United States v. Anderson

SILBERMAN, Circuit Judge,

dissenting in part:

Appellant Anderson raises one further argument — a pure question of statutory interpretation — with which I agree. He contends that his multiple convictions under four separate counts of violations of section 924(e)(1) are based on a misreading of the statute. Since the government asserts that he committed only one drug trafficking crime — a section 846 conspiracy — he cannot be guilty of more than one violation of section 924(e)(1) in connection with that conspiracy. As does the majority opinion, I include the precise language of section 924(c)(1).

Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years....

It seems that there are three possible meanings that can be derived from this language. The first, argued by appellant, is that the unit of prosecution is the drug trafficking crime, i.e., it does not matter how many times a single gun is “used” during the commission of a drug trafficking crime nor how many guns are used during that period; the statute contemplates only one section 924(c)(1) conviction for each event or series of events that constitutes one crime. (That, of course, does not mean that the defendant must be charged with the underlying drug crime; only that the elements of that crime, as a predicate to the section 924(c)(1) violation, must be proven beyond a reasonable doubt. See United States v. Laing, 889 F.2d 281, 288 (D.C.Cir.1989), cert. denied, 494 U.S. 1069, 110 S.Ct. 1790, 108 L.Ed.2d 792 (1990)). In other words, once the jury determines that a defendant has committed the underlying crime, it asks a binary question — whether he has or has not used a gun during and in relation to the crime. The answer to that question is either “yes” or “no,” but it cannot be “yes, yes, yes, and yes?’ All six circuits that have encountered this issue, with the single exception (prior to this case) of the Eighth Circuit, have read section 924(c)(1) in this manner. See United States v. Lindsay, 985 F.2d 666, 674-76 (2d Cir.1993), cert., denied, — U.S. -, 114 S.Ct. 103, 126 L.Ed.2d 70 (1993); United States v. Sims, 975 F.2d 1225, 1233 (6th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993); United States v. Moore, 958 F.2d 310, 312-14 (10th Cir.1992); United States v. Hamilton, 953 F.2d 1344, 1345-46 (11th Cir.), cert. denied, — U.S. -, 113 S.Ct. 240, 121 L.Ed.2d 174 (1992); United States v. Privette, 947 F.2d 1259, 1262-63 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1279, 117 L.Ed.2d 505 (1992); United States v. Fontanilla, 849 F.2d 1257, 1258-59 (9th Cir.1988).

The second reading of the statute was developed by the Eighth Circuit. It puts the emphasis not on each separate “use,” but on separate “guns.” That is to say, whenever the defendant uses more than one gun during the commission of a drug crime he violates section 924(c)(1) as many times as he uses an additional gun. United States v. Freisinger, 937 F.2d 383 (8th Cir.1991). The Eighth Circuit arrived at this interpretation because the statute refers to “a” gun; therefore, according to that court, the language unambiguously contemplates that each separate gun used during and in relation to the drug crime *360gives rise to a new violation of section 924(c)(1). I find the Eighth Circuit’s exegesis quite unpersuasive; it does not seem to me to have semantic plausibility.

Not surprisingly, the Eighth Circuit, once adopting the “each gun is a separate violation” reading, flinched from the sentencing implications of its decision, and instead determined that “because [the defendant] was carrying more than one firearm during a single drug trafficking offense, the convictions after the first one are not ‘second or subsequent’ convictions within the meaning of the statute.” Freisinger, 937 F.2d at 391. Accordingly, the court concluded “that the sentence imposed on multiple section 924(c)(1) convictions based on a single underlying offense cannot exceed five years.” 937 F.2d at 392. Ironically, then, the only court to interpret section 924(c)(1) as permitting multiple convictions for the use of separate guns during a single crime did not apply that holding to require, as the statute does, multiple ‘punishments for those uses. If that holding were actually applied in this case it would leave Anderson convicted of four section 924(c)(1) violations but would require his sentence to be reduced from 20 to five years.

The Eighth Circuit expanded somewhat on Freisinger in United States v. Edwards, 994 F.2d 417 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 701, 126 L.Ed.2d 667 (1994). There it held that where “two firearm counts were based upon two separate seizures of weapons” the evidence suggested “the use of different weapons at different times [which] ... constitutes two separate 924(c) offenses for which consecutive sentences may be imposed.” 994 F.2d at 424. See also United States v. Mabry, 3 F.3d 244 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1403, 128 L.Ed.2d 75 (1994) (same); United States v. Lucas, 932 F.2d 1210 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991) (same). Under the Eighth Circuit’s current view, then, a defendant who uses multiple firearms during one underlying crime can be convicted separately for each use, unless the firearms were all used at the same time (which apparently would include continuing uses during an extended conspiracy), in which case only one five-year sentence may be entered; whereas, if the uses occurred separately 20-year consecutive sentences may be imposed for each subsequent offense after the first.

