REVISED JANUARY 22, 2003
In the United States Court of Appeals
For the Fifth Circuit
_______________
m 02-10102
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL SHANE PHIPPS
AND
DEAN RAYBURN GILLEY,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
January 15, 2003
Before JONES, SMITH, and SILER,* Circuit quariello to buy clothes for them and checked
Judges. into a motel. Phipps again announced his de-
sire to rape Pasquariello, but Gilley, who had
JERRY E. SMITH, Circuit Judge: become nervous, again intervened.
Michael Phipps and Dean Gilley appeal sev- Defendants drove to a nearby alley. Pas-
eral aspects of their kidnaping, carjacking, and quariello apparently believed that defendants
firearms convictions and sentences. Because planned to kill her, so she fled, screaming. De-
18 U.S.C. § 924(c)(1) does not unambiguously fendants did not give chase.
authorize their multiple convictions for a single
use of a single firearm based on multiple predi- The FBI quickly apprehended defendants,
cate offenses, we vacate the sentences and re- no criminal masterminds. By the evening of
mand for resentencing on all counts after one December 15, just twenty-four hours after
of the § 924(c)(1) counts is dismissed. Pasquariello had escaped, an FBI agent swore
a criminal complaint before a federal magis-
I. trate judge. The complaint included all of the
On December 13-14, 2000, Paula Vastano- foregoing facts and charged defendants with
Pasquariello departed work and drove to her one count of kidnaping in violation of 18
home outside Dallas; defendants and their ac- U.S.C. § 1201(a)(1). The FBI arrested defen-
complice, Julian Medina, followed her in Me- dants the next day.
dina’s car. As Pasquariello pulled into her car-
port, defendants approached her, Phipps put a On January 3, 2001, a grand jury indicted
gun to her head, Gilley restrained her in the defendants on one count of kidnaping, 18
back seat of her car, and they drove away with U.S.C. § 1201(a)(1). On May 16, 2001, the
Phipps at the wheel. They stopped briefly to grand jury returned a superseding indictment.
give the gun to Medina, then headed for the Count 1 charged conspiracy to commit kidnap-
highway. Once they were on the highway, ing, 18 U.S.C. § 1201(c); count 2 charged kid-
Gilley forced Pasquariello to perform sex acts naping, 18 U.S.C. § 1201(a)(1); count 3
with him, and he raped her. During and after charged use of a firearm during and in relation
the rape, Gilley continuously threatened Pas- to the kidnaping, 18 U.S.C. § 924(c)(1);
quariello with a knife as Phipps drove through count 4 charged carjacking, 18 U.S.C.
the night. § 2119(2); count 5 charged using a firearm
during and in relation to the carjacking,
Defendants switched positions near the 18 U.S.C. § 924(c)(1).
Texas-New Mexico border. With Gilley driv-
ing, Phipps commanded Pasquariello to per- The jury convicted defendants on all five
form sex acts with him again. Gilley warned counts. The district court sentenced them to
Phipps to wait until they arrived in Albuquer- 405 months’ imprisonment on each of the con-
que, lest passing drivers see them. Upon ar- spiracy, kidnaping, and carjacking counts, with
riving in Albuquerque, defendants forced Pas- these sentences to run concurrently. It
sentenced them to 84 months on count 3 (us-
ing a firearm during and in relation to the kid-
*
Judge of the United States Court of Appeals naping) and 300 months on count 5 (using a
for the Sixth Circuit, sitting by designation.
2
firearm during and in relation to the carjack- kidnaping on January 3, 2001. The
ing), with these sentences to run consecutively superseding indictment, issued May 16,
to each other and to the 405-month sentence. charged the remaining four counts.
The total sentence is therefore 789 months, or Defendants argue that these charges are
65 years and 9 months. The court also untimely and must be dismissed under
imposed, as a special condition of supervised § 3162(a)(2).
release, that defendants shall not possess
“sexually oriented or sexually stimulating Our precedents involve two kinds of
materials.” allegedly untimely indictments. First, a
defendant is charged in a complaint, arrested,
Defendants challenge the timeliness of their and timely indicted for the offense charged in
indictments, their multiple § 924(c)(1) the complaint. Later (and after the STA
convictions, a jury instruction, the application period has run), a superseding indictment
of two sentencing guidelines, the length of charges new offenses not contained in the
their sentence for the carjacking conviction, complaint. United States v. Bailey, 111 F.3d
and the special condition of supervised release. 1229 (5th Cir. 1997); United States v. Giwa,
We address these questions in roughly 831 F.2d 538 (5th Cir. 1987). Second, a de-
chronological order from the pre-trial stage to fendant is charged in a complaint, arrested, and
trial to sentencing. timely indicted for an offense not charged in
the complaint. Later (and after the STA pe-
II. riod has run), a superseding indictment alleges
Defendants argue that all counts but the the offense charged in the complaint.
kidnaping count were untimely under the Martinez-Espinoza, 299 F.3d at 415-16;
Speedy Trial Act (“STA”), 18 U.S.C. § 3161 United States v. Perez, 217 F.3d 323 (5th Cir.
et seq., and therefore should have been 2000). This appeal presents the first situation,
dismissed. We review interpretations of the so Bailey and Giwa control.
