[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________________ June 24, 2003
THOMAS K. KAHN
CLERK
No. 02-11783
_________________________________
D.C. Docket No. 01-00263-CR-J-21-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK LEWIS WILLIAMS,
Defendant-Appellant.
________________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________________
(June 24, 2003)
Before MARCUS and WILSON, Circuit Judges, and RESTANI*, Judge.
RESTANI, Judge:
This is an appeal from a final judgment in a criminal case. Defendant
challenges his sentence of a ten-year minimum mandatory term under 18 U.S.C. §
924(c)(1) based on his codefendant’s use or discharge of a semiautomatic assault
weapon. We affirm the judgment of the district court.
FACTS1
The Putnam County Federal Credit Union, located at 112 Summit Street in
Crescent City, Florida, is a federally insured financial institution. On the morning
of March 29, 2001, the appellant, Derrick Lewis Williams and three others,
Cleveland Deartron Snider, Veonte Latrone Simmons, and Daniel Dextron
Addison, planned to commit an armed robbery of the credit union. The plan was
for Williams, Addison, and Simmons to rob the credit union, and for Snider to
wait for them at another location in a second vehicle.
Williams, Addison, and Simmons disguised themselves with masks and
gloves. Williams was armed with a 9mm handgun, and Addison was armed with
an “AK-47” style semiautomatic assault rifle. The three men arrived at the Putnam
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
1
This factual statement is adapted from Williams’s appellate brief.
2
County Federal Credit Union at about 9:45 a.m. Williams and Addison carried
their firearms into the credit union. Williams then held the tellers at gunpoint,
with his 9mm handgun, while Addison and Simmons emptied the teller drawers.
Williams, Addison, and Simmons left the credit union with cash totaling more
than $11,000. Immediately after leaving the front door of the credit union,
Addison accidently fired a shot from the assault rifle into the sidewalk.
Williams, Addison, and Simmons left the scene of the credit union. Later,
Williams, Addison, Simmons and Snider regrouped and split the proceeds of the
credit union robbery amongst themselves.
On September 20, 2001, a federal grand jury in the United States District
Court for the Middle District of Florida, Jacksonville Division indicted Williams
on two counts: (1) armed credit union robbery (Count I); and (2) use of and
carrying a handgun during the commission of the substantive crime itself, as well
as aiding and abetting the same (Count II).
On December 19, 2001, Williams pled guilty to the charges in the
Indictment. The district court accepted the guilty plea, and Williams was
sentenced on March 26, 2002. The court sentenced defendant to forty-four (44)
months as to Count I, and one hundred twenty (120) months as to Count II, to run
consecutive to Count I, inter alia. Defendant timely objected to the enhanced
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penalties under 18 U.S.C. § 924 (c)(1). The appellant is currently serving the
aforementioned sentence.
There is no challenge to the conviction, and the parties agree that, absent the
enhancement based on the codefendant’s conduct, a minimum mandatory seven-
year sentence as to Count II would have been appropriate based on Williams’s
brandishment of a firearm. 18 U.S.C. § 924 (c)(1) reads in relevant part as
follows:
(c)(1)(A) Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other provision of law,
any person who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking crime
that provides for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence or drug
trafficking crime -
(i) be sentenced to a term of imprisonment of not less than
five (5) years;
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of no less than seven (7) years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than ten (10) years.
(B) If the firearm possessed by a person convicted of a violation of this
subsection -
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(i) is a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be
sentenced to a term of imprisonment of not less than ten
(10) years; or
(ii) is a machine gun or destructive or a destructive device, or
is equipped with a firearm silencer or firearm muffler, the
person shall be sentenced to a term of imprisonment of not
less than thirty (30) years.
Id. (emphasis added).
Thus, the ten-year minimum mandatory sentence applies to Williams’
conduct under Count II, if he may be held accountable for Addison’s use of a
semiautomatic assault weapon or Addison’s discharge of the weapon. As the
indictment did not mention the assault rifle, there are two issues to be addressed.
First, is the indictment fatally flawed? Second, if not, may Williams be sentenced
under the terms of § 924(c)(1) for the conduct of Addison?
We begin with the indictment. It states that Williams did “aid and abet the
using and carrying of a firearm, that is, a handgun.”2 The indictment was in error.
While Williams was properly charged with using and carrying a handgun, his
codefendant carried the AK-47 rifle. Thus, Williams should have been
additionally charged with aiding and abetting such conduct, not the handgun
2
The parties agree that the 9 mm semiautomatic handgun carried by Williams is not a
semiautomatic assault weapon within the meaning of 18 U.S.C. § 924(c)(1).
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conduct.
The indictment would also have been correct, however, if no mention had
been made of the handgun, and the generic term “firearm” had been used
throughout. The United States Supreme Court has recently made clear that 18
U.S.C. § 924(c)(1)(A) does not specify elements of a crime which must be charged
in an indictment. Harris v. United States, 536 U.S. 545, 552-56 (2002) (defendant
sentenced to seven-year minimum for brandishment, for which he was not indicted
or tried.); accord, United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000)
(finding that § 924(c)(1)(A) merely singles out subsets of persons for more severe
punishment); United States v. Carlson, 217 F.3d 986, 987-89 (8th Cir. 2000)
(same). Therefore, the word “handgun” in the indictment was mere surplusage.