The third reading, which the majority pioneers (although it does not disavow the Eighth Circuit’s “separate gun” analysis), is that each separate deployment of a gun during and in relation to a drug crime is a new violation of section 924(c)(1). That interpretation is linguistically plausible, but I do not believe it is what Congress intended. One can easily conceive of a defendant holding, brandishing, or referring to a gun a number of times in the course of committing a drug trafficking offense such as a sale. As I understand the majority, each time he would be indulging a separate “impulse” and then committing a separate section 924(c)(1) violation. Maj.Op. at 356 n. 19. And when the offense, as in this case, is a conspiracy lasting over months, the same gun might be so employed scores or even hundreds of times. Presumably, under the majority’s reasoning, if a defendant were charged with possession of drugs with intent to distribute and kept a gun in a chest, each time he indulged the impulse to fondle the gun so as to embolden his criminal determination, see United States v. Bailey, 36 F.3d 106, 114, 116 (citations omitted) (D.C.Cir. Oct. 4,1994) (ere banc), he would have committed a fresh section 924(c)(1) violation.

Although section 924(c)(1) is not just a sentencing enhancement provision — it is, as the majority emphasizes, a separate crime— nevertheless, the first section 924(c)(1) violation calls for five years imprisonment, and the second and all others for an additional 20 years each. If each separate “use” of a gun, so defined, during a commission of a drug crime was a separate violation it would not be unusual for the government to obtain, as a practical matter, a life sentence whenever a gun accompanies a drug crime. Indeed, in this case, had Anderson been sentenced after the Supreme Court decided Deal v. United States, — U.S. -, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) (affirming 105-year sentence for six convictions under section 924(c)(1)), he would have received not just 20 years because of the four separate section 924(c)(1) convictions, but 65 years. I think if Congress had intended such a severe sentence to be imposed on a defendant who *361displays a gun more than once in relation to the same drug trafficking conviction, it would have said so more directly.

The majority contends that the dominant reading of section 924(c)(1) provides insufficient deterrence of multiple “uses” of a gun in relation to a single crime. But the majority’s reasoning suggests that Congress actually contemplated that a defendant, having brandished a gun once in connection with a drug trafficking crime — let’s suppose at 9:00 p.m. when, as a seller, he was introduced to a prospective drug purchaser — conceivably would be deterred from brandishing a gun the second time at 9:30 p.m. when the sale was consummated. I think that is a rather farfetched supposition of congressional purpose. Congress was concerned about heightened disincentives. After all, the second and succeeding convictions for section 924(c)(1) violations carry a 20-year sentence. But, if Congress had contemplated the majority’s exquisite concept of disincentives to deter a criminal’s repeated brandishing of a gun while committing a drug trafficking offense, surely Congress would have been a good deal more precise as to its definition of “use.”1

I believe the more plausible and logical interpretation of section 924(c)(1) to be the one six circuits have endorsed. And, in any event, given the ambiguity of the statutory language, the rule of lenity dictates that we accept appellants’ argument. Lindsay, supra, 985 F.2d at 676 (citation omitted); United States v. Chalan, 812 F.2d 1302, 1317 (10th Cir.1987) (citations omitted).

I respectfully dissent.

Before: EDWARDS, Chief Judge; WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS and TATEL, Circuit Judges.

ORDER

No. 90-3041

Feb. 9, 1995

Appellant’s Suggestion For Rehearing In Bane and the response thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service voted in favor of the - suggestion. Upon consideration of the foregoing, it is

ORDERED, by the Court in banc, that the suggestion is granted and this case will be reheard by the court sitting in banc.

It is FURTHER ORDERED, by the court in banc, that the judgment of the court filed herein on October 18, 1994, is hereby vacated.

A future order will govern further proceedings.

. In that connection, it is ironic that for purposes of this case the majority, see Maj.Op. at 356 n. 19, seems to embrace a definition of “use” — at least with respect to the additional alleged section 924(c)(1) violations — which is close, if not identical, to the definition for which we dissenters argued in United States v. Bailey, 36 F.3d 106, 111, 113 (D.C.Cir.1994) (en banc-) — an active employment, or “impulse" to use a gun, rather than a passive possession. The result of the majority's position here is that defendants get the worst of both analytical worlds.