicate offens‐
es”).
Because Cureton only used a firearm once, in the simul‐
taneous commission of two predicate offenses, we agree
with him that he may only stand convicted of one violation
of § 924(c). In doing so, we agree with reasoning like that in
the District of Columbia Circuit’s decision in United States v.
Wilson, 160 F.3d 732 (D.C. Cir. 1998). There, a defendant
killed a witness scheduled to testify at a trial. For that single
act, the defendant was convicted of two violations of § 924(c)
predicated on the crimes of first‐degree murder and killing a
witness with the intent to prevent him from testifying. But
the circuit court vacated one of the § 924(c) convictions, rea‐
soning that however many crimes may have been committed
by shooting the potential witness, there was only one use of
a firearm. Id. at 749‐50. The court reiterated its conclusion in
an earlier decision that the statute’s purpose was to penalize
the choice of using or carrying a gun in committing a crime.
See id. (citing Anderson, 59 F.3d at 1333).
Here too, there was only one use of a firearm along with
simultaneously committed predicate offenses. That is, there
was only one choice to use a gun in committing a crime.
With no clear indication that Congress intended more than
one § 924(c)(1) punishment to result, we conclude that the
best interpretation of the statute is one that authorizes only
one § 924(c)(1) conviction in such circumstances. See, e.g.,
United States v. Johnson, 25 F.3d 1335, 1338 (6th Cir. 1994)
Nos. 12‐1250 & 12‐1251 21
(“[A] sensible construction dictates that possession of one or
more firearms in conjunction with predicate offenses involv‐
ing simultaneous possession of different controlled sub‐
stances should constitute only one offense under § 924(c)(1),
and the sentences under § 924(c)(1) should be for one offense
only.”). We join our sister circuits who have reached the
same conclusion. See id.; Phipps, 319 F.3d at 186‐88 (conclud‐
ing § 924(c)(1) only authorized one conviction for a single
use of a single firearm during the commission of multiple
predicate offenses, turning in part to the rule of lenity); Unit‐
ed States v. Finley, 245 F.3d 199, 207 (2d Cir. 2001)2; Wilson,
160 F.3d at 749‐50.3
2 The Second Circuit’s approach suggests that it would find only one §
924(c)(1) conviction appropriate for a single possession of a firearm pred‐
icate offenses where predicate offenses may not be simultaneous, but
were “nearly so.” See Finley, 245 F.3d at 207; see also United States v. Wal‐
lace, 447 F3d 184, 189 n.2 (2d Cir. 2006). We need not decide today the
situation of predicate offenses that were not simultaneously committed.
We note that the Third Circuit’s decision in United States v. Casiano, 113
F.3d 420 (3d Cir. 1997), a case to which the government points, seems to
involve that situation. In Casiano, the court affirmed the imposition of
two § 924(c)(1) convictions for the use of a firearm during predicate of‐
fenses of kidnapping and carjacking. The court spoke of a “criminal
course of conduct from the carjacking (the first predicate offense) to the
kidnapping (the second predicate offense),” id. at 424, suggesting that
while the predicate offenses were committed during the same course of
conduct, they were not committed simultaneously like in our case.
3 Section 924(c)(1) imposes a mandatory sentence for a “second or sub‐
sequent conviction,” and one might also be inclined to argue that the fact
that Cureton’s predicate offenses were committed simultaneously means
he did not have a second or subsequent conviction. The Supreme Court
in Deal v. United States, 508 U.S. 129 (1993), considered the meaning of
“conviction” in § 924(c) and ruled the term means a finding of guilt that
22 Nos. 12‐1250 & 12‐1251
Decisions upholding two punishments for a single use of
a gun in furtherance of simultaneous predicate crimes do not
persuade us otherwise. The government points us to the
Eighth Circuit’s decision in United States v. Sandstrom, 594
F.3d 634 (8th Cir. 2010), which held that the mere fact of sep‐
arate predicate offenses supported two convictions for sim‐
ultaneous conduct. It reasoned that two counts were “distin‐
guishable from one another because the defendants ‘used’
the firearm at issue in both counts to commit separate of‐
fenses, even though the offenses occurred simultaneously.”
Id. at 659. The Fourth Circuit has also stated that “[a]s long
as the underlying crimes are not identical under the Block‐
burger analysis, then consecutive section 924(c) sentences are
permissible.” United States v. Luskin, 926 F.2d 372, 377 (4th
Cir. 1991). As we have discussed, though, we do not think
these interpretations are consistent with the statute. The con‐
struction urged by the government would punish only the
underlying predicate offenses themselves, yet the statute’s
purpose is to punish the choice to use or possess a firearm in
committing a predicate offense, in addition to the punish‐
ment otherwise imposed for the predicate crimes.
Now that we have determined one of Cureton’s § 924(c)
convictions cannot stand, the next question is the proper
remedy. Cureton maintains we should simply strike the sec‐
necessarily precedes the entry of a final judgment of conviction. Id. at
132. Our case is not about whether Cureton’s conviction is second or
subsequent, but rather about whether his conduct can sustain more than
one § 924(c) conviction. See Wilson, 160 F.3d at 750 n.22. We reach our
decision by concluding that the text of the statute means that Cureton’s
conduct can only support one § 924(c) conviction, and we conclude that
without any aid from the “second or subsequent” phrase.