STA de novo and related factual questions for
clear error. United States v. Martinez- In Giwa and Bailey, defendants were
Espinoza, 299 F.3d 414, 416 (5th Cir. 2002). charged and arrested for a specific offense and,
We disagree with defendants’ contentions. after the STA period had run, were charged, in
a superseding indictment, with other offenses.1
The STA requires an “indictment charging The court rejected the STA challenge in both
an individual with the commission of an cases and stated the general rule in Giwa: “If
offense” to be filed within thirty days of arrest. the Government fails to indict a defendant
18 U.S.C. § 3161(b). If “a complaint is filed within thirty days of arrest, the Act requires
charging such individual with an offense,” and dismissal of only the offense or offenses
the indictment charging the offense is untime-
ly, “such charge against that individual
contained in such complaint shall be dis- 1
Bailey, 111 F.3d at 1235 (arrested for mis-
missed.” 18 U.S.C. § 3162(a)(1). The demeanor receipt of stolen goods and entering a
complaint, issued on December 15, 2000, military base, later indicted for sexual assault and
charged kidnaping. Defendants were arrested felony receipt of stolen goods); Giwa, 831 F.2d at
on December 16 and were timely indicted for 540 (arrested for credit card fraud, later indicted
for mail fraud and social security fraud).
3
charged in the original complaint.” Giwa, plaint and first indictment may not have
831 F.2d at 541.2 Here, the original complaint supported the other four counts.3 Defendants’
charged defendants with kidnaping, for which proposed rule would encourage the gov-
the grand jury timely indicted them. The ernment to “throw the book” immediately and
superseding indictment charged separate needlessly at suspects to avoid STA violations.
offenses, which does not violate the STA un- We decline to adopt a rule that contradicts our
der the rule of Giwa and Bailey. precedents and encourages imprudent
prosecutions.4
At the same time, Giwa identified, and Bai-
ley elaborated on, a “gilding” exception to this III.
general rule. “[A] gilded charge is one that A.
merely annotates in more detail the same Defendants challenge their multiple § 924-
charge alleged in the initial accusatory (c)(1) convictions, arguing that they may be
instrument.” Bailey, 111 F.3d at 1236. As an convicted under that statute only once for the
example of a gilded charge, Bailey cited a case
involving a superseding indictment that merely
added new supporting facts to the charge in 3
The government does not actually offer this
the complaint. Id. (citing United States v. Bi- explanation for the delay, but we assume it must
lotta, 645 F. Supp. 369, 371 (E.D.N.Y. occur often during investigations. Moreover,
1986)). Defendants cannot take advantage of § 3162(a)(1) establishes a strict rule, so not even
the gilding exception, however, because the the less justifiable explanation of “negligent man-
superseding indictment did not merely supply agement” by the United States Attorney under-
mines an otherwise valid indictment. Giwa, 831
supporting facts for the kidnaping charge, but
F.2d at 543.
added four entirely new charges.
4
Defendants also argue that the Double Jeopar-
Defendants rely on an old and irrelevant dy Clause makes count 3 untimely under the STA.
Ninth Circuit case and a secondary treatise to In particular, they contend that count 2 (kidnaping)
cobble together the argument that the and count 3 (using a firearm during and in relation
complaint really charges all five counts to the kidnaping) fail the “same elements” test of
because the facts in the complaint are sufficient Blockburger v. United States, 284 U.S. 299, 304
to establish each charge. They cite no caselaw (1932). Thus, counts 2 and 3 effectively charge
for this argument, nor could they, because the the same offense, which the complaint also
theory directly contradicts Giwa and Bailey. charged. T he STA clock for count 3, on this
theory, began to tick on December 16, 2000, and
expired well before the government indicted de-
Moreover, the government may have had a
fendants on count 3 on May 16, 2001. Defendants
good reason to charge defendants solely with
conclude, therefore, that the indictment on count 3
kidnaping in the complaint and first indictment: is untimely under the STA.
The evidence collected by the time of the com-
Defendants concede that United States v. Mar-
tinez, 28 F.3d 444, 446 (5th Cir. 1994), forecloses
2
See also Bailey, 111 F.3d at 1236 (“The clear this argument, and they raise the question merely
mandate of § 3162(a)(1) requires dismissal of only for further review. Martinez held that the Hobbs
those charges contained in the original com- Act, 18 U.S.C. § 1951, and § 924(c)(1) satisfy the
plaint[.]”) (quoting Giwa, 831 F.2d at 543). Blockburger test.
4
single use of a single firearm. We review carriage, or possession of a firearm or firearms
questions of statutory interpretation de novo. necessary to support such convictions. We
United States v. Hanafy, 302 F.3d 485, 487 held in Privette that predicate offenses
(5th Cir. 2002). As applied to the facts of this “separated by the measure of the double
case, § 924(c)(1) is ambiguous, so we apply jeopardy clause can each support § 924(c)
the rule of lenity and decide that the statute convictions,” as long as “each firearms offense
does not authorize multiple convictions for a [is] sufficiently linked to a separate [predicate]
single use of a single firearm based on multiple offense to prevent two convictions under
predicate offenses. § 924(c) on the same [predicate] offense.” Id.
at 1262-63. We also noted that the
1. government typically can establish a direct
Section 924(c)(1) states in relevant part linkage in the indictment and jury charge. Id.
that “any person who, during and in relation to at 1263.
