FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-10147
v. D.C. No.
1:07-cr-00156-
MARCUS MAJOR, LJO-1
Defendant-Appellant.
UNITED STATES OF AMERICA,, No. 10-10148
Plaintiff-Appellee, D.C. No.
v. 1:07-cr-00156-
JORDAN HUFF, LJO-2
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
January 9, 2012—San Francisco, California
Filed March 27, 2012
Before: J. Clifford Wallace, John T. Noonan, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Wallace;
Partial Concurrence and Partial Dissent by Judge Noonan
3439
UNITED STATES v. MAJOR 3443
COUNSEL
Kimberly A. Sanchez, Assistant United States Attorney,
Fresno, California, for the plaintiff-appellee.
Jerald Brainin, Esq., Los Angeles, California, for defendant-
appellant Marcus Major.
Arthur H. Weed, Esq., Santa Barbara, California, for
defendant-appellant Jordan Huff.
OPINION
WALLACE, Senior Circuit Judge:
In these consolidated appeals, Marcus Major and Jordan
Huff appeal from their convictions under Title 18 U.S.C.
§§ 1951 and 924. They also appeal from their sentences pur-
suant to section 924(c). We have jurisdiction based on 28
U.S.C. § 1291. We affirm their convictions, but vacate their
sentences and remand for resentencing.
I.
Between December 24, 2005, and July 24, 2006, retail
establishments in Fresno and Madera, California, were
plagued by a string of armed robberies. Major and Huff were
arrested on July 24, 2006, while attempting to flee from the
scene of the robbery of Bulldog Liquor. They were indicted
3444 UNITED STATES v. MAJOR
on June 14, 2007, for conspiracy to interfere with commerce
by robbery in violation of 18 U.S.C. § 1951; conspiracy to
use, carry, brandish, and discharge firearms during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(o); six counts of discharging a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c); twenty-four counts of brandishing a firearm during
and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c); and thirty counts of interference with commerce by
robbery in violation of 18 U.S.C. § 1951.
Major and Huff were tried together with other co-
defendants, and on December 22, 2009, the jury returned
guilty verdicts on all counts against both Major and Huff. The
district court sentenced them on March 25, 2010. Huff’s sen-
tence included prison terms of: 121 months for each of the
conspiracy and robbery counts (Counts 1, 2, and 33 through
62), to be served concurrently; 120 months for the first count
of discharging a firearm (Count 3), to be served consecutive
to the conspiracy and robbery sentences; and 300 months for
each of the remaining 29 discharging and brandishing
offenses (Counts 4 through 32), with each term to run consec-
utively. Major’s sentence was identical except that he was
sentenced to concurrent terms of 135 months for Counts 1, 2,
and 33 through 62. Thus, Huff was sentenced to 8,941 months
(745 years, 1 month) and Major to 8,955 months (746 years,
3 months) imprisonment.
II.
Major and Huff contend that they were denied a fair trial
because the district court allowed the government to present
evidence of other crimes in which they were implicated and
evidence of their affiliation with the “High Roller Boyz,” a
criminal street gang. They also contend that the district court
denied them their Sixth Amendment right to prepare for trial
by ordering that they could have no contact with anyone other
than their attorneys during the trial. In challenging their sen-
UNITED STATES v. MAJOR 3445
tences, Major and Huff argue that section 924(c) violates the
doctrine of separation of powers and resulted in cruel and
unusual punishment in violation of the Eighth Amendment.
Finally, they argue that the district court erred in using a “dis-
charging” offense, rather than a “brandishing” offense as the
first conviction under section 924(c), resulting in sentences
three years longer than if the district court had used a “bran-
dishing” offense as the first conviction.
