U.S. v. Morris

• Decision Date: 18 April 2001
• Docket Number: No. 00-3076,00-3076
• Citation: 247 F.3d 1080
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. DEMARQUES M. MORRIS, DEFENDANT - APPELLANT
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1080

247 F.3d 1080 (10th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. DEMARQUES M. MORRIS, DEFENDANT - APPELLANT.

No. 00-3076

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 18, 2001

Appeal from the United States District Court for the District of Kansas (D.C. No. 99-CR-10086-003) [Copyrighted Material Omitted] Michael D. Hepperly (Cynthia F. Grimes, Grimes & Rebein, L.C., Lenexa, Kansas, with him on the briefs), Wichita, Kansas, for the Defendant-Appellant.

D. Blair Watson, Assistant United States Attorney, (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before Brorby, McKAY and Lucero, Circuit Judges.

Lucero, Circuit Judge

DeMarques Morris was found guilty by a jury on two Hobbs Act counts, 18 U.S.C. § 1951, and five counts of using, brandishing, or discharging a firearm during a crime of violence, 18 U.S.C. § 924(c). On March 6, 2000, he was sentenced to 490 months imprisonment. This matter is before us on direct appeal of Morris's convictions. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

I.

In the Spring of 1999, two Wichita grocery stores were robbed at gunpoint. During one of these robberies, a customer was injured by the discharge of a robber's gun.

Approximately a month after the second robbery, on June 30, 1999, Sh-Pone Harris and Elliot Toles were arrested following a robbery of a Burger King, also in Wichita. They were taken to the FBI's Violent Crimes Task Force at approximately 5:30 p.m. During interrogation, Harris implicated a third suspect in the Burger King and grocery store robberies. He gave investigators information as to where they might find the third suspect, and the investigators set up surveillance at two spots at about 8:30 p.m. At 11:30 p.m., Morris, a.k.a. "Kidnap," was arrested as he was coming out of a convenience store.

Morris was taken to the office of the FBI Violent Crimes Task Force and handcuffed to a table. At approximately 12:30 a.m. on July 1, a personal history on Morris was completed. Three hours later agents Nevil and Pritchett returned to Morris and played portions of the recorded statements given to them by Toles and Harris. Thereafter, at 3:20 a.m., Morris signed a waiver of rights and gave an incriminating statement.

II.

A. Double Jeopardy

Based on the two robberies, Morris was convicted of two Hobbs Act violations for interfering with commerce by robbery and of five § 924(c) violations for either using, brandishing, or discharging a firearm during a crime of violence.¹ Morris asserts his convictions violate the Double Jeopardy Clause because the five § 924(c) counts are multiplicitous² -that is, they are based on the same behavior-and because the § 924(c) counts constitute the same offenses as the Hobbs Act counts. We review his double jeopardy claims de novo. See United States v. Pearson, 203 F.3d 1243, 1267 (10th Cir. 2000); United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir. 1997).

The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This protection applies not only to successive prosecutions, but also to successive punishments for the same offense. United States v. Dixon, 509 U.S. 688, 696 (1993). This Court has held that a "person may be prosecuted for more than one crime based on the same conduct (1) if each crime requires proof of a fact that the other does not or (2) if Congress has clearly expressed its intent to impose cumulative punishment for the same conduct under different statutory provisions." Pearson, 203 F.3d at 1267-68 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932), and Garrett v. United States, 471 U.S. 773, 778 (1985)); see also United States v. Overstreet, 40 F.3d 1090, 1094-95 (10th Cir. 1994) (holding that the Double Jeopardy Clause is not violated if Congress intended to impose cumulative punishment through two different statutes prohibiting the same conduct; thus, convictions for carjacking and § 924(c) counts did not violate the Double Jeopardy Clause).

1. Multiple § 924(c) Convictions

Multiplicitous counts are "improper because they allow multiple punishments for a single criminal offense." McIntosh 124 F.3d at 1336. "We have held that consecutive sentences may be imposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not constitute a single offense for double jeopardy purposes." United States v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992) (citing United States v. Chalan, 812 F.2d 1302, 1315-17 (10th Cir. 1987)). We have also concluded that concurrent sentences for multiple § 924(c) violations cannot be imposed where consecutive sentences are prohibited by double jeopardy. See United States v. Moore, 958 F.2d 310, 313-14 & n.5 (10th Cir. 1992).