any crime of violence . . . uses or carries a
firearm, or who, in furtherance of any such Privette, then, is a constitutional decision
crime, possesses a firearm, shall, in addition to based on the Double Jeopardy Clause. It does
the punishment provided for such crime of vio- not address the precise statutory question
lence,” be sentenced to varying terms of whether § 924(c)(1) authorizes multiple
imprisonment based on the kind of firearm or convictions for a single use of a single firearm
the nature of its use. 18 U.S.C. § 924(c)(1). based on multiple predicate offenses.5
Kidnaping and carjacking are crimes of
violence. 18 U.S.C. § 924(c)(3). Thus,
defendants were charged with, and convicted
of, two § 924(c)(1) counts (counts 3 and 5), 5
Likewise, the parties cite several cases from
one each for the predicate offenses of other circuits that are not precisely on point,
kidnaping and carjacking. They argue that because they do not address the nature of the use,
§ 924(c)(1) does not authorize, or, if it does, carriage, or possession of a firearm or firearms
the Double Jeopardy Clause prohibits, these necessary to support multiple § 924(c)(1) con-
multiple § 924(c)(1) convictions for a single victions. Instead, they address the nature of the
use of a single firearm based on multiple predicate offenses necessary to support such con-
predicate offenses. victions or whether multiple convictions from the
same indictment can be a “second or subsequent
The government answers that United States conviction” for sentencing purposes. See, e.g.,
v. Privette, 947 F.2d 1259 (5th Cir. 1991), United States v. Casiano, 113 F.3d 420, 424-26
(3d Cir. 1997); United States v. Johnson, 25 F.3d
controls this case and authorizes the dual con-
1335, 1336-38 (6th Cir. 1994) (en banc) (Siler, J.);
victions, but the government misapprehends
United States v. Luskin, 926 F.2d 372, 374-78 (4th
the holding of Privette. The precise question Cir. 1991); United States v. Nabors, 901 F.2d
presented was whether a verdict could be up- 1351, 1357-59 (6th Cir. 1990); United States v.
held if it did not link the multiple § 924(c)(1) Fontanilla, 849 F.2d 1257, 1258-59 (9th Cir.
convictions to distinct predicate offenses. Id. 1988). Like our decision in Privette, therefore,
at 1262. Privette therefore addressed the these cases do not bear on the main question at
predicate offenses necessary to support issue here, namely, whether § 924(c)(1) authorizes
multiple § 924(c)(1) convictions, not the use, multiple convictions for a single use of a single
firearm based on multiple predicate offenses.
5
In fact, Privette does not plainly indicate purely a question of statutory interpretation,
the number of firearms involved. The factual with two parts. First, we must ascertain the
part of the opinion contains a singular unit of prosecution for § 924(c)(1). See Unit-
reference to “weapons,” which could mean ed States v. Universal C.I.T. Credit Corp., 344
that multiple firearms were involved, though U.S. 218 (1952). We conclude that the unit of
not all weapons are necessarily firearms. Id. at prosecution is the use, carriage, or possession
1261. The analysis part of the opinion, of a firearm during and in relation to a
however, contains multiple and contradictory predicate offense. Second, we must determine
references to “a firearm” and “firearms.” Id. at whether, given this unit of prosecution, § 924-
1262-63. It is most likely that Privette (c)(1) authorizes multiple convictions for a
involved multiple firearms, but at best the single use of a single firearm based on multiple
opinion is ambiguous on this point. Either predicate offenses. Though this question is
way, Privette does not explicitly or implicitly close, and reasonable minds could disagree,
control this case. this very ambiguity compels us to apply the
rule of lenity and answer the question in the
Privette is not completely beside the point, negative. See Bell v. United States, 349 U.S.
however, because it forecloses defendants’ 81 (1955).
constitutional argument. They contend that
the Double Jeopardy Clause prohibits multiple a.
convictions for a single use of a single firearm The parties dispute what is the unit of pro-
based on multiple predicate offenses, even if secution for § 924(c)(1). The government ar-
§ 924(c)(1) authorizes the convictions as a gues that it is the predicate offense, whereas
statutory matter. This argument is nothing defendants argue that it is the use, carriage, or
more than a disagreement with Privette. possession of a firearm. Both are correct, but
only partly so. The odd nature of the statute
If the predicate offenses are “separated by makes the unit of prosecution neither the pre-
the measure of the double jeopardy clause,” id. dicate offense nor the use, carriage, or
at 1261, there can be no constitutional in- possession of a firearm; rather, the unit of
firmities with multiple convictions authorized prosecution is the two combined.
by § 924(c)(1). The predicate offenses of kid-
naping and carjacking obviously have different This court has not expressly decided the
elements, hence they pass the same-elements unit of prosecution for § 924(c)(1), though
test of Blockburger, 284 U.S. at 304. United States v. Correa-Ventura, 6 F.3d 1070
Defendants therefore cannot challenge their (5th Cir. 1993), suggested the answer. There
multiple § 924(c)(1) convictions on the defendant was convicted of one count of
constitutional grounds. § 924(c)(1) based on two predicate offenses
and multiple firearms. Id. at 1072-73. He
2. challenged the jury instruction for his § 924-
Having dispensed with these preliminary (c)(1) conviction because it allowed the jury to
matters, we now reach the main issue, namely, find him guilty without unanimously agreeing
whether § 924(c)(1) authorizes multiple on which particular firearm he had used. Id. at
convictions for a single use of a single firearm 1075-76. We rejected this challenge,
based on multiple predicate offenses. This is explaining in part that “[t]he mere carrying or
6
use of a firearm is not the criminal actus reus offense that the statute does not prohibit is il-
proscribedSSrather it is the employment of the logical.” United States v. Camps, 32 F.3d
weapon in the context of another predefined 102, 109 (4th Cir. 1994).
crime. . . . Accordingly, the plain language of
the statute does not imply a requirement of Though the emphasis is on the use,
unanimity as to the particular firearm em- carriage, or possession of a firearm, and not on
ployed.” Id. at 1083. the predicate offense, simple use, carriage, or
possession of a firearm also is not the unit of
Although Correa-Ventura did not directly prosecution. Many citizens exercise their Sec-
address the question, this passage nonetheless ond Amendment rights, United States v. Em-
suggests that the unit of prosecution is the use, erson, 270 F.3d 203 (5th Cir. 2001), cert.