We review the district court’s evidentiary rulings for abuse
of discretion. United States v. Edwards, 235 F.3d 1173, 1178
(9th Cir. 2000). The constitutionality of the district court’s
order restricting Major and Huff’s communication, the consti-
tutionality of section 924(c), and the district court’s interpre-
tation of section 924(c), on the other hand, are questions of
law, which we review de novo. Ileto v. Glock, Inc., 565 F.3d
1126, 1131 (9th Cir. 2009). We reject all but the last of their
arguments. Thus, we affirm their convictions but vacate their
sentences and remand for resentencing.
III.
Major argues that the district court abused its discretion by
permitting the government to present evidence of an
uncharged home invasion robbery, three uncharged drive-by
shootings, and his affiliation with the High Roller Boyz.
Major and Huff had moved to exclude the evidence of the
shootings and home invasion under Rules 403 and 404(b) of
the Federal Rules of Evidence. They moved to exclude the
evidence of gang affiliation under Rules 402 and 403. The
government opposed the motions, arguing that the shootings
and home invasion showed an association between Major and
Huff and established their identities, and that their gang affili-
ation established identity, association, and motive.
The district court denied both motions. At trial, the govern-
ment presented evidence of the shootings and the home inva-
sion, and discussed this evidence at some length in the final
3446 UNITED STATES v. MAJOR
arguments. The government also elicited testimony showing
that Major and Huff were members of a criminal street gang
known as the High Roller Boyz. We now discuss whether the
district court abused its discretion in denying their motions to
exclude this evidence.
A.
Ballistics evidence indicated that the firearms used in the
shootings and home invasion were also used in some of the
robberies, including the final robbery when Major and Huff
were apprehended. Therefore, according to the government’s
theory, evidence that Major and Huff committed the prior
crimes made it more likely that they were the ones who com-
mitted the charged robberies.
To support its theory, the government presented evidence
that Major, Huff, and their co-defendant, Porcha Neal, com-
mitted the drive-by shootings. The evidence suggested that
Neal orchestrated the shootings as part of a child custody dis-
pute. Evidence showed that Major’s and Huff’s cell phones
were in the area of the shooting at the time.
With respect to the home invasion, Victor Murray testified
that he was involved in that crime with Major and Huff. He
described the firearms and how they were used. His testimony
also suggested that Major and Huff moved on to robbing retail
stores because the home invasion robbery was not very lucra-
tive.
[1] Major argues that the evidence of the drive-by shoot-
ings and home invasion was inadmissible under Rule 404(b).
That rule forbids the use of evidence of other crimes, wrongs,
or acts “to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). However, such evidence
may be admissible for other purposes, “such as proving
motive, opportunity, intent, preparation, plan, knowledge,
UNITED STATES v. MAJOR 3447
identity, absence of mistake, or lack of accident.” Id. at
404(b)(2). Thus, Rule 404(b) “is a rule of inclusion—not
exclusion.” United States v. Curtin, 489 F.3d 935, 944 (9th
Cir. 2007) (en banc). “Once it has been established that the
evidence offered serves one of [the purposes authorized by
Rule 404(b)(2)], . . . the only conditions justifying the exclu-
sion of the evidence are those described in Rule 403 . . . .” Id.
(internal quotation marks omitted).
[2] The government offered the evidence of the shootings
and home invasion to prove identity, which was a material
element of the charged crimes. Identity was at issue because
neither Major nor Huff admitted that they were the perpetra-
tors of the robberies. That the firearms used in the drive-by
shootings and home invasion were also used in some of the
robberies is relevant to prove that the same individuals who
perpetrated the shootings and home invasion also perpetrated
the robberies in which those firearms were used. This fact is
relevant to prove identity because a jury could reasonably
assume that possession of the firearms did not change during
the period between each crime.
[3] To be relevant in the Rule 404(b) context, evidence of
other acts must be sufficient for a jury to “reasonably con-
clude that the act occurred and that the defendant was the
actor.” Huddleston v. United States, 485 U.S. 681, 689
(1988). Here, the evidence was sufficient to establish that the
shootings and home invasion took place and that Major and
Huff committed those crimes. Because the evidence of their
other crimes was offered to prove identity and actually served
that purpose, the district court did not abuse its discretion in
holding that the evidence was admissible under Rule 404(b).