Nos. 12‐1250 & 12‐1251 23
ond conviction and its mandatory twenty‐five year sentence,
and then subtract twenty‐five years from his 744‐month sen‐
tence. The government’s position is that we should remand
Cureton’s case for resentencing.
“A district judge’s sentencing decision ordinarily con‐
cerns the entire ‘sentencing package.’” United States v. Pen‐
nington, 667 F.3d 953, 958 n.3 (7th Cir. 2012) (citing United
States v. Smith, 103 F.3d 531, 533 (7th Cir. 1996)); see also
Smith, 103 F.3d at 533 (“[W]hen part of a sentence is vacated
the entire sentencing package becomes ‘unbundled’ and the
judge is entitled to resentence a defendant on all counts.”).
The district court’s comments at sentencing reflect its intent
that Cureton receive a significant sentence:
[T]o tie up a young woman and kick, beat her, and
threaten to cut her, and to bring other people in to
frighten her, and then to call her family, just a horri‐
ble, horrible, horrible experience for everyone in‐
volved is—is cold and vicious almost beyond descrip‐
tion. I would have given you a life sentence if the
statute authorized it irrespective of what the guide‐
lines provided for in this case.
We cannot be assured that had the district court known
Cureton could be convicted of only one § 924(c)(1) count, its
consideration of the sentence it thought appropriate and that
met the requirements of 18 U.S.C. § 3553(a) would have
meant a sentence of 744 months minus twenty‐five years. As
a result, we vacate Cureton’s sentence and remand for resen‐
tencing, and we decline to restrict the court’s consideration
on resentencing to simply excising the twenty‐five year sen‐
tence as Cureton seeks. Cf. Bloch, 718 F.3d at 643‐44 (remand‐
ing for defendant to be resentenced on single count of con‐
24 Nos. 12‐1250 & 12‐1251
viction after ruling that convictions of violating both §
922(g)(1) and § 922(g)(9) based on a single act of gun posses‐
sion were multiplicitous and must be merged).
C. Impact of Alleyne v. United States
In light of the Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013), Cureton also contends
for the first time on appeal that he was unconstitutionally
subjected to a seven‐year mandatory minimum sentence for
his first § 924(c)(1) conviction that was based on a brandish‐
ing finding neither charged in the indictment nor found by
the jury. See 18 U.S.C. § 924(c)(1)(A)(ii) (mandating seven‐
year minimum term if firearm brandished). Because Cureton
did not object to the seven‐year mandatory minimum before
the district court, he must satisfy the plain error standard to
receive relief. See United States v. Kirklin, 727 F.3d 711, 718‐19
(7th Cir. 2013). Under that standard, we will not reverse a
decision unless the defendant demonstrates that (1) there
was error; (2) that the error was plain; and (3) that the error
affected the defendant’s substantial rights. United States v.
Olano, 507 U.S. 725, 732‐35 (1993). If those conditions are
met, we may reverse if the error “seriously affect[s] the fair‐
ness, integrity, or public reputation of the judicial proceed‐
ings,” id., that is, if the error would result in a miscarriage of
justice, United States v. Ramirez‐Fuentes, 703 F.3d 1038, 1042
(7th Cir. 2013).
Overruling its decision in Harris v. United States, 536 U.S.
545 (2002), the Supreme Court held in Alleyne that any fact
that increases a mandatory minimum sentence, other that
the fact of a prior conviction, “is an ‘element’ that must be
submitted to the jury and found beyond a reasonable
doubt.” 133 S. Ct. at 2155. Here, the judge found at sentenc‐
Nos. 12‐1250 & 12‐1251 25
ing by a preponderance of the evidence that Cureton bran‐
dished a firearm in connection with a crime of violence. This
brandishing finding increased Cureton’s mandatory mini‐
mum sentence for an 18 U.S.C. § 924(c)(1) conviction from
five years to seven years, and the district court sentenced
Cureton to seven years’ imprisonment on that conviction.
That Cureton brandished a firearm was neither charged in
the indictment nor submitted to the jury, however. As a re‐
sult, the government agrees there was error under Alleyne, as
do we.
We ruled in Kirklin that an Alleyne error was not a mis‐
carriage of justice where the evidence of brandishing was
such that we found it highly unlikely a jury would have
convicted on a § 924(c) count but acquitted him of brandish‐
ing. Kirklin, 727 F.3d at 719. That is the case here as well. In
this case, the only evidence at trial concerning brandishing
of the firearm came from Lawrence, and the defense did not
cross examine her. Lawrence testified that Cureton “came
over to [her] and put the gun up to [her] head,” asked her
where the money was, told her it was her last chance, and
said that she would never see her daughter again. While Cu‐
reton asserts that he challenged Lawrence’s credibility in his
closing argument, the fact remains that the jury found him
guilty of violating § 924(c)(1). As the only evidence present‐
ed in support of the § 924(c)(1) charge was Lawrence’s testi‐
mony, the sole basis for the jury’s verdict of guilty came
from that testimony. The jury could not have rationally con‐
victed Cureton on the § 924(c)(1) charge yet believed he did
not brandish the gun. As a result, there was no plain error.
26 Nos. 12‐1250 & 12‐1251
III. CONCLUSION
Cureton’s conviction is AFFIRMED. We VACATE his sen‐
tence and REMAND for resentencing in accordance with this
opinion.