See United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1996) (“[M]ere
surplusage may be deleted from an indictment without error. . .[;] ‘[a] part of an
indictment unnecessary to and independent from the allegations of the offense
proved may normally be treated as a useless averment that may be ignored’[;]
[and] [i]t is not an unconstitutional amendment to ‘drop from an indictment those
allegations that are unnecessary to an offense that is clearly contained within it . . .
.’”) (quoting United States v. Miller, 471 U.S. 130, 136, 144 (1985)). The
importance of this distinction is that “an amendment is per se reversible error,
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while a variance requires the defendant to show that his rights were substantially
prejudiced by the variance in order to be entitled to a reversal.” United States v.
Keller, 916 F.2d 628, 633 (11th Cir. 1990) (citing United States v. Figueroa, 666
F.2d 1375, 1379 (11th Cir. 1982)).
While it appears that in view of Harris, defendant does not argue a per se
reversible error, he also does not appear to argue that the error somehow misled
him, so that he was substantially prejudiced by the error.3 That would be a
difficult argument to make under the facts of this case. The plea colloquy makes
clear that defendant acknowledged that he and Addison used firearms during a
robbery, and that Addison used or discharged4 a semiautomatic assault weapon,
and that he and Addison aided and abetted each other in a joint armed robbery of
the credit union. Nothing in the record suggests that defendant was in any way
disadvantaged by the inclusion of the surplus language in the indictment. This
leaves only the issue of the proper interpretation of 18 U.S.C. § 924(c)(1).
3
Williams does not seek to withdraw his guilty plea for any reason, including
misapprehension of sentencing ramifications.
4
The circumstances surrounding the discharge of the rifle are not important as the mere
use of such a weapon results in the same ten-year minimum assault under § 924(c)(1)(B).
Defendant makes no argument that § 924(c)(1)(B) specifies elements of a crime, any more than §
924(c)(1)(A) does. See Harrison v. United States, 272 F.3d 220, 226 (4th Cir. 2001) (holding
that whether a gun is classified as a semi-automatic assault weapon is a sentencing factor that
need not be alleged in the indictment.).
7
Defendant argues that 18 U.S.C. § 924(c)(1) was intended to apply only to
direct conduct of defendants and not to conduct they aid or abet. While defendant
argues by analogy to certain cases applying the United States Sentencing
Guidelines, this is not a Guideline issue, rather the statute provides the only basis
for the mandatory minimum sentence.
The applicable legal principle is that a person who “aids, abets, counsels,
commands, induces or procures” the commission of an offense “is punishable as a
principal.” 18 U.S.C. § 2; see also United States v. Bazemore, 138 F.3d 947, 949
(11th Cir. 1998). Under §2, the acts of the principal become those of the aider and
abettor as a matter of law. Pereira v. United States, 347 U.S. 1, 10-11 (1954). To
prove aiding and abetting a § 924(c) offense, the government must show that the
substantive offense of carrying or using a firearm in relation to a crime of violence
was committed, that the defendant associated himself with the criminal venture,
and that he committed some act that furthered the crime. United States v.
Hamblin, 911 F.2d 551, 557 (11th Cir. 1990) (citing United States v. Pareja, 876
F.2d 1567, 1570 (11th Cir. 1989)).
Here, defendant clearly associated himself with the use of the AK-47 assault
rifle. He did all but carry it himself. In finding the provisions of § 924(c)(1)
applicable to Williams, we are persuaded by the holding of our sister circuit in
8
United States v. Simpson, 979 F.2d 1282, 1286 (8th Cir. 1992). Simpson was
charged with aiding and abetting a bank robbery and with aiding and abetting a §
924(c) firearms charge. Although she drove the getaway car and did not enter the
bank, the court upheld a mandatory minimum sentence based on her codefendant’s
firearms conduct. Simpson relies in part on dicta in Busic v. United States, 446
U.S. 398 (1980), superceded by statute as stated in United States v. Gonzalez, 520
U.S. 1, 10 (1997). In that case, Busic was found guilty of aiding and abetting in
the armed assault of a federal officer, punishable under 18 U.S.C. § 111, even
though Busic himself was not armed. The Court reasoned that, pursuant to 18
U.S.C. § 2, the gun “became Busic’s as a matter of law.” 446 U.S. at 410-11. The
court added that, if the codefendant were punishable under § 924(c), which did not
then apply to the circumstances of Busic’s case, “Busic, too would have been
guilty of that crime as an aider and abettor.” 446 U.S. at 411 n.17.
It follows that because Williams would be liable for the conduct he aided
and abetted, even if he did not carry a gun, he is accountable for the entirety of the
conduct. Congress clearly intended to discourage use of assault weapons. As an
aider and abettor, Williams, in essence, possessed the assault rifle.
We find nothing in the language of § 924(c)(1) indicating that Congress
intended to vitiate ordinary principles of aiding and abetting liability for purposes
9
of sentencing under that subsection. Accordingly, we find that the district court
properly interpreted and applied 18 U.S.C. § 924(c)(1) to require defendant to
serve a mandatory minimum ten-year sentence on Count II of the indictment.
AFFIRMED.
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