[4] Major also argues that the district court erred in hold-
ing, pursuant to Rule 403, that the probative value of the evi-
dence establishing these crimes was not substantially
outweighed by a danger of unfair prejudice or of needlessly
presenting cumulative evidence. In support of his argument,
3448 UNITED STATES v. MAJOR
Major cites United States v. Curtin, where we held that the
district court shirked its duty under Rule 403 when it permit-
ted the government to present highly prejudicial evidence to
the jury without first thoroughly reviewing the challenged evi-
dence. 489 F.3d at 956-58. We held that a court “does not
properly exercise its balancing discretion under Rule 403
when it fails to place on the scales and personally examine
and evaluate all that it must weigh. . . . One cannot evaluate
in a Rule 403 context what one has not seen or read.” Id. at
958.
Major argues that the district court “made no attempt to
evaluate all of the evidence the government admitted having,
let alone the undisclosed evidence the government anticipated
presenting through the testimony of Victor Murray.” Appel-
lant’s Br. at 18.
However, the record shows that the district court carefully
reviewed the evidence presented to it. In a hearing on the
motion to exclude the evidence, the district court recognized
the potential for prejudice. The court said:
I need to hear from the government on the issue of
whether or not you do have evidence other than this
circumstantial evidence to show the gun and who in
the robberies and secondly how strong your evidence
is because obviously once we throw it out, once—in
other words, throw it out in front of the jury, it’s out.
It’s not something that I can after the fact listen to
and say that’s as weak as it gets and it’s hardly worth
what we’ve gone through here. It’s too late then.
Hr’g Tr. 17, Sept. 4, 2009.
The government described its case, and defense counsel
identified evidence it believed the government intended to
introduce. Based on these representations, the district court
concluded that the danger of unfair prejudice and of need-
UNITED STATES v. MAJOR 3449
lessly presenting cumulative evidence did not outweigh the
probative value.
This case is not at all like the situation we addressed in
Curtin, where the district court failed to review the challenged
evidence thoroughly and, therefore, could not appreciate the
degree of danger of unfair prejudice it posed. Major does not
argue that the district court failed to understand the full scope
of the challenged evidence. Here, the district court’s review
allowed it to appreciate fully and to weigh accurately the chal-
lenged evidence’s probative value and its potential for unfair
prejudice.
[5] In terms of whether the evidence was needlessly cumu-
lative, the district court did its best to determine what other
evidence the government had to prove the identity of the rob-
bers. The government’s other evidence was not strong enough
to overcome the district court’s discretion to conclude that the
evidence of other crimes was not needlessly cumulative. The
district court weighed everything it needed to weigh, and its
decision to admit the evidence was not an abuse of discretion.
B.
Major also argues that the district court abused its discre-
tion by admitting evidence of Major and Huff’s gang affilia-
tion. The government argues that this challenge is moot
because, while the district court denied the pre-trial motions
of Major and Huff to exclude the evidence, the government
never presented testimony at trial that the High Roller Boyz
was a criminal street gang.
The government described High Roller Boyz as a criminal
street gang in its opening statement and elicited testimony
implying that the High Roller Boyz was a criminal street
gang. For example, the government presented evidence that
one of the prominent members of the High Roller Boyz was
in jail; that members had nicknames such as “Woo Capone”
3450 UNITED STATES v. MAJOR
and “Crazy A”; that members wore symbolic clothing to iden-
tify themselves as members; and that they used hand signs. It
would not have taken expert testimony for jurors to decide
that High Roller Boyz was a criminal street gang. The issue
is not moot.