carriage, or possession of a firearm during and denied, 122 S. Ct. 2362 (2002), by routinely
in relation to a predicate offense, with slightly using, carrying, or possessing a firearm, and
more emphasis on the use, carriage, or § 924(c)(1) obviously does not prohibit that
possession of a firearm. The text of § 924- law-abiding conduct. Instead, it regulates the
(c)(1) bears out this suggestion: The conduct use, carriage, or possession of a firearm only
of using, carrying, or possessing a firearm during and in relation to a predicate offense.
constitutes the active verbs (“any person who Thus, the unit of prosecution for § 924(c)(1) is
. . . uses or carries a firearm, or who, in the use, carriage, or possession of a firearm
furtherance of any such crime, possesses a during and in relation to a predicate offense.
firearm”), whereas the predicate offenses In so deciding, we agree with the similar rea-
appear in a separate clause (“during and in soning of the Fourth Circuit in Camps and
relation to any crime of violence or drug disagree with the contrary conclusions of the
trafficking crime”). Moreover, the many Second and Sixth Circuits.6
subsections of § 924(c)(1) adjust the sentence
for a conviction based on the kind of firearm b.
or the nature of its use during the predicate This unit of prosecution aptly frames our
offense, not on the kind or nature of the
predicate offense.
6
See United States v. Taylor, 13 F.3d 986,
The decision in Simpson v. United States, 993-94 (6th Cir. 1994) (“The purpose of § 924-
435 U.S. 6, 10 (1978), also indicates that the (c)(1) . . . is to target those defendants who choose
unit of prosecution for § 924(c)(1) is the use, to involve weapons in an underlying narcotics
carriage, or possession of a firearm during and crime or crime of violence. Consequently, the
predicate offense, not the firearm, is the object of
in relation to a predicate offense, with slightly
§ 924(c)(1).”); United States v. Lindsay, 985 F.2d
more emphasis on the use, carriage, or
666, 674-75 (2d Cir. 1993) (“When viewed as a
possession of a firearm. The Court explained whole . . . this firearms statute is ambiguous as to
that “§ 924(c) creates an offense distinct from the appropriate unit of prosecution.”). We, like the
the underlying federal felony.” In other words, Fourth Circuit, disagree with Taylor, because it
§ 924(c)(1) does not criminalize the predicate conflicts with the text of § 924(c)(1) and apparent
offenses, for example, kidnaping and carjack- congressional intent, and with Lindsay because it
ing, which are elsewhere proscribed. And, creates ambiguity with an interpretation not sup-
“[t]o base a statute’s unit of prosecution on an ported by text or logic. See Camps, 32 F.3d at
109.
7
task. Were the unit of prosecution the firearm to Pasquariello’s head.
predicate offense, we easily could affirm
defendants’ multiple § 924(c)(1) convictions True enough, this single use allowed
based on the multiple predicate offenses. defendants to commit two crimes. By
Likewise, were the unit of prosecution the brandishing the firearm, they forced
mere use, carriage, or possession of a firearm, Pasquariello to surrender her car, and they
we just as easily could vacate one of the abducted her. They could have committed
convictions. But given the true unit of either offense without committing the other:
prosecution, we must determine whether, as a They could have taken Pasquariello’s car
matter of statutory interpretation, § 924(c)(1) without abducting her, or vice versa. In this
authorizes multiple convictions for a single use sense, the single use of the firearm served two
of a single firearm during and in relation to purposes. Yet, just as motive often is the
multiple predicate offenses.7 essential fact at trial but generally not a
statutory element, § 924(c)(1) criminalizes the
“Congress could no doubt” authorize such use of a firearm during and in relation to the
convictions; “[t]he question is: did it do so?” predicate offense, not in regard to a
Bell, 349 U.S. at 82-83. We cannot say that defendant’s purposes in using the firearm.
§ 924(c)(1) unambiguously authorizes multiple
convictions for a single use of a single firearm The legislative history of § 924(c)(1) offers
during and in relation to multiple predicate of- some, albeit limited, support for this
fenses, so we apply the rule of lenity. interpretation. Representative Poff, the
sponsor of the original version of § 924(c)(1),
By its text, § 924(c)(1) criminalizes the use declared that its purpose was “to persuade the
of a firearm during and in relation to a man who is tempted to commit a felony to
predicate offense. The statute imposes leave his gun at home.” 114 CONG. REC.
penalties on “any person who, during and in 22,231 (1968). Senator Mansfield, who
relation to any crime of violence . . . uses . . . sponsored one of the original amendments to
a firearm.” 18 U.S.C. § 924(c)(1)(A). Given § 924(c)(1), stated that the law “provides for
the unit of prosecution, this language allows the first time a separate and additional penalty
for only as many counts as there are uses of for the mere act of choosing to use or carry a
the firearm.8 Defendants “used” the firearm gun in committing a crime under federal law.”
only once, namely, when Phipps put the 115 CONG. REC. 34,838 (1969). Though these
oft-cited statements are hardly definitive, they
indicate that some of the original authors of
7
§ 924(c)(1) aimed the law at the choice to use
From this point forward, we speak only of use, a firearm during and in relation to a predicate
not of carriage or possession, because defendants
offense. Defendants chose to use a single
undoubtedly used the firearm during their crimes.
firearm a single time, suggesting that they
See Bailey v. United States, 516 U.S. 137, 144
(observing that the “use” offense of § 924(c) should face only a single count of violating
requires “active employment” of a firearm). § 924(c)(1).
8
Or, if defendants had not used their firearm, We readily acknowledge, however, the rea-
the language allows as many counts as the number sonableness of the government’s position. The
of firearms carried or possessed.
