[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 19, 2008
No. 07-12182 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00452-CR-2-RDP-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEUNDRE LERICO JOHNSON,
a.k.a. Blood,
a.k.a. Bigboiblood,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 19, 2008)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Keundre Lerico Johnson appeals his total sentence of 852 months’
imprisonment for conspiracy to commit carjacking, in violation of 18 U.S.C.
§§ 371 & 2119, three substantive carjacking offenses, one resulting in bodily
injury, all in violation of 18 U.S.C. § 2119, and three firearms charges related to
the carjackings, in violation of 18 U.S.C. § 924(c). Johnson raises three issues on
appeal. He argues that (1) the sentence for each of his firearms convictions should
have been determined by § 924(c)(1)(A)(ii), which governs a defendant’s first
firearms offense; (2) his cumulative sentences for the underlying carjacking
offenses and the firearms offenses violated the Double Jeopardy Clause of the Fifth
Amendment because the offenses arose out of the same conduct; and (3) Count
Four of the indictment failed to allege that he caused serious bodily harm, and,
thus, it was improper to sentence him under § 2119(2). We review each issue in
turn.
Johnson first argues that § 924(c)(1)(C) does not apply to his second and
third firearms offenses, as the existence of the first firearms count does not make
the later two “subsequent convictions.” Rather, he claims that each of his firearms
convictions should have been determined by § 924(c)(1)(A)(ii), which governs a
defendant’s first firearms offense.
The interpretation of a criminal statute is a question of law that we review de
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novo. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). Section
924(c)(1) states, in pertinent part:
(A) any person who, during and in relation to any crime of
violence . . . uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall . . .
...
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years . . . .
...
(C) In the case of a second or subsequent conviction under this
subsection, the person shall–
(i) be sentenced to a term of imprisonment of not less
than 25 years . . . .
18 U.S.C. § 924(c)(1)(A)(ii), (C)(i). The Supreme Court, in Deal v. United States,
508 U.S. 129, 131-37, 113 S. Ct. 1993, 1995-99, 124 L. Ed. 2d 44 (1993), rejected
a defendant’s argument that the “second or subsequent conviction” language of
§ 924(c)(1) was ambiguous and should be construed in his favor under the rule of
lenity, instead finding that the language of the statute, when read in context, made
it clear that it referred not only to prior judgments of conviction, but also to
subsequent offenses alleged within the same indictment.1
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In response to the defendant’s argument that such an interpretation would subject him to
a “glaringly unjust” sentence, given his lack of prior convictions, the Supreme Court stated:
Even under the dissent’s reading of § 924(c)(1) [which would require that a
defendant have received a prior judgment of conviction before the “second or
subsequent conviction” provision applied], some criminals whose only offenses
consist of six armed bank robberies would receive a total sentence of 105 years in
prison. We see no reason why it is “glaringly unjust” that petitioner be treated
similarly here, simply because he managed to evade detection, prosecution, and
conviction for the first five offenses and was ultimately tried for all six in a single
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Because the Supreme Court has rejected the position that the enhanced
penalty for a “second or successive” firearms conviction under § 924(c)(1)(C)(i)
applies only to prior judgments of conviction, the district court did not err by
imposing a 25-year sentence for Johnson’s second and third firearms counts.
Next, Johnson asserts, without explanation, that his convictions for both the
underlying carjacking offenses and the firearms offenses violated the Double
Jeopardy Clause of the Fifth Amendment because the offenses arose out of the
same conduct. We review a double jeopardy claim de novo as a question of law.
United States v. Harvey, 78 F.3d 501, 503 (11th Cir. 1996). We explicitly have
held that “the Double Jeopardy Clause does not bar the imposition of cumulative
punishments for violating sections 924(c) [the firearm statute] and 2119 [the
carjacking statute] of Title 18.” United States v. Moore, 43 F.3d 568, 574 (11th
Cir. 1994). We acknowledged that the Double Jeopardy Clause is intended to
protect against multiple punishments for a single offense when Congress did not
intend to set forth cumulative punishments, but concluded, based on the plain
language of § 924(c), that Congress clearly intended to punish cumulatively
violations of § 2119 and § 924(c). Id. at 571-73. Accordingly, the district court
did not err in imposing such punishments.
proceeding.
Deal, 508 U.S. at 137, 113 S. Ct. at 1999.
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Finally, Johnson asserts that Count Four of the indictment did not allege that
he caused serious bodily harm, and, thus, it was improper to sentence him under
§ 2119(2), which sets forth a maximum sentence of 25 years’ imprisonment if the
carjacking results in serious bodily injury. Johnson refers to United States v.
Jones, 526 U.S. 227, 240, 252, 119 S. Ct. 1215, 1222, 1228, 143 L. Ed. 2d 311
(1999), where the Supreme Court held that the “serious bodily injury” language in
§ 2119(2) states a distinct offense element, rather than a sentencing factor, and, as
such, must be alleged specifically in the indictment in order to sustain the enhanced
penalty provided for in that section.
Count Four of the second superseding indictment, however, did in fact allege
that the carjacking resulted in serious bodily injury, and therefore Johnson is
factually incorrect in his assertion to the contrary.
For the above reasons, we affirm Johnson’s sentence.
AFFIRMED.
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