Nevertheless, the district court did not abuse its discretion
in admitting evidence of Major’s and Huff’s affiliation with
the High Roller Boyz. As part of its case-in-chief, the govern-
ment introduced a jacket taken from Huff’s car with the spray
painted words “High Roller Boyz” and “Killa Kountry” on it.
The jacket was identical to jackets stolen during one of the
robberies. The government also presented evidence that
“Kountry” was Major’s nickname.
[6] The fact that the jacket seized from Huff’s car was
identical to jackets taken in one of the robberies is relevant to
establish that the seized jacket was taken during that robbery.
The fact that the jacket was spray painted with the words
“High Roller Boyz” is relevant to establish that the individu-
als who took the jackets in the robbery were associated with
the High Roller Boyz. That “High Roller Boyz” refers to a
criminal street gang of which Major and Huff were members
is relevant to establish that they, as members of the gang, took
the jackets during the robbery. Therefore, evidence of their
High Roller Boyz gang affiliation is directly relevant to prov-
ing their motive and identity as the perpetrators of the rob-
bery.
[7] Major and Huff vigorously denied that they were
involved in the jacket theft. The other evidence linking them
to this robbery was circumstantial. The district court took seri-
ously the danger of unfair prejudice posed by this evidence.
Therefore, before balancing the probative value against the
risk of prejudice, the court held an evidentiary hearing to
determine whether High Roller Boyz was a verifiable criminal
street gang and to determine each defendant’s affiliation with
it. It found that the High Roller Boyz was a criminal street
UNITED STATES v. MAJOR 3451
gang and that Major and Huff were members. The district
court concluded that the government could explain that High
Roller Boyz was a gang in order for it to demonstrate identity
and motive. In other words, the district court concluded that
the danger of unfair prejudice did not substantially outweigh
the evidence’s probative value. That decision was not an
abuse of discretion.
IV.
Huff next argues that he and Major were denied their right
to prepare for trial because the district court ordered that they
not have any contact with anyone other than their attorneys.
The district court imposed this restriction after it heard evi-
dence suggesting that Major and Huff had attempted to learn
the names of jurors. Huff asserts that this restriction necessar-
ily impeded his preparation for trial.
[8] We assume, without deciding, that a restriction on the
communication of a defendant in custody could result in a
violation of the Sixth Amendment right to prepare for trial.
For example, such a restriction could conceivably prevent a
defendant from soliciting help from family and friends in
obtaining voluntary cooperation from witnesses. Neverthe-
less, Huff does not identify any evidence or offer any argu-
ment to establish how the restriction actually prevented him
from preparing for his trial. Indeed, both Major and Huff
requested that the district court lift the restriction so they
could visit with their families on a holiday. But neither of
them requested that the district court lift the restriction on the
ground that they could not adequately prepare for trial. In the
absence of a proper objection and of any evidence that Major
and Huff were actually impeded in their ability to prepare for
trial, there was no constitutional error in the district court’s
effort to ensure the safety of the jurors.
V.
Major and Huff’s argument that section 924(c) violates the
doctrine of separation of powers merits little discussion. In
3452 UNITED STATES v. MAJOR
United States v. Kinsey, we upheld an attack on the mandatory
minimum sentence provision for drug trafficking crimes
under 21 U.S.C. § 841(b)(1)(A). 843 F.2d 383, 393 (9th Cir.
1988), overruled on other grounds by United States v.
Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). We reasoned
that “[c]ontrol and enforcement of drug abuse and drug traf-
ficking fall within the scope of Congress’ delegated powers
and such mandatory penalty provisions do not threaten the
independence of the judiciary as set forth in Article III of the
United States Constitution.” Id. We do not distinguish
between mandatory minimum sentences under 21 U.S.C.
§ 841(b)(1)(A) and mandatory minimum sentences under 18
U.S.C. § 924(c). United States v. Chaidez, 916 F.2d 563, 565
(9th Cir. 1990).