Our multiplicity analysis focuses on the number of offenses underlying the punishments imposed. United States v. Callwood, 66 F.3d 1110, 1114 & n.4 (10th Cir. 1995); see also Chalan, 812 F.2d at 1317 (holding that because defendant only committed a single crime of violence for double jeopardy purposes, two § 924(c) convictions could not be sustained). Accordingly, we have held that a single predicate offense cannot sustain multiple § 924(c) violations simply because a defendant employed multiple firearms. See, e.g., United States v. Rogers, 921 F.2d 1089, 1092-93 (10th Cir. 1990); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir. 1990).

In the instant case, Morris was convicted of two Hobbs Act violations, each of which may serve as a predicate offense for a § 924(c) violation.³ As dictated by our precedent, the commission of two Hobbs Act violations can support convictions on only two § 924(c) violations. Accordingly, we conclude that Morris's rights under the Double Jeopardy Clause were violated when the district court entered five judgments of conviction on § 924(c) counts on the basis of only two predicate offenses.

Appellee argues that the district court's entry of judgment on additional § 924(c) convictions was harmless to defendant because the sentences run concurrently to those on the properly entered judgments of conviction. Our precedent, however, expressly forecloses this argument. See Moore, 958 F.2d at 313-14 & n.5. There are "potential adverse collateral consequences [arising from separate convictions] that may not be ignored." Ball v. United States, 470 U.S. 856, 865 (1985); see also Moore, 958 F.2d at 313 (quoting same).

For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction.... Thus, the second conviction even if it results in no greater sentence, is an impermissible punishment.

Ball, 470 U.S. at 865 (internal citations omitted).

Accordingly, we vacate the district court's judgment and sentence on the five § 924(c) convictions and remand for entry of judgment on only one § 924(c) conviction per Hobbs Act conviction-a maximum of two § 924(c) convictions-and for appropriate resentencing on the constitutionally sustainable number of convictions.

2. Hobbs Act and § 924(c)

Morris's second double jeopardy argument is that the § 924(c) violations constitute the same offenses as the Hobbs Act robberies and thus his convictions on the § 924(c) counts violate his constitutional rights. He asserts that the elements of a § 924(c) violation and a § 1951 violation are exactly the same.

Morris's argument must fail because it has already been decided by this Court in Pearson, 203 F.3d at 1243, and this panel can not overrule established Tenth Circuit precedent, see, e.g., In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) ("We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court."). In Pearson, we concluded that Congress clearly intended to "provide multiple punishments to defendants who commit violent crimes while using or carrying a firearm." 203 F.3d at 1268. We therefore rejected the defendant's contention that his convictions under § 1951 and § 924(c) violated the Double Jeopardy Clause because they were based on the same conduct. Id. In Pearson, we also explicitly considered and rejected Morris's argument that the Congressional intent test is inconsistent with Dixon, 509 U.S. at 696, which applies the same-elements test to both prosecutions and punishments. See Pearson, 203 F.3d at 1268 ("We are not persuaded by [the] argument that United States v. Dixon... overruled Garrett and Hunter and established Blockberger's same elements tests as the sole test for whether multiple punishments violate the Double Jeopardy Clause.").

B. Constitutionality of the Hobbs Act

Morris challenges the constitutionality of the Hobbs Act arguing its application to him is an unconstitutional exercise of Congress's power to regulate under the Commerce Clause. He asserts that this Court should reverse his convictions and overrule its prior Hobbs Act jurisprudence in light of the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995), as it applies to "isolated robberies not committed as part of racketeering acts" (Appellant's Br. at 7) or that this Court should "remand for a new trial" so that the jury can be instructed it must find the activity "substantially impacted" interstate commerce (id. at 16). Morris's argument relies on the proposition that to be constitutionally applied to non-racketeering robberies, the Hobbs Act requires a demonstration that a defendant's conduct more than minimally impacted interstate commerce. We review this challenge to the constitutionality...