8
government’s initial premise that the unit of 83. The Court therefore held that “the
prosecution for § 924(c)(1) is the predicate of- ambiguity should be resolved in favor of
fense weakens its argument. Yet, one could lenity.” Id.9 Because § 924(c)(1) is
accept, as the unit of prosecution, the use of a ambiguous on the facts of this case, we must
firearm during and in relation to a predicate follow Bell and conclude that the statute does
offense, and still reasonably argue that § 924- not unambiguously authorize multiple
(c)(1) permits multiple convictions for a single convictions for a single use of a single firearm
use of a single firearm during and in relation to based on multiple predicate offenses.
multiple predicate offenses.
Only two other circuits seem to have
The crux of this argument would be the addressed the precise question whether § 924-
unusual neither-fish-nor-fowl quality of § 924- (c)(1) authorizes multiple convictions for a sin-
(c)(1), which criminalizes neither unadorned gle use of a single firearm based on multiple
use of a firearm nor the predicate offense, but predicate offenses, and both have applied the
only the two combined, as the unit of rule of lenity.10 In United States v. Wilson,
prosecution indicates. If § 924(c)(1) were a 160 F.3d 732 (D.C. Cir. 1998), the defendant
simple firearm statute unrelated to other was convicted of killing a witness in violation
offenses, defendants obviously would face of 18 U.S.C. § 1512, first degree murder while
only one count. As written, however, § 924- armed in violation of D.C. CODE §§ 22-2401,
(c)(1) criminalizes the use of a firearm during -3202, and two counts of § 924(c)(1). Noting
and in relation to a predicate offense. With that it had already found § 924(c)(1)
two predicate offenses related to the single ambiguous in the converse factual situation of
use, one might argue, defendants therefore
should face two counts.
9
See also Smith v. United States, 508 U.S.
Though the government’s position does not 223, 246 (1993) (Scalia, J., dissenting) (“Even if
persuade us, it is not unreasonable, but the the reader does not consider the issue to be as clear
statute’s ambiguity compels us to apply the as [we] do, he must at least acknowledge, [we]
rule of lenity, under which a court should re- think, that it is eminently debatableSSand that is
solve doubts about an ambiguous criminal stat- enough, under the rule of lenity, to require finding
ute in favor of the defendant. United States v. for [defendants] here.”).
Reedy, 304 F.3d 358, 367-68 (5th Cir. 2002).
10
The Supreme Court first and most famously Two Tenth Circuit cases appear, on their
applied the rule in Bell, 349 U.S. at 82, in facts, to uphold multiple § 924(c)(1) convictions
for a single use of a single firearm based on mul-
which the petitioner was convicted of two vio-
tiple predicate offenses. See United States v. Ro-
lations of the Mann Act’s prohibition against
mero, 122 F.3d 1334 (10th Cir. 1997); United
knowingly transporting “any woman or girl” in States v. Floyd, 81 F.3d 1517 (10th Cir. 1996). In
interstate commerce for immoral purposes, neither case, though, did the court directly address
based on his transporting two women at the the question. Instead, Romero addressed whether
same time in the same vehicle. The Court ac- a second § 924(c)(1) conviction in the same crim-
knowledged that “argumentative skill . . . inal proceeding is a “second or subsequent” con-
could persuasively and not unreasonably reach viction under § 924(c)(1)(C), Romero, 122 F.3d at
either of the conflicting constructions.” Id. at 1343-44, and Floyd, 81 F.3d at 1526-27, ad-
dressed the constitutional double jeopardy question.
9
multiple § 924(c)(1) convictions based on a Rather, they merely illustrate the difficulties in
single predicate offense, the court applied the interpreting § 924(c)(1) and the not infrequent
rule of lenity. Wilson, 160 F.3d at 749 (citing need to resolve ambiguities in favor of criminal
United States v. Anderson, 59 F.3d 1323, defendants via the rule of lenity.
1333 (D.C. Cir. 1995) (en banc)). The court
deemed this reasoning “no less applicable Finally, we stress that our holding is limited
where a single use of a gun results in more by the unusual fact that defendants gave the
than one offense,” and therefore applied the firearm to Medina immediately after using it.
rule of lenity to these facts as well. Id. Had, for example, they kept the firearm and
used it to restrain or intimidate Pasquariello
In United States v. Finley, 245 F.3d 199 later, we might have affirmed their multiple
(2d Cir. 2001), cert. denied, 534 U.S. 1144 convictions.12 We also might have done so if
(2002), defendant was convicted of one count defendants had used, carried, or possessed
of distribution and one count of possession multiple firearms when they took Pasquariel-
with intent to distribute, both in violation of 21 lo’s car and kidnaped her.
U.S.C. § 841, and two counts of § 924(c)(1).
An undercover agent purchased some of the These examples, however, are not the facts
defendant’s cocaine stash in a confirmatory before us. In what surely must be a rare event,
buy and, several minutes later, other agents defendants used a single firearm a single time
raided the defendant’s house, where they dis- for a dual criminal purpose, then immediately
covered the remainder of the stash and a fire- discarded it. In light of this extraordinary fact,
arm. Id. at 201-02. The court agreed with “a § 924(c)(1) does not unambiguously authorize
widely-shared view that the statute’s text is multiple convictions for a single use of a single
ambiguous” and applied the rule of lenity. Id. firearm based on multiple predicate offenses.
at 207. In particular, the court held that
§ 924(c)(1) “does not clearly manifest an in- “The proper remedy for multiplication of
tention to punish a defendant twice for con- punishment is to vacate the sentences on all
tinuous possession of a firearm in furtherance the counts and remand for resentencing with
of simultaneous predicate offenses consisting instructions that the count elected by the gov-
of virtually the same conduct.” Id.