[9] Huff offers a new argument. Although in Kinsey and
Chaidez we held that Congress does not intrude on the judi-
ciary by adopting mandatory minimum sentences, Huff con-
tends that section 924(c) improperly allows the executive to
intrude on the judiciary’s power by giving the prosecutor
authority to determine the length of a defendant’s sentence
through charging decisions. Huff’s argument is creative, but
wrong. It is true that section 924(c) leaves the executive
branch with significant discretion to determine the potential
penalties to which a criminal defendant might be exposed, at
least when a defendant stands accused of multiple violations.
But the discretion to decide whether to bring charges and
which charges to bring is clearly a part of the executive
authority—not the judicial authority. See Bordenkircher v.
Hayes, 434 U.S. 357, 364 (1978) (“In our system, so long as
the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether
or not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion”). Section
924(c) does not violate the doctrine of separation of powers.
VI.
Major and Huff also argue that section 924(c) violates the
Eighth Amendment. We have rejected such challenges before.
UNITED STATES v. MAJOR 3453
In United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.
1998), we upheld a 95-year sentence under section 924(c)
against an Eighth Amendment challenge. We reaffirmed this
holding in United States v. Parker, 241 F.3d 1114, 1117-18
(9th Cir. 2001), and again in United States v. Hungerford, 465
F.3d 1113, 1118 (9th Cir. 2006).
[10] The sentences of Major and Huff are significantly
higher in number of years. No one could dispute that a sen-
tence of almost 750 years is harsh. But there is no difference
in principle between their sentences and the 95-year sentence
we upheld in Harris. Therefore, we adhere to our precedent
and reject this argument.
Huff’s fallback argument is that we should reconsider our
precedents in light of Graham v. Florida, 130 S. Ct. 2011
(2010). There, the Supreme Court held that life imprisonment
without possibility of parole for a juvenile convicted of a non-
homicide crime constitutes cruel and unusual punishment. Id.
at 2034. But Graham did not make any change to the law that
we applied in the Harris line of cases. Graham is not irrecon-
cilable with Harris, and we, therefore, must continue to fol-
low our precedent. See Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc) (“[T]he relevant court of last resort
must have undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly
irreconcilable”).
VII.
Although we reject the argument that section 924(c) is
unconstitutional, we must examine whether the district court
properly applied the section. The problem is that the order in
which convictions under section 924(c) are received can
affect the mandatory minimum sentence, but section 924(c)
provides no rule for ordering multiple convictions in the same
verdict.
3454 UNITED STATES v. MAJOR
The minimum sentence for a violation of section 924(c)
varies depending on a number of factors. A defendant’s first
conviction may result in a minimum sentence as low as five
years (for using or carrying a firearm without brandishing or
discharging it) or as high as thirty years (if the firearm “is a
machinegun or a destructive device, or is equipped with a
firearm silencer or firearm muffler”). 18 U.S.C.
§ 924(c)(1)(A)(i), (B)(ii). A defendant’s second or subsequent
conviction, however, carries a minimum sentence of twenty-
five years imprisonment. 18 U.S.C. § 924(c)(1)(C)(i). When
a defendant is charged and found guilty of multiple violations
of section 924(c) in the same indictment, one of the convic-
tions is treated as the first conviction, and the others are
treated as “second or subsequent” convictions. Deal v. United
States, 508 U.S. 129, 132 (1993).
Major and Huff were convicted of six counts of discharging
a firearm (counts 3 through 8) and twenty-four counts of bran-
dishing a firearm (counts 9 through 32). The statute provides
a mandatory minimum sentence of seven years imprisonment
for brandishing, and ten years for discharging.
§ 924(c)(1)(A)(ii), (iii). The district court rejected Major’s
and Huff’s request that a brandishing count be deemed the
first conviction, and instead deemed count 3, a discharging
count, as the first conviction. The district judge reasoned that
the statute “refers not to the first offense committed, but
rather, the first offense convicted, and the order is established
by the pleading. That is the indictment and the jury verdict.”
Hr’g Tr. 7, Mar. 25, 2010. Thus, Major and Huff received
sentences three years longer than they would have had the dis-
trict court deemed a brandishing count to be the first convic-
tion.
[11] The district court was correct in concluding that sec-
tion 924(c) requires the court to determine the order in which
a defendant receives convictions, rather than the order in
which offenses are committed. In Deal, the Supreme Court
explained: “Under the terminology ‘second or subsequent
UNITED STATES v. MAJOR 3455
conviction,’ in the context at issue here, it is entirely clear . . .
that a defendant convicted of a crime committed in 1992, who
has previously been convicted of a crime committed in 1993,
would receive the enhanced sentence.” 508 U.S. at 135. The
order in which the crimes were committed has no bearing on
the sentence. However, the statute does not provide a rule for
how a court should determine the order of convictions when
a defendant is convicted of multiple offenses in the same
indictment.
The district court held that the order of convictions is estab-
lished by the indictment and jury verdict, but we have found
no authority for that rule. Nor have we heard any persuasive
argument to support it. In Deal, the petitioner argued that the
term “conviction,” as used in section 924(c) was ambiguous,
because it could mean “either the return of a jury verdict of
guilt or the entry of a final judgment on that verdict.” 508
U.S. at 131. Under the former construction, multiple verdicts
in the same indictment could constitute “second or subse-
quent” convictions. Id. But under the latter, multiple verdicts
would not constitute “second or subsequent” convictions
“since the District Court entered only a single judgment on all
of the counts.” Id. The Supreme Court rejected this argument
and held that the term “conviction,” as used in section 924(c),
unambiguously means “the finding of guilt by a judge or jury
that necessarily precedes the entry of a final judgment of con-
viction.” Id. at 132. The Court recognized that “the terms
‘second’ and ‘subsequent’ admit of at least two meanings—
next in time and next in order or succession,” and that “[t]hat
ambiguity is worth pursuing if ‘conviction’ means ‘judg-
ment,’ since a judgment entered once-in-time can (as here)
include multiple counts.” Id. at 133 n.1. The Court did not
attempt to resolve the ambiguity, however, because “[u]nlike
a judgment on several counts, findings of guilt on several
counts are necessarily arrived at successively in time.” Id.
Here, however, that ambiguity takes center stage because the
order in which Major and Huff received their convictions
directly impacts how long their sentences must be.
3456 UNITED STATES v. MAJOR
The government argues that the jury verdict form dictates
the order in which findings of guilt are made because a ver-
dict is not valid “until deliberations are over, the result is
announced in open court, and no dissent by a juror is regis-
tered.” Harrison v. Gillespie, 640 F.3d 888, 898-99 (9th Cir.
2011) (en banc), quoting United States v. Nelson, 692 F.2d
83, 84-85 (9th Cir. 1982). This principle is not controversial.
However, the Supreme Court was not referring to the time
when a jury verdict becomes valid when it reasoned that find-
ings of guilt are “necessarily arrived at successively in time.”
Deal, 508 U.S at 133 n.1. In most cases, juries presented with
multiple counts attempt to resolve all of the counts before
returning their verdicts. When they do, the return of the ver-
dicts on several counts is no less simultaneous than the entry
of judgment on several counts. If “finding of guilt” means the
time when the verdict becomes valid, then it is not at all
“[u]nlike a judgment on several counts.” See id. The Supreme
Court’s statement that findings of guilt are necessarily arrived
at successively in time refers, instead, to the time when the
jury actually makes its findings of guilt—during deliberations.
[12] Because “conviction” as used in section 924(c) means
“finding of guilt,” the only way to determine the order in
which convictions are received on multiple counts in the same
indictment is to determine the order in time in which the jury
made its findings during deliberations. Because deliberations
are secret, it will usually be impossible to make this determi-
nation. In the case before us, we cannot determine whether the
jury found Major and Huff guilty of a brandishing offense
before or after it found them guilty of a discharging offense.