By discussing Wilson and Finley, we do not (...continued)
mean to suggest that we agree with their in- conduct. Aside from the fact that the predicate
terpretation of § 924(c)(1) based on the offenses in Finley were not simultaneous, we sus-
particular facts presented in those cases.11 pect that this test creates more ambiguity than it
resolves by importing a temporal concept into
§ 924(c)(1). See Finley, 245 F.3d at 208-11
(Winter, J., dissenting).
11
In particular, we are skeptical of, and do not
12
adopt, the Second Circuit’s holding in Finley, 245 See Wilson, 160 F.3d at 749 (“[T]here may
F.3d at 207, that § 924(c)(1) does not authorize be circumstances in which such [distinct] offenses
multiple convictions based on “continuous” pos- could support more than one § 924(c) chargeSSas
session of a firearm during “simultaneous” predi- where, for example, the evidence shows distinct us-
cate offenses consisting of “virtually” the same es of the firearm, first to intimidate and then to
(continued...) kill.”).
10
ernment be dismissed. The defendant[s are] States v. Olano, 507 U.S. 725, 732 (1993) (ci-
then to be resentenced.” Privette, 947 F.2d at tation omitted). We conclude that the district
1263 (citation omitted). Thus, we vacate the court’s inadvertent mistake is not reversible
instant sentences and remand for resentencing error, and certainly not reversible plain error.
on all counts after the government successfully
moves to dismiss either count 3 or count 5. The question is not whether the court’s un-
witting mention of the preponderance of the
B. evidence standard while discussing count 1 is
Gilley argues that the district court erroneous15SSeveryone concedes it isSSbut
committed reversible error by inadvertently whether this single misstatement makes the in-
instructing the jury, on one occasion, that it struction defective as a whole. See Cage v.
could find him guilty of the conspiracy count Louisiana, 498 U.S. 39, 41 (1990).
by a prepo nderance of the evidence.13 Gilley Moreover, “the proper inquiry is not whether
did not object to the instruction at trial, so we the instruction ‘could have’ been applied in an
review the inadvertent instruction for plain unconstitutional manner, but whether there is
error.14 See FED. R. CRIM. P. 52(b). a reasonable likelihood that the jury did so
apply it.” Victor v. Nebraska, 511 U.S. 1, 6
Plain error review is very limited. There (1994) (citing Estelle v. McGuire, 502 U.S.
must be “error” that is “plain” and that affects 62, 72 & n.4 (1991)).16
“substantial rights,” and even then we have
discretion not to correct the error unless it “se- 15
riously affects the fairness, integrity or public The district court stated:
reputation of judicial proceedings.” United
Now, once the jury has reached a unan-
imous decision as to Count 1 of the indict-
ment as it affects Defendant Gilley, then the
13
Phipps adopts Gilley’s argument, but the er- foreperson will write in the decision, the
roneous instruction refers only to Gilley. Phipps unanimous decision, either guilty or not
therefore cannot challenge his convictions on this guilty.
ground.
If the jury concludes from a prepon-
14
Gilley contends that an erroneous instruction derance of the evidence that the defendant
on the burden of proof is not susceptible to plain has committed the offense charged by Count
error review. In Sullivan v. Louisiana, 508 U.S. 1 of the indictment, that is, Defendant Gil-
275 (1993), the Court held that an erroneous in- ley, then the verdict is guilty and the fore-
struction on the meaning of reasonable doubt is a person will write that in. If the jury con-
structural error not susceptible to harmless error cludes unanimously that the government has
review. Harmless error, however, is a rule of con- not proved beyond a reasonable doubt that
stitutional law, whereas plain error is a rule of ap- Defendant Gilley committed the offense
pellate procedure. An error not susceptible to charged by Count 1 of the indictment, then
harmless error review is nevertheless susceptible to the foreperson will write in not guilty.
plain error review if the defendant did not object at
trial. See, e.g., United States v. Shunk, 113 F.3d (Emphasis added.)
31, 36 (5th Cir. 1997). In any event, Sullivan does
not control this case, because here the general jury 16
In Cage, the Court suggested the speculative
instruction on reasonable doubt was proper. (continued...)
11
on the meaning of reasonable doubt and its
Gilley argues that the misstatement infected applicability.18
the entire jury instruction and irretrievably pre-
judiced his conviction on all counts by allow- Finally, we have affirmed several
ing the jury to find him guilty by less than convictions with worse errors in the general
beyond a reasonable doubt. See In re jury instruction on reasonable doubt; we
Winship, 397 U.S. 358, 364 (1970). There is, disapproved of some particular wording but
however, no reasonable likelihood, under a upheld the instruction as a whole.19 The
Cage-Victor analysis, that the jury in fact did isolated and inadvertent error here is certainly
apply the misstatement and convict Gilley of no worse than are the errors we excused in
count 1, much less all counts, by a those cases. Though we encourage the courts
preponderance of the evidence. Cage and to be vigilant in their jury instructions, we
Victor involved a dubious definition of rarely will reverse a conviction based on a
“reasonable doubt” in the general jury in- district court’s insignificant slip of the tongue.
struction on the meaning of reasonable doubt.