This is not to say that it will always be impossible to deter-
mine the order in which a jury arrives at findings of guilt on
multiple counts. For example, a jury might return verdicts on
some counts in an indictment and not others. Fed. R. Crim. P.
31(b)(2). If the judge asked the jury to continue deliberation
on the remaining counts and the jury later returned verdicts on
them, then the court would know that the jury’s determination
UNITED STATES v. MAJOR 3457
on the counts in the first return preceded those on the counts
in the second return. Or, if a jury poll were to reveal a lack
of unanimity as to one or more counts, the court could direct
the jury to deliberate further. Id. at 31(d). If, after further
deliberation, the jury returned unanimous verdicts, the court
would know that the findings in the earlier return were made
before the findings in the later return. But when verdicts on
several counts are returned simultaneously, the court lacks
sufficient information to determine the order in which the jury
made findings of guilt, even if logic dictates that those find-
ings were necessarily made successively in time.
We do not have before us other possibilities, such as spe-
cial jury interrogatories or a judge’s direction to number the
findings of guilt in order of when the jury acted unanimously.
Obviously, there are other possibilities, but they were not
used in this case.
We also reject the government’s proposed rule because it
subjects the defendant entirely to the caprice of the judge
approving the verdict form to be used by the jury. If we
adopted a rule that determinations of guilt are made in the
order in which they are listed in the verdict form, we might
expect prosecutors to request verdict forms placing the
offense with the highest penalty first. We would expect defen-
dants, on the other hand, to request verdict forms placing the
offense with the lowest penalty first. Section 924(c) offers no
help in directing the district court which one to choose. In
Deal, the Supreme Court eschewed a rule that would “confer
[on prosecutors] the extraordinary new power to determine
the punishment for a charged offense by simply modifying the
manner of charging.” 508 U.S. at 134 n.2. Similarly, we will
not adopt a rule that would give either the prosecutor, the
defense, or the court the power to determine the punishment
for a charged offense by simply modifying the verdict form.
[13] Section 924(c) unambiguously provides that the order
in which convictions are received must affect the mandatory
3458 UNITED STATES v. MAJOR
minimum sentence. However, it is ambiguous as to how such
convictions should be ordered when verdicts on multiple
counts are returned at the same time. We apply the rule of len-
ity when, “after consulting traditional canons of statutory con-
struction, we are left with an ambiguous statute.” United
States v. Hayes, 555 U.S. 415, 429 (2009), quoting United
States v. Shabani, 513 U.S. 10, 17 (1994); see also Rewis v.
United States, 401 U.S. 808, 812 (1971) (“[A]mbiguity con-
cerning the ambit of criminal statutes should be resolved in
favor of lenity”). Applying the rule of lenity, when the district
court does not have sufficient information to determine the
order in which the jury made determinations of guilt during
jury deliberations on multiple counts under section 924(c), it
must order the convictions so that the mandatory minimum
sentence is minimized. In this case, application of the rule
requires the district court to deem one of the brandishing
counts, rather than a discharging count, to be the first convic-
tion.
AFFIRMED IN PART, VACATED and REMANDED
IN PART.
NOONAN, Circuit Judge, concurring and dissenting:
I concur in the opinion of the court except as to the sen-
tences of over 700 years. The court says, “No one could dis-
pute that a sentence of almost 750 years is harsh.” No one
would bother to characterize such a sentence as “harsh.” It is
simply incapable of execution.
No known human being has the capacity to live 700 years.
No living human being is likely to live 700 years. On its face,
the sentence is impossible to execute.
The United States asks us to affirm this sentence. It asks us
to affirm a sentence that cannot be carried out. I do not
UNITED STATES v. MAJOR 3459
believe that we should participate in this utterly empty ges-
ture.