This situation is much more troublesome than IV.
is what happened in this case, a single slip of A.
the tongue in one particular instruction. Phipps contends that the district court
should not have sentenced him under the crim-
Moreover, Gilley concedes that the general inal sexual abuse guideline, U.S.S.G. § 2A3.1,
jury instruction on reasonable doubt, plus all because he did not commit sexual assault on
other jury instructions, correctly stated the Pasquariello. Reviewing the district court’s
law. In the nearly identical case of United legal interpretation of the sentencing guidelines
States v. Musgrave, 483 F.2d 327, 335 (5th de novo and its factual findings for clear error,
Cir. 1973), we affirmed a conviction despite a United States v. Huerta, 182 F.3d 361, 364
similar error, because the “[i]solated (5th Cir. 1999), we affirm.
statements which appear prejudicial when
taken out of context [were] innocuous when The district court used the criminal sexual
viewed in the light of the entire trial.”17 abuse guideline, U.S.S.G. § 2A3.1, instead of
During the jury charge in the instant case, the the kidnaping guideline, U.S.S.G. § 2A4.1, to
court correctly instructed, on fifteen occasions, sentence Phipps, because § 2A3.1 has a higher
total offense level. See U.S.S.G. § 3D1.3(a).
(...continued)
“could have” inquiry. McGuire, however, ex-
18
pressly overruled that suggestion and oriented the See Musgrave, 483 F.3d at 335 (observing
inquiry to what the jury in fact did. that “[i]n his lengthy charge to the jury in the pres-
ent case, the trial judge correctly depicted the rea-
17
Gilley counters with United States v. Murray, sonable doubt standard at least nine times”).
784 F.2d 188 (6th Cir. 1986). Murray, however,
19
is distinguishable, because the misstatements oc- See, e.g., Dupuy v. Cain, 201 F.3d 582, 586
curred in the general jury instruction on reasonable (5th Cir. 2000); Schneider v. Day, 73 F.3d 610,
doubt, and the Sixth Circuit deemed the erroneous 611 (5th Cir. 1996); Weston v. Ieyoub, 69 F.3d 73,
instruction reversible when combined with another 74 (5th Cir. 1995); Gaston v. Whitley, 67 F.3d
error. 121, 121-22 (5th Cir. 1995).
12
The court reasoned that § 2A3.1 applies to Both defendants misidentified Medina dur-
Phipps even though he did not assault Pas- ing the FBI’s investigation. Gilley identified
quariello, because he was responsible for Gil- him as an unnamed and unknown black man to
ley’s assault under the relevant conduct whom he paid five dollars to drive him and
guideline, U.S.S.G. § 1B1.3(a)(1). Phipps Phipps to Pasquariello’s home. Phipps
argues that the court clearly erred in that he identified Medina as a local man named Javier,
did not assault Pasquariello and could not have whose identity he otherwise did not know.
foreseen Gilley’s assault. The investigating agent testified that these lies
delayed her inquiry for several months.
The court did not clearly err by applying
§ 2A3.1. Medina testified that defendants de- Because of the conflicting false statements
clared their intent to steal a car from a woman and defendants’ untrustworthiness, the agent
whom they could also kidnap for the purpose was forced to subpoena and search defen-
of raping her. Phipps forced Pasquariello into dants’ telephone records for the unknown third
the car at gunpoint and restrained her by driv- defendant. She eventually interviewed
ing the car while Gilley forced her to perform Medina, who confessed to his involvement.
sex acts on him and then raped her. Phipps This discovery was critical to the investigation,
attempted sexually to assault Pasquariello, and because Medina, who gave the firearm to
he stopped only because of Gilley’s fear of defendants, provided the only evidence, other
detection by passing drivers. Given this than Pasquariello’s testimony, that defendants
evidence, the court easily concluded that had used a firearm. Based on these facts, the
Phipps reasonably could foresee Gilley’s district court found that defendants’
sexual assault on Pasquariello and thus could misidentification of Medina “significantly
be liable for the assault under § 1B1.3(a)(1). obstructed” the FBI’s investigation, so the
court enhanced the sentences by two levels.
B.
Defendants assert the district court clearly Defendants argue that the district court
erred by enhancing their sentence under the clearly erred, because the investigating agent
obstruction of justice guideline, U.S.S.G. did not fully believe their lies and would have
§ 3C1.1. Reviewing the court’s factual subpoenaed their telephone records anyway.
findings for clear error, United States v. Smith, We rejected this same argument in Smith, 203
203 F.3d 884, 891 (5th Cir. 2000), we affirm. F.3d at 891, in which we affirmed an
enhancement because a defendant misidentified
Section 3C1.1 permits a two-level her female co-defendants as black males to
enhancement for obstruction of justice during throw the investigators off the trail. The de-
an investigation. The enhancement is not fendant contended that the investigation was
appropriate merely because a defendant denies not “significantly obstructed or impeded” by
his guilt. U.S.S.G. § 3C1.1, cmt. n.2, but only her lie. Id. We rejected this reasoning solely
if the defendant “provid[es] a materially false because the affirmative misidentification sent
statement to a law enforcement officer that investigators on the wrong trail, even though
significantly obstructed or impeded the official they admitted they would have found the co-
investigation or prosecution of the instant defendants eventually in any event. Id. Smith
offense.” Id. at cmt. n. 4(g) (emphasis added). therefore forecloses defendants’ argument and
13
supports the district court’s finding that the cause further proceedings are now
evidence justified the enhancement. unavoidable, we remand for resentencing on
the carjacking conviction, as well.
C.
The district court erred by sentencing de- Moreover, at the sentencing hearing the
fendants to 405 months on the carjacking district court announced its desire to sentence
count, because the maximum sentence is 300 defendants to the maximum term permitted by
months. 18 U.S.C. § 2119(2). The question law. When the court made the carjacking sen-
is how we should treat this error. Defendants tence run concurrently with the conspiracy and
argue that we must vacate and remand, where- kidnaping sentences, it assumed two valid
as the government contends that we may de- § 924(c)(1) convictions. With only one valid
cline to correct the error, because the carjack- § 924(c)(1) conviction, the court may wish to
ing sentence runs concurrently with the proper reconsider whether the carjacking sentence
405-month sentences for kidnaping and should run concurrently or consecutively with
conspiracy to kidnap. Because defendants the conspiracy and kidnaping sentences. We
must be resentenced anyway, we vacate the therefore remand with instruction that the dis-
carjacking sentence as well. trict court may reconsider this question under
our limited remand rule. See United States v.
Ordinarily, we would let this kind of Marmolejo, 139 F.3d 528 (5th Cir. 1998).
erroneous sentence stand without correction.
Defendants give no good reason to create D.
make-work for ourselves, the district court, or Defendants aver that their special condition
counsel. We correct plain error only where we of supervised release is unconstitutionally
determine that the error “seriously affects the vague. They did not object at or after the sen-
fairness, integrity, or public reputation of judi- tencing hearing, so we review for plain error.
cial proceedings.” United States v. Meshack, United States v. Wright, 86 F.3d 64, 64 (5th
225 F.3d 556, 577 (5th Cir. 2000), as Cir. 1996). We affirm.
modified, 244 F.3d 367 (5th Cir.) (citation
omitted), cert. denied, 534 U.S. 861 (2001). As a special condition of supervised release,
Though the error here could not be more plain, the district court prohibited defendants from
defendants are not prejudiced, because the car- possessing “sexually oriented or sexually stim-
jacking sentence runs concurrently with the ulating materials” and from “patroniz[ing] any
valid longer sentences for conspiracy and kid- place where such material or entertainment is
naping. Meshack, 244 F.3d at 368. available.” Defendants do not argue that this
Moreover, defendants do not assert “that our condition violates their First Amendment
decision not to correct the sentence will have rights, but rather their “separate due process
collateral consequences.” Id. right to conditions of supervised release that
are sufficiently clear to inform [them] of what
If we had affirmed defendants’ convictions conduct will result in [their] being returned to
and sentences in all other respects, we would prison.” United States v. Guagliardo, 278
not disturb this sentence. Yet, we vacate their F.3d 868, 872 (9th Cir.), cert. denied, 123 S.
sentences and remand for resentencing on all Ct. 515 (2002).
counts as a result of the § 924(c)(1) error. Be-
14
Defendants rely on Guagliardo and United patronizing sexually oriented establishments
States v. Loy, 237 F.3d 251 (3d Cir. 2001), in refers, with sufficient precision, to places such
both of which the courts vacated a condition as strip clubs and adult theaters or bookstores.
of release prohibiting the defendant from pos-
sessing “pornography.” The courts reasoned
that the category of “pornography” is too We therefore read this second condition to
broad to give a probationer adequate notice of narrow the first condition to the kind of
what he may and may not possess while on sexually explicit materials available at such
probation. Guagliardo, 278 F.3d at 872; Loy, places. Though a more definite condition
237 F.3d at 264. Defendants aver that this might be desirable, the district court has “wide
reasoning also applies to the category of “sex- discretion in imposing terms and conditions of
ually oriented or sexually stimulating supervised release,” Paul, 274 F.3d at 164,
materials.” and a commonsense reading of the special
condition satisfies the dictates of due process.
Although we have not yet encountered this
kind of condition, our general approach to oth- Furthermore, this question comes to us on
er vague conditions leads us to reject plain error review. Assuming that the court on
defendants’ argument. In United States v. remand imposes the same sentence minus the
Paul, 274 F.3d 155, 166-67 (5th Cir. 2001), twenty-five-year consecutive sentence for the
cert. denied, 122 S. Ct. 1571 (2002), we invalid § 924(c)(1) conviction, defendants will
affirmed a condition prohibiting defendant have a 489-month sentence. Thus, they will
from visiting locations “frequented by minors.” not be released until they are at least nearly
We acknowledged some vagueness with the sixty years old, and even then only if they are
condition but observed that “[t]his lack of model prisoners. (Of course, the district court
specificity is not necessarily fatal to the validity on remand might impose a longer sentence,
of the restriction.” Id. at 166. We also stated which would delay the release date further.)
that “conditions of probation can be Under these circumstances, it is hard to say
written SS and must be read SS in a that the special condition affects their sub-
commonsense way” because “it would be stantial rights or warrants the exercise of our
impossible to list” every instance of prohibited plain-error discretion. Once defendants are re-
conduct, hence “[s]entencing courts must leased from confinement, they can request a
inevitably use categorical terms to frame the more definite and precise condition in light of
contours of supervised release conditions.” Id. forty more years’ development of the sexually
oriented business industry. 18 U.S.C.
20
The category of “sexually oriented or sexu- § 3583(e)(2).
ally stimulating materials” admittedly is
somewhat vague, but Paul requires it be read
in a commonsense way. Such a construction 20
Because we review the special condition for
compels us to disagree with defendants’ plain error, we reserve the question whether we
suggestion that the condition could apply to would uphold a similar special condition if the ob-
newspapers and magazines that contain jection is preserved in the district court and re-
lingerie advertisements or even to the “Song of viewed de novo. United States v. Reyes-Maya,
Solomon.” Moreover, the prohibition on 305 F.3d 362, 366 n.2 (5th Cir. 2002) (noting that
(continued...)
15
For the reasons stated, we AFFIRM the
convictions, VACATE the sentences, and
REMAND for resentencing on all counts re-
maining after one of the § 924(c)(1) counts is
dismissed.
(...continued)
the court may reach different conclusions on the
same question based on the standard